King Radio Corp., Inc.

National Labor Relations Board - Board Decisions

Jul 9, 1968

172 N.L.R.B. 1051 (N.L.R.B. 1968)

KING RADIO CORPORATION, INC. 1051
King Radio Corporation , Inc. and Communications
Workers of America , AFL-CIO. Case
17-CA-3249
July 9, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On April 22, 1968, Trial Examiner Stanley N.
Ohlbaum issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices, and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion . Thereafter, the General Counsel, Charging
Party, and the Respondent filed exceptions and
supporting briefs and General Counsel filed an an-
swering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in this case,' and
hereby adopts the findings,' conclusions,' and
recommendations4 of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein, and orders that the Respondent,
King Radio Corporation, Inc., Olathe, Kansas, its
officers, agents , successors , and assigns , shall take
the action set forth in the Trial Examiner 's Recom-
mended Order, as so modified:
Delete paragraph A, 2, (c), (2), of the Recom-
mended Order and renumber the succeeding para-
graphs accordingly.
' The Respondent's request for oral argument is hereby denied, as the
record , including the exceptions and briefs , adequately presents the issues
and positions of the parties
' The Respondent has excepted to certain credibility findings made by
the Trial Examiner It is the Board's established policy not to overrule a
Trial Examiner 's resolutions with respect to credibility unless the clear pre-
ponderance of all the relevant evidence convinces us that the resolutions
were incorrect We find no such basis for disturbing the Trial Examiner's
credibility findings in this case Standard Dry Wall Products, Inc , 91 NLRB
544, enfd 188 F 2d 362 (C A 3)
' We do not adopt the Trial Examiner 's statement in the chronology sec-
tion under June 30, 1966, that the Respondent lost the election The
Respondent could not lose the election since it was not on the ballot Nor
do we adopt his observation that economic strikers are subject to discharge
for striking Neither economic nor unfair labor practice strikers are subject
to lawful discharge simply because they go on strike Further , in an ap-
parent inadvertent error, the Trial Examiner's Decision states that the sub-
contracting out was done from April 1, 1967, to June 13, "about 3-1/2
months of dealing ," whereas it is clear that this period is about 2-1/2
months
" Upon review of all the relevant factors herein, we shall delete frotrrThe
Remedy and Order sections the specific requirement that if the parties are
unable to agree upon an effective date for the collective - bargaining agree-
ment negotiated , then, upon application of any of the parties, the Board
will establish the date the parties would have made such agreement but for
the Respondent 's unfair labor practices We deem it inappropriate in this
case to depart from our existing policy with respect to remedial orders in
cases involving violations of Sec 8(a)(5) and, therefore, do not adopt the
Trial Examiner 's Recommended Order in this respect See Monroe Auto
Equipment Company, 164 NLRB 1051, fn 1, Saks and Company, 160
NLRB 682, 683
TRIAL EXAMINER'S DECISION
PRELIMINARY STATEMENT
STANLEY N . OHLBAUM , Trial Examiner : This un-
fair labor practices proceeding ( King III) alleging
violations of Section 8(a)(1) and ( 5) of the Na-
tional Labor Relations Act (29 U. S.C. Sec . 151, et
seq., as amended), based on a complaint issued on
August 30, 1967,' as amended on October 241 by
the Regional Director for Region 17 (Kansas City,
Missouri ), arising out of a charge filed by Commu-
nications Workers of America , AFL- CIO (Union),
against King Radio Corporation , Inc. (Respon-
dent), on June 1 , as amended on August 29, was
heard before me in Kansas City, Missouri, on
November 20-22 and December 12-19. All parties
were represented throughout by counsel , who were
afforded full opportunity to present evidence and
contentions , propose findings and conclusions, and
submit briefs. Time for that purpose having been
extended at counsel 's request , in February 1968,
briefs were received on behalf of all parties ; these,
together with the evidence , have been carefully
considered.
Upon the entire record' and my observation of
the witnesses , I make the following:
FINDINGS AND CONCLUSIONS
I. PARTIES; JURISDICTION
In the course and conduct of its business,
Respondent, a Kansas corporation engaged in
Hereafter all dates are 1967 unless otherwise specified
' The complaint and amended complaint were amplified by General
Counsel 's October 11 and November 8 bills of particulars
' Hearing transcript as corrected by my March 20, 1968, order on
notice
172 NLRB No. 109
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manufacture of airplane radios and related items at
its Olathe, Kansas, plants, annually purchases
materials and products valued in excess of $50,000
from suppliers outside of Kansas and sells goods
and products valued in excess of $50,000 to
customers outside of Kansas, directly in interstate
commerce.
I find that, at all material times, Respondent has
been and is an employer engaged in commerce
within the meaning of Section 2(6) and (7), the
Union a labor organization within the meaning of
Section 2(5), of the Act, and that assertion of ju-
risdiction herein is proper.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Issues
This case presents the following principal issues:
(1) Whether from January to about March 27
Respondent maintained, enforced, and discrimina-
torily applied among its employees an unlawful no-
talking rule; (2) whether from January to about
March 27 Respondent maintained, enforced, and
discriminatorily applied among its employees an
unlawful warning notice rule; (3) whether since
about December 1966 Respondent has engaged in
surface bargaining without real intention of
reaching agreement with the Union; (4) whether on
or about February 1, without bargaining in good
faith with the Union, Respondent unilaterally raised
bargaining unit employees' wages; (5) whether in
or about April, without bargaining in good faith
with or notifying the Union, Respondent uni-
laterally contracted out bargaining unit work; (6)
whether on or about May 9 Respondent failed and
refused to furnish necessary bargaining information
to the Union concerning Respondent's contracting
out of bargaining unit work; (7) whether Respon-
dent's unit employees' strike commencing March
27 was caused or prolonged by Respondent's unfair
labor practices and its refusal to comply fully with
previous Board orders (166 NLRB 649 (King I),
and 166 NLRB 180 (King II));4 and (8) whether on
or about March 29 Respondent threatened unfair
labor practice strikers in its employ with discharge
or permanent replacement and loss of economic
benefits unless they returned to work by April 3.
B. Background
Respondent, engaged in 24-stage assembly of air-
plane radios from chassis to completed unit, com-
menced operations in 1959 in Olathe, Kansas,
where it now employs around 300-350 employees
in two plants, known as Gold Crown (older) and
Silver Crown (newer), about 1-1/2 to 2 miles apart.
All production workers are female, compensated
on an hourly (not piecework) basis.
4 "King 1 ," 166 NLRB 649, TXD-237-67, Case I7-CA-3007, "King 11,-
166 NLRB 180, TXD-248-67, Case 17-CA-3123, and "King 111" (instant
The chronology of events antedating (Table I, at-
tached as Appendix B) and after (Table II, attached
as Appendix C) institution of this proceeding (King
III)4 will conduce toward clearer comprehension of
this case and its issues.
C. Respondent's Alleged Continuation of Violations
of Act Since King 1 (166 NLRB 649) and King II
(166 NLRB 180)
It is basically alleged in the instant case (King III)
that Respondent has continued to engage in viola-
tions of the Act, some the same as or similar in na-
ture to those involved and found by the Board in
King I and King II, and some new and different,
although arising out of the same background of cir-
cumstances.
Examination of the Board's decisions in King I
and King II, officially noticed here, indicates that
certain matters involved in or related to issues in
the instant case have already been before the Board
in those earlier cases: viz, (1) Respondent's no-talk-
ing rule and the manner of its enforcement; (2)
Respondent's warning notice rule and the manner
of its enforcement; and (3) Respondent's failure to
engage in good-faith bargaining with the Union as
Board-certified exclusive collective-bargaining
representative. Other issues are wholly new in the
instant case: viz, (1) Whether the alleged unfair
labor practices complained of, and each of them:
(a) Are the same, or substantially the same, as
those found to have been unlawful by the Board in
those earlier cases, and (b) have in fact continued
subsequent to the periods involved in those earlier
cases; (2) whether, unilaterally and without good-
faith bargaining with the Union, Respondent: (a)
On or about February 1 raised bargaining unit em-
ployees' wages, (b) in or about April contracted
out bargaining unit work, and (c) on or about May
9 declined to furnish to the Union essential bargain-
ing information concerning Respondent's contract-
ing out of bargaining work; and (3)(a) whether the
employees' strike commencing March 27 was
caused or prolonged by unfair labor practices on
Respondent's part and/or by its failure to comply
fully with the Board's orders in the earlier cases,
and, if yes, (b) whether Respondent threatened
such striking employees with discharge or per-
manent replacement or economic loss if they failed
to return to work by April 3.
1. Continuation of coercive practices involving
discriminatory absolute ban on talking; disciplinary
warning slips; and general harassment of union-
affiliated employees
In King I the Board ordered Respondent to cease
and desist from "maintaining or enforcing its dis-
criminatorily motivated no-talking and warning-
case ), TXD-168-68, Case 17-CA-3249
KING RADIO CORPORATION, INC. 1053
notice rules." Trial Examiner Ladwig's decision,
adopted by the Board in that case, indicates that
the unilaterally established "absolutely no talking"
and warning slip rule for violation thereof were
found in King I to have been placed into effect by
Respondent as "a `planned scheme or design' to
retaliate against its employees for their selection of
the Union" when the Company "embarked upon a
course of action immediately after the election to
show the employees that their statutory rights were
meaningless."
It is apparent from the proof in the instant case
that this situation underwent no change after the
period involved in King I and, indeed, until March
27, when, as will be described, Respondent's em-
ployees went out on strike in protest of this and
other unlawful labor practices.
Respondent's present or former employees,
Jamison, Guillory, Stauffer, Graves, Kasper, and
Roberts, testified as General Counsel's witnesses,
and Respondent's executives, Harris and Johnson,
and employees, Emerson, Ramey, Moreland, and
O'Brien on behalf of Respondent, with regard to
this aspect of the complaint in the instant case.
General Counsel's witness, Virginia Jamison, 1 of
20 final assemblers on Respondent's KX-160 as-
sembly line in its Silver Crown plant, testified that
she had been told from the time the Union was
voted in (June 30, 1966) "and it intensified as time
went on ... until we went on strike March 27,
1967," by Respondent's Assistant Superintendent
Roberta Johnson "many times" that "there would
be absolutely no talking" even "when I had not
opened my mouth."5 Mrs. Jamison is president of
the Local Union. She testified that the absolute
edict against talking has been enforced against her
"on an average of probably two or three times dai-
ly" by Company Superintendents or Supervisors
Johnson, Lawson, Jones, Ramey, and Duncan,6 as it
was against other employees as well, with the em-
ployees being under close observation with note-
taking and warning slip issuance by supervisors.
Mrs. Jamison testified that she was even warned for
saying "good morning" to a fellow employee or for
asking for a necessary worktool,' without ever
being asked or allowed to explain why she had
spoken or what she had spoken or what she had
said. According to Mrs. Jamison, she was even im-
mediately followed into the restroom by a super-
visor, such as on two or three occasions per day on
February 13, 14, and 15 by Supervisors Duncan,
Ramey, Lawson, O'Brien, or Roberta Johnson.8 She
was also threatened with being "taken to the of-
fice" for talking.
Respondent's Silver Crown plant coaxial cable
subassembler, Irene Guillory, testified that with the
advent of the Union, with no change in the plant
talking situation and no warnings prior thereto, her
immediate supervisor, Opal Kasper, warned her and
other employees that there would be no talking and
that Assistant Superintendent Roberta Johnson in
January 1967 "showed us some forms that if we
were caught talking three times, we were to sign
and we would be dismissed."9 According to Mrs.
Guillory, this situation worsened from January until
the employees went out on strike on March 27,
with herself, for example, warned or reprimanded
"two or three times a day easily" during that
period, for "talking," by her immediate supervisor,
Kasper, Assistant Superintendents Lawson and
Roberta Johnson, and Superintendent Bible.1° She
also observed and heard other employees similarly
warned or reprimanded upon asking for a worktool
or how to do some work (in accordance with previ-
ous supervisory instructions to do so).11 "The su-
pervisor would come down and tell us to stop talk-
ing whether we were helping them with their work
or not. . . . In January [ 1967], we were pressured
this year ... until we were out on strike." On no
occasion was she asked by a supervisor what she
had been talking about. She, too, like Mrs. Jamison,
was followed by Supervisors Lawson and Roberta
Johnson into the restroom (as well as to the
telephone) and observed while she remained there.
In February 1967 her supervisor, Kasper, told her
that "they had my name down and they were going
to bring me [a warning notice] to sign."12
Bettie Stauffer, who has worked in both of
Respondent's plants for 5 years as an assembler,
testified that in January 1967 employees were as-
sembled and told by Assistant Superintendent
Roberta Johnson that they "were going to have to
stop talking and she held up this sheet of paper and
she said if we got three of them we would be called
to the office and possible dismissal." Mrs. Stauffer
indicated that it may have been "every day" that
' Roberta Johnson did not testify, nor was her failure to do so explained
Of these, Respondent called only Ramey to testify and did not account
for its failure to call any of the others Ramey's testimony will be referred
to
' Mrs Jamison explained on cross-examination that some worktools had
to be shared, but that when she told a supervisor who directed her not to
talk that she had merely asked for a worktool , the supervisor nevertheless
admonished her that "You were not to talk "
" Of these, Respondent called only Ramey and O'Brien to testify and did
not account for its failure to call any of the others The testimony of Ramey
and O'Brien is alluded to below
Assistant Superintendent Roberta Johnson did not testify nor was hei
failure to do so explained Supervisor Kasper's testimony is recounted
below
10 Of these , only Kasper testified, the absence of the others being unex-
plained Kasper's testimony is recounted below
It
Mrs Guillory named three such employees , none was produced to
dispute her testimony Mrs Guillory indicated that this kind of request or
brief explanation was impossible or impracticable without the use of
speech
" As a result of what Mrs Guillory regarded as continued harassment of
this variety , she had in August 1966 consulted a physician , who had
prescribed tranquilizers-her first use of such-and had advised her to
quit According to Mrs Guillory, "by the time that we went on strike, I told
Mrs Jamison that if we didn 't go out [ on strike] or something happen
sometime soon, I would have to quit "
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she was told to "quit talking" without any concern
over what the talking was about, receiving such
warnings from Supervisors Basinger, Kasper,
Graves, Walker, and Roberta Johnson'13 even
though she had been talking in connection with her
work, such as when switches given to her by
another employee had to be reworked in order for
her to be able to do her required work. When she
explained this to her superior, she was told "to be
quiet." Between January 1 and the strike, Assistant
Superintendents Lawson and Roberta Johnson
would be "peeking through the shelves" watching
her and other employees constantly, and she was
even warned to "keep quiet" when she had not
been talking at all.'4
Frances Roberts, a small parts assembler in the
Gold Crown plant, testified that in and after Janua-
ry the no-talking edict was also enforced against
her and other employees there. According to her
testimony, in January her supervisor, Elaine Sheele,
and Gold Crown Assistant Superintendent McPher-
son15 gathered 8-10 employees into the office,
where Sheele "told us that she had been put on
probation for two weeks. . . . to get her line
straightened out and to stop the talking.... she was
under a lot of pressure, she thought that she would
turn in her resignation. . . . she didn't feel that she
had to act like a kid and give us a slip of paper to
sign." A day or two later, while talking to a fellow
employee without interfering with work, Sheele
notified them that they were "on report." When
Mrs. Roberts pointed out, at various times from
January to March, that Respondent's inspectors-
also rank-and-file employees, but, unlike Roberts,
not union members-working opposite her 16 were
continuously talking, laughing, joking, and playing,
without restriction, Sheele, as well as Assistant Su-
perintendent McPherson, indicated they could or
would do nothing about it or even report it.
Although warned regularly after January against
talking, no interest was ever evinced toward Mrs.
Roberts as to why or on what subject she had been
talking . Early in January, large desks and stools
were installed at a height 2 or 3 feet above em-
ployees' worktables, as observation posts for
assistant superintendents and supervisors. Accord-
ing to Mrs. Roberts, "the no talking rule was more
in January than in any other time. When I first
started there, we could talk unless we got real loud.
If we got real loud ... my supervisors ... would
say, 'Let's hold it down a little, girls .' But there was
never a no talking rule. You could talk."
Two production supervisors, Maxine Graves and
Opal Kasper, formerly in Respondent's employ a
different locations in its Silver Crown plant,"
testified as General Counsel's witnesses. Mrs.
Graves explained that assemblers are seated at long
tables side by side about a foot apart, facing others
on the other side of the table, with shelves along
the table centers; assemblers do not have separated
work cubicles. Mrs. Graves testified that except for
a notice, talk would generally not interfere with as-
sembly work done at the plant, that prior to the
union election it was customary for employees to
talk in the usual course, while working, and that to
her knowledge at no time did production suffer
because of inattention to work. She further ex-
plained that in connection with the work of these
production employees, it is necessary for them to
talk to each other occasionally, such as when spe-
cial tools, equipment, parts, or supplies are needed,
borrowed, or shared. Mrs. Kasper confirmed the
foregoing , giving as still another example the
process of testing cable ends made by two different
employees. The testimony of both Mrs. Graves and
Mrs. Kasper is to the effect that although after the
June 1966 union election the Company began
strictly applying18 a no-talking policy, it was not
until January 1967 that, according to Mrs. Kasper,
"they really started enforcing the rule," or, as
described by Mrs. Graves, "Actually it didn't get to
where they really sat their foot down until after
January [ 1967].... Then they said absolutely no
talking." Thus, on January 18 or 19, Mrs. Graves,
as a supervisor, was summoned to the office, where
Company Vice President Harris in the presence of
Plant Superintendent Bible19 "told me [Graves]
they were going to be watching me for the next two
weeks.... He said he knew I had told some girls to
stop talking and I had not written down their
names. . . ." When she explained that she had got-
ten busy before she could do so, Harris said,
"'Right when you tell them is the time for you to
write their names down. . . . Dorothy Bowlin, my
assistant superintendent, is going to be watching
you for the next couple of weeks and see how you
do.' He said, `That's all,' and I got up and left." On
January 19, according to former Supervisor Kasper,
12 or 13 production supervisors were called to the
office and instructed by Vice President Harris "that
there would be absolutely no more talking. It was
affecting production and it was affecting the grade
of the work that the girls were doing and he wanted
all talking stopped." Both supervisors, Graves and
Kasper, thereafter, from January until the em-
ployees went on strike on March 27-at which time
"None except Graves and Kasper testified , nor was their absence ac-
counted for The testimony of Graves and Kasper is recounted below
" As stated, neither Lawson nor Roberta Johnson was produced to
dispute this, nor was their absence explained
" Neither testified nor was any reason for their absence satisfactorily
established
"Mrs Roberts specifically named three such inspectorial employees
(Luellen, Chapin, and Bryant ), none of whom ( nor Sheele nor McPherson)
testified nor was their failure to do so accounted for However, Bryant's su-
pervisor , Moreland, testified that she cautioned these employees, none of
whom, she conceded, went out on strike , against "excessive " talking
Each was discharged on May 12, apparently without explanation
18 Mrs Kasper testified that prior to the June 30 , 1966, advent of the
Union, she had cautioned employees about talking only if "too loud or out
of hand .. excessive talking and just talking and not working "
19 Not disputed by Harris , who testified Mrs Bible neither testified nor
was her absence explained
KING RADIO CORPORATION, INC. 1055
enforcement of the no-talking rule ceased, accord-
ing to both Mrs. Graves and Mrs. Kasper (not-
withstanding the advent of a considerable number
of new employees at that time)-enforced the no-
talking edict with apparent severity and without re-
gard to what the talk was about. After January, as
testified by Mrs. Kasper, "I didn't bother to find out
what they were talking about. If they were talking
at all, I told them to be quiet. I didn't bother to find
out what they were talking about. Before that, if it
was business, I at least asked them what they were
talking about." Mrs. Graves swore that at this time
(mid-January) there was neither more talking than
before nor any production problem; and that,
despite Harris' January 19 statement about low
production and poor quality, her unit's monthly
quota was being fulfilled.20 At the conclusion of
Mrs. Graves' 2-week "probation" period, around
February 1-in the interim she, too, like Mrs.
Kasper, had been more vigorously enforcing an
absolutely no-talking edict, without regard to any
justification for talk-Mrs. Graves was recalled to
the office and this time praised by Vice President
Harris, who, after indicating she had been under
observation, told her, "If you keep your nose clean,
you could go higher than you are.... Just keep up
the good work." Her unit's production had not im-
proved in the 2-week period.
Testifying on this aspect of the case, Respon-
dent's vice president, Harris (called as an adverse
witness by General Counsel), admitted that on
January 19 he conferred with about 13 supervisors
from each plant regarding "enforcement of the no
talking and ... warning notice rule," directing
them "to hold the talking down ... and if they
didn't, they were to give these people a written
notice so they understood they were not to talk"
and "to enforce th[e] no talking and warning
notice rules," placing some supervisors from each
plant on probation for laxity in that regard .21 Harris
conceded that "the warning notice rule or no talk-
ing rule" has "[n]ever been rescinded by the com-
pany," whose supervisors have continued to be ex-
pected to "enforce the rule"; and that following his
described mid-January meeting with supervisors on
this subject, "it was more strictly enforced" until
the strike (March 27).
Respondent' s witness , Ila Emerson, an assembler
(a member of the Local Union bargaining commit-
tee but who returned to work during the pendency
of the strike), testified vaguely that when hired in
1962 she was cautioned in a general way on the
subject of "talk[ing] and get[ting] our work out,"
but conceded she was not told that she "could not
talk at all", and ended up by confessing, "I don't
really remember" what she was told "about talking
or anything else." She further conceded that she
works while she talks, without this interfering with
her work.
Respondent's witness and inspection unit super-
visor, Ellen Moreland, testified that since she came
to the plant in 1964 there has been a rule against
"excessive talking ... on the line" (emphasis sup-
plied) and that she has applied that rule to inspec-
tors working under her. Mrs. Moreland described a
meeting held prior to June 1966, where it had been
explained to employees "that there would be no ex-
cessive talking, that they could talk, but not in ex-
cess ." Mrs. Moreland conceded on cross -examina-
tion that there are matters in the line of work which
require employees to talk to each other, such as
requesting tools or for "an opinion," that all em-
ployees do this, and that she as a supervisor would
not object to this or consider it to be an infraction
of rules. On direct examination, Respondent's
Silver Crown production supervisor, Marion 0'-
Brien , similarly testified concerning a longstanding
plant rule "that there can't be a lot of excessive
talking, playing around ... goofing off in general. .
.. You don't sit for eight hours without saying one
word...." ( emphasis supplied); and indicated she
herself has applied the rule within reason, when
talking appears to be unconnected with or inter-
rupting work, or disturbing or distracting others.
On cross-examination , however, she allegedly
sustained almost a total loss of memory, also testify-
ing that she had no indication and "no idea" of
what she would be testifying about.
Finally, Respondent's supervisor and witness,
Hilda Ramey, a soldering instructor of all new em-
ployees, who corroborated Respondent's Personnel
Director Johnson's testimony about a general orien-
tation he had been giving new employees since the
fall of 1966, including the general reason for avoid-
ing idle talk while working, conceded that it is
necessary at times for production employees to talk
to each other in connection with their work, and
that Johnson in his orientations said nothing about
being subject to warning notices and discharge for
talking.
While favorably impressed with the manner in
which General Counsel's witnesses, including two
of Respondent's former supervisors, testified and
withstood cross-examination, I was unfavorably im-
pressed with Respondent's witnesses, Emerson and
O'Brien, who allegedly suffered memory lapses on
cross-examination and testified evasively. As has
been noted, much of General Counsel 's witnesses'
testimony, which as recounted above I credited,
was substantially unchallenged because of absence
of directly countervailing evidence, or through
Respondent's failure to produce contradictory
testimony by persons named by General Counsel's
witnesses as participants, or through admissions by
S0 There is no proof to the contrary nor to establish or support any asser-
tion of a diminution in production or quality at any material time
41 Harris described the warning notice rule , of which all employees were
notified after June 30, to be that if an employee receives three written
notices in his file he is subject to discharge According to Harris , since the
plant started in 1959 there has been in effect a rule "that there shall not be
excessive talking on the production line during working hours " ( Emphasis
supplied )
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent 's witnesses . To the extent of testimoni-
al conflict , I have no hesitation in accepting, as I
do, testimony of General Counsel 's witnesses, as
recounted above.
With regard to the allegations in the instant case
concerning Respondent 's non -talking and warning
notice rule , it is apparent and I find that those rules
and their application and Respondent 's general
postunion program of harassment of employees
remained at least unchanged or substantially
unchanged or if anything became more rigorous
subsequent to the dates and periods involved in the
Board 's earlier decision ( King I) and have con-
tinued as alleged in the pleadings in the instant
proceeding . Inasmuch as the Board has already, in
King I, stamped those rules and practices as unlaw-
ful, it is neither necessary nor would it be ap-
propriate here to reconsider that same basic
question , since the Board 's determinations in that
regard are required to be given effect here. Cf.
Iowa Beef Packers, Inc., 144 NLRB 615, 616, and
cases cited fn . 2; Insurance Agents' International
Union , AFL-CIO ( The Prudential Insurance Com-
pany of America), 119 NLRB 768, 773; 68, 773;
Ranco, Inc., 109 NLRB 998, 1009- 10, fn. 8.
It is accordingly found that , substantially as al-
leged in the complaint , from January to March 27,
1967 (when the unit employees went out on strike),
Respondent has maintained, enforced, and dis-
criminatorily applied among its employees unlawful
absolutely no-talking and warning notice rules, in
violation of Section 8(a)(1) of the Act . King Radio
Corporation, Inc., 166 NLRB 649 (King I).22 See
also N . L.R.B. v. Louisville Chair Company, Inc.,
385 F .2d 922, 924-925 (C.A. 6), cert. denied 390
U.S. 1013; N.L.R.B . v. Gate City Cotton Mills, 167
F.2d 647, 648-649 (C.A. 5).
2. Continuation of unilateral actions affecting
terms and conditions of employment of unit
employees, without bargaining with Union
a. February: unilateral wage raises and wage system
changes
The amended complaint alleges that on or about
February 1 Respondent unilaterally, without bar-
gaining in good faith with the Union, increased
wages of its employees, thereby violating Section
8(a)(5) and (1) of the Act.
It is undisputed that on February 1 Respondent
raised wages and made other changes in or directly
affecting wages, terms, and conditions of employ-
ment in the bargaining unit. On its face, such uni-
lateral changes constitute clear violations of Sec-
tion 8(a)(5) and (1) of the Act. N.L.R.B. v. Katz,
369 U.S. 736; N.L.R.B. v. Insurance Agents' Inter-
national Union, 361 U.S. 477, 485; N.L.R.B. V.
Crompton-Highland Mills, Inc., 337 U.S. 217; May
Department Stores d/bla Famous-Barr Company v.
N.L.R.B., 326 U.S. 376; Lloyd A. Fry Roofing Com-
pany v. N.L.R.B., 216 F.2d 273, 274, 276 (C.A. 9).
"We have repeatedly held it to be a refusal to bar-
gain collectively where an employer unilaterally
acts with respect to matters which normally are the
subject matters of collective bargaining, after his
employees have requested an opportunity to bar-
gain collectively with regard to such matters."
Singer Manufacturing Company, 24 NLRB 444,
470, enfd. 119 F.2d 131 (C.A. 7), cert. denied 313
U.S. 595. Respondent's defenses to this charge,
however, are (1) that some of the wage raises were
required by the amended Federal minimum wage
law effective February 1, and that the other wage
raises -concededly not required by that or other
law23-were made to preserve wage comparability
in its existing wage structure in the interest of fair-
ness and equity and so as not to risk losing em-
ployees; and (2) that the February 1 wage changes
were in fact bargained in good faith with the Union
until impasse.
I do not believe either of these contentions is
established by substantial credible evidence upon
the record as a whole, and I so find.
With regard to Respondent's first contention-
namely, that it was merely as a matter of equity
realigning the wages of employees unaffected by
the minimum wage law to those of employees af-
fected by that law-it may be said, basically, that
even if true and taken at face value this is not a
justification for such unilateral action. Further-
more, it is at least questionable whether the wages
of employees unaffected by the minimum wage law
change were merely accommodated to those of af-
fected employees; since, among other things, the
amounts of the "adjustments" were not the same
(although the minimum wage was raised 15 cents
per hour, from $1.25 to $1.40, some other wages
were not raised by the same amount, but only,10
cents per hour) and even if they had been a serious
question would exist as to whether such compara-
bility "adjustments," in order to be "equitable" as
Respondent claims, should not have been by per-
centages of the widely spread wage rates (e.g.,
15/140 of actual wage, rather than an across-the-
board figure, which, even had it been 15 cents,
would obviously have represented much less of an
increase to an employee earning , say, $2.15 per
hour, than to one earning only $1.25 per hour).
Moreover, as an examination of Respondent's
February 1 changes, which took the form of an an-
nouncement to its employees on its bulletin board
(G.C. Exh. 17-12), will show, the changes were not
" In King I the Board further found these rules to be in violation of Sec
8(a)(5) since unilaterally established without notification to or bargaining
with the Union
0 "TRIAL EXAMINER Did the company 's changes of February first go
beyond the requirements of the amendment to the federal [ minimum
wage) law)
"MR HAYNES Yes
KING RADIO CORPORATION, INC. 1057
confined to mere wage amount changes, but con-
stituted a substantial revision of the wage structure
and system itself in various respects.24 It is clear,
moreover, that what Respondent considered to be
"equitable" might have been-as it seemingly
was-different from what the Union considered to
be "equitable" insofar as employees unaffected by
the amended minimum wage were concerned; since
the Union of course did not object to the raise
required by the amended minimum wage statute
but only to Respondent's "equitable" raises and
other wage structure changes not required by the
statute. As to the latter, Respondent was clearly
under obligation to bargain in good faith with the
Union as Board-certified exclusive bargaining
representative of unit employees.
This leads to Respondent's second contention,
which is that it did in fact bargain in good faith with
the Union concerning these changes. I find that it
did not. To begin with, these February 1 changes
were communicated by Respondent to the Union
by letter of Respondent's attorney-negotiator,
Haynes, dated January 28 (a Saturday), received by
the Union on January 30 (a Monday), a scant 2
days before February 1. Thereupon, a "nego-
tiating" conference was hastily arranged for
and took place on the following day, January 31, at
which no agreement was reached, except that the
Union indicated that it of course had no objection
to any raise in the minimum wage as required by
the statute. Respondent's answer was to place into
effect by bulletin board announcement to its em-
ployees on February 1 all changes in the wage and
wage structure system as insisted by Respondent to
the Union in its letter of January 28 that it "intends
to institute" (G.C. Exh. 17-7, p. 2). No reason is
apparent why the wage changes, which Respondent
thus informed the Union on January 30 it "intends
to institute" and from which it did not deviate in
the hurried convoked "bargaining" session of
January 31, could not have been confined to those
required by the statutory amendment taking effect
on February 1. Respondent further contends, how-
ever, as its counsel states in its January 28 letter to
the Union, that the other (i.e., nonstatutory) "wage
increases" had priof thereto been "offered but re-
jected by the Union." However, (1) the Company's
previous offer in regard to "wage increases" (G.C.
Exh. 12) was not the same as its January
31-February 1 "offer," as a comparison of the two
will readily disclose (some January 31-February 1
rates (G.C. Exhs. 17-10 and 17-12) are actually
lower than on the Company's previous offer (G.C.
Exh. 12); and the Company's January 31-Februa-
ry 1 "offer" included far-reaching wage structure
system changes absent from the previous offer); (2)
negotiations with the Union were then (January) in
midstream-having been, as the Board found in
King I, unlawfully deliberately delayed by Respon-
dent until October 1966-and no impasse had been
reached, as to wages or otherwise; (3) the "nego-
tiating" session of January 31 evidences no
real disposition on Respondent's part to bargain
with regard to the matters covered by the wage
changes its counsel wrote the Union on January 28
it "intends to institute" on February 1. With regard
to this "negotiating" session of January 31, Respon-
dent's own witness, Johnson (its director of person-
nel), testified:
I recall Mr. Lovett [union representative]
telling Mr. Haynes [Respondent's counsel and
negotiator], "In other words, the company
knows it is going to do somethisig, put some in-
crease into effect, but we don't know what. Is
that right?" Mr. Haynes told Mr. Lovett that is
exactly right, we pretty well understood what
all these wage proposals meant to the company
in terms of total costs and we would be willing
to go with any of them. . . . Mr. Lovett also
asked Mr. Haynes if it was the company's
opinion that the new federal labor standard
act, the new minimum rates , required the com-
pany to give everyone a ten-cent increase; Mr.
Haynes told Mr. Lovett no ... but ... there
would be a lot of inequities existing in the
plant.... We felt the increase would help us in
maintaining our work force.
When, further according to Respondent's director
of personnel, Johnson, Lovett asked Haynes "if the
company was going ahead and putting in a uni-
lateral increase,"
Mr. Haynes said we hope very much that it
would not be a unilateral increase. We hoped
the union could see fit to agree with it, that it,
that it would not be unilateral. ... Lovett
replied to that he didn't think that was the case
at all. The situation was the company was try-
ing to undermine the union in its bargaining
23 Compare with Respondent 's February 1 changes ( G C Exh 17-12),
for example , its preexisting wage structure ( Resp Exh 14 ) Among other
things, Respondent 's February 1 changes altered the wage progression
penods ; established new categories of wage rates ("trainee," "starting,"
"base ," and "top"), eliminated "for two consecutive normal review
periods" the ordinary wage progression rates of employees , not affected by
the minimum wage law change , who were by Respondent's February 1 an-
nouncement given a 10-cent -per-hour increase , and by unilateral edict
therein "The Company defines " (G C Exh 17- 12) the "normal review
period[s]" for employees and "The Company will construe , pursuant to
this change " the first date for what it thereby unilaterally considers to be
"the first normal review period" (ibid ) Upon the basis of mutually cor-
roborative credited testimony of General Counsel witnesses Jamison, Guil-
lory, Stauffer, Roberts, Kasper (a former supervisor), and Graves (a former
supervisor)- in partial contradistinction to that of Respondent 's witnesses
Harris, Emerson , Ramey, and Johnson-I further find that prior to Respon-
dent 's unilaterally established wage structure changes on February 1, there
was no "merit review" of employees for wage rate progression purposes as
described in Respondent 's February 1 announcement , but that wage
progressions were automatic until the top level of the employee's job clas-
sification was reached , so long as the employee was retained in and not
discharged from Respondent 's employ, even the previous "merit system"
as described by Respondent's witnesses was not the same as that
established by Respondent's February 1 announcement Respondent's vice
president, Harris, also conceded that Respondent 's former 30-day proba-
tionary period has "within the last year" become 90 days
354-126 O-LT - 73 - pt 1 - 68
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
position in this respect. Mr. Haynes said no ...
there was nothing we would like to do more
than prepare a joint bulletin board notice
signed by both the parties. . . . that the union
agreed with what we were doing.... I do recall
Mr. Lovett making the statement to Mr.
Haynes, "What you are attempting to do is to
establish wages now for this year. Is that
right?" And Mr. Haynes said that was right....
I recall Mr. Haynes telling Mr. Lovett that we
did not intend to do more under any conditions
that we had offered him.
Q. [By Mr. Haynes] At the conclusion of
the meeting of January 31, do you recall
anything said by the company with regard to
what would be done, if anything, should the
union decide not to be agreeable to the joint
notice?
A. [By Mr. Johnson] As I recall it, Mr.
Haynes ... said to Mr. Lovett that we would
have to put this change into effect on February
the 1st.
Respondent's personnel director, Johnson,
further testified that at the next-to-the-last negotia-
tion session, on June 19, "Mr. Haynes told Mr. Pol-
lock [union negotiator] that the wage increase that
had been placed in effect on Fbruary 1 was all that
the company intended to do for this year." It would
thus appear that Respondent's February 1 bulletin
board announcement to its employees of these uni-
laterally established wage increases and wage struc-
ture changes for practical purposes aborted further
meaningful negotiation . Respondent 's own notice
posted to its employees on its bulletin board as a
part of its February 1 unilateral action states: "This
notice was presented to the Union Negotiating
Committee for approval on January 31, 1967, and
was rejected by the Committee today (February 1,
1967)."
The facts and considerations adverted to perhaps
take on an even more sinister cast when viewed in
the light of the background of this case and in the
stream of unfair labor practices perpetrated con-
temporaneously, as well as previously and sub-
sequently. The total picture provides persuasive
grounds for suspecting Respondent's prostestations
of pure desire to do the right thing toward its em-
ployees; but rather, in the world of cold facts, that
it seized upon the minimum wage law amendment
to introduce substantial changes in its wage struc-
ture system unilaterally, and to use the statutory
amendment as an excuse for continuing not to bar-
gain in good faith with the Board-certified union
with respect to wages and other basic terms and
conditions of employment, as will be shown.
It is accordingly found that, as alleged in the
amended complaint, on or about February 1, 1967,
Respondent increased wages of unit employees, and
that such action-other than any wage increases
required by the amended Federal minimum wage
law effective February 1, 1967-and changes in its
wage structure and system, unilaterally and without
bargaining in good faith with the Union, constituted
unfair labor practices in violation of Section
8(a)(5) and (1) of the Act. N.L.R.B. v. Katz, 369
U.S. 736.
b. April-June: contracting out bargaining unit work
The amended complaint alleges that in further
violation of Section 8(a)(5) and (1) of the Act
Respondent also contracted out bargaining unit
work without notice to or bargaining with the
Union.
The facts in this regard, substantially undisputed,
are as follows. On March 14, Respondent's person-
nel director, Johnson, wrote to Osawatomie (Kan-
sas) State Hospital:
Mr. James Harris, Vice President Manufac-
turing for King Radio, mentioned the other day
that you would be interested in specialized as-
sembly work on a contract basis. Since we
have several high volume, repetitive, hand as-
sembly operations we would be interested in
exploring this possibility further.
Mr. Wes Gluck, our Chief Manufacturing
Engineer, and I would like to visit your facility
to gain a insight into what work is best suited.
Relating this to our operations perhaps will
find an area that would be mutually beneficial.
Could a visit to your facility be scheduled? If
so, just let me know.
Osawatomie, a Kansas State Hospital for the
mentally ill, maintains a sheltered workshop manu-
facturing craft items and "whatever work that we
can find from outside industry"25-the latter since
August 29, 1966. The workshop employs about 26
persons (patients). The work is regarded by the in-
stitution as a form of therapy and patients are paid,
the working patients retaining the major portion
and the remainder going into a general welfare fund
of all patients in the ward.
Upon receipt of Respondent's quoted March 14
letter26 arrangements were made whereby Respon-
dent's personnel director, Johnson, and its produc-
tion superintendent , Mrs. Bible, visited the
workshop around March 23. A few days thereafter
workshop representatives visited Respondent's
plant, which was then being picketed, "to see if
there was some work we could do.... It was de-
cided while we were there that there was some
work we could do, and it was arranged for them
[Respondent] to bring the work down and explain
it to us and our patients." This work was the
"preparation of some wires that go in the radio."
The workshop had not previously done this type of
25 Unless otherwise indicated , this and other data concerning
Osawatomie is quoted from or based upon credited testimony of the
foreman of its sheltered workshop , Clayton R Whetston , produced as
Respondent 's witness
2e According to Whetston , a hospital social worker had visited Respon-
dent in September 1966
KING RADIO CORPORATION, INC. 1059
work. It was "a type of tedious and monotonous
work," which was handled by about five sheltered
workshop workers, necessary tools being furnished
by Respondent. "The agreement on what we were
going to charge for the wires was after we had
worked on them for a while. We took them back
and met with Mr. Harris [Respondent's vice pre-
sident] and Mrs. Bible [Respondent's production
superintendent] and agreed on what." Further, ac-
cording to the workshop's foreman, Whetston,
"What we do, when we make a contract with indus-
try outside the hospital we try to stay as near the
present cost of this item to industry as we can,
because we are not out to undermine labor. This
particular job was based on what it would actually
cost King Radio at $1.69 an hour." Respondent's
payment to the workshop was then calculated on
"how many wires could be produced by their regu-
lar employees ... which figured out about 27 an
hour." The first shipment of work to be done for
Respondent was received from it by the workshop
around April 1, and the last delivery of work by the
workshop to Respondent was on June 13. Thus,
about 3-1/2 months of dealings were involved.
Table III (attached as Appendix D) is a recapitula-
tion of the transactions.
Upon the basis of the foregoing and the assump-
tions detailed above concerning the projected
production yield of "regular employees," and by
dividing these total billings by $1.69 per hour,
Foreman Whetston estimated that the work was
translatable into 124 hours of work for Respon-
dent's "regular employees."
Upon learning of the foregoing, Union Represen-
tative Lovett visited the workshop and observed
work being performed there on Respondent's small
coaxial cables. On May 9 he wrote to Respondent
requesting that the Union be supplied with informa-
tion concerning this contracting out of work. At no
time was this letter answered, nor has the Union
ever been furnished with any of the requested data.
It will have been observed that the described con-
tracted out work continued for upwards of u month
following the Union's letter.
That unilateral contracting out of unit work or-
dinarily constitutes an unfair labor practice is not
open to serious doubt. Fibreboard Paper Products
Corp. v. N.L.R.B., 379 U.S. 203. Respondent con-
tends, however, that the contracting out was
discussed with Union Representative Lovett in
June, after the work had ceased. The nature and
extent of that "discussion" have already been
described-it consisted merely of a continued
refusal by Respondent to furnish to Lovett the in-
formation he had been requesting on that subject
since May 9. Such a "discussion" is of course no
answer to all to the unilateral contracting out of
unit work which had already taken place for over 2-
1/2 months. Respondent also urges that the con-
tracted out work must be regarded as de minimis,
since according to its calculations it is translatable
into only 124 or 126 hours of normal workers'
work, or perhaps between 3 weeks' and 1 month's
work. To begin with, this may not be regarded as
"minimal" as a matter of law; the calculation system
itself is subject to question; and all of these matters
could very well and should have been taken up with
the Union, since unit work was concededly in-
volved. Furthermore, in view of the timing of these
transactions, as part of the steady stream of unfair
labor practices issuing from Respondent in the
direction of the Union, it may be doubted whether,
as Respondent also suggests , Respondent 's motiva-
tion for the contracting out was a charitable or
compassionate urge on its part, as distinguished
from an attempt to augment or economize on its
labor supply. Again, if good faith exists, matters of
this nature are required to be bargained under the
Act. If Respondent was here prompted by un-
precedented and irresistible charitable or compas-
sionate urges, it is strange why it should have
chosen to be so secretive about them and not been
willing to display to the Union such evidence of its
high-mindedness.
Finally, Respondent urges-as expressed by its
counsel in closing argument-" that there is some
disagreement between the Board and the courts in
this area"; in his view enforcement of Board orders
having been "uniformly denied" where unit work is
contracted out during a strike in order to maintain
operations. To the limited extent that this may be
true under certain circumstances, it is apparent that
it is not true here and that those circumstances do
not exist here. Furthermore, there was no showing
or claim at any time that the contracting out in
question was necessary to keep Respondent's plant
going, and it is entirely obvious that it was not
necessary for that purpose.
It is found and concluded that Respondent
further violated Section 8(a)(5) and (I) of the Act
by contracting out bargaining unit work from April
to June 1967 without notice to or bargaining with
the Union.
3. Refusal to provide Union with data reasonably
needed for bargaining purposes
As indicated above, at no time was the Union's
May 9 letter to Respondent requesting information
concerning Respondent's contracting out of unit
work to Osawatomie, answered, nor was the
requested data ever supplied. The testimony of
Union Representative Lovett is undisputed that at
the June 20 negotiation meeting with Respondent,
Respondent's attorney-negotiator, Haynes, in-
formed him that he had "no intentions of furnishing
the information." I credit Lovett's testimony.
Inasmuch as the Union was clearly entitled to the
requested information for bargaining purposes,
Respondent's failure and refusal to comply with the
Union's request constituted a failure and refusal to
bargain and was in derogation of employees' rights,
in violation of Section 8(a)(5) and (1) of the Act,
and I so find and conclude. N.L.R.B. v. Toffenetti
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Restaurant Co., 311 F.2d 219, 220 (C.A. 2), cert.
denied 372 U.S. 977; N.L.R.B. v. Whitin Machine
Works, 217 F.2d 593, 594 (C.A. 4), cert. denied
349 U.S. 905.
4. Surface and bad-faith bargaining
We proceed to consideration of the amended
complaint allegations concerning Respondent's al-
leged " surface bargaining ... without any real in-
tention of reaching agreement with the Union."
Notwithstanding the designation of the Union as
the employees ' collective -bargaining representative
by overwhelming vote of the employees at the
Board -conducted election on June 30 , 1966,27
Respondent-as found by the Board in King I-un-
lawfully , in violation of Section 8(a)(5) and (1) of
the Act , in order to undermine the Union , delayed
collective bargaining until October 1966. It is un-
disputed that thereafter some 13 sessions were held
between Respondent and the Union for the purpose
of collective bargaining , from October 25, 1966,28
to June 20 , 1967, at all of which Respondent's
negotiator and chief spokesman was William G.
Haynes ( Respondent 's counsel here ) and the
Union's negotiator and principal spokesman was
Union International Representative Jack C.
Lovett . 29 Lovett ( on General Counsel 's behalf) and
Johnson ( Respondent 's personnel director, on
Respondent 's behalf) testified at length concerning
those sessions.
It would be impracticable and would here serve
no necessary purpose to recount the harrowing
peristalsis of these bargaining encounters, nor to
regurgitate the details of those confrontations, ses-
sion by session . They terminated abruptly on June
20,30 with Respondent 's walkout after refusing, in
effect , to change the 1967 wages and wage struc-
ture system it had unilaterally redesigned and an-
nounced on February 1 in the midst of "collective
bargaining."
The first bargaining session ," which took place
on October 25, 1966 , was brief and consisted in es-
sence of delivery of the Union's proposals (G.C.
Exh. 13) which were, after short comment,
received by Respondent's counsel, Negotiator
Haynes, for study and counterproposal.
Respondent gave its tlrst wage proposal to the
Union at the third bargaining session, held on
November 22, 1966 (G.C. Exh. 12). This set forth,
in relation to the various job categories or classifi-
cations, Respondent's proposed "minimum" wage
rates, as well as proposed wage rate progression
from "Trainee" through "Start" and "Base Rate"
to "Top Rate." Table IV (attached as Appendix E)
compares this with Respondent's then existing wage
rates (Resp. Exh. 14).
On December 1, 1966 (fourth bargaining ses-
sion), Respondent presented counterproposals
(G.C. Exh. 14) to the Union's October 25, 1966,
proposals (G.C. Exh. 13); including a revised wage
proposal (G.C. Exh. 14-V) which not only
proposed wage rates in some cases lower than
proposed by Respondent in its original (November
22, 1966; G.C. Exh. 12) wage proposal, but
proposed to set up a redesigned wage rate system.
Table V (attached as Appendix F) compares the
wage rates proposed by Respondent on December
1, 1966 (G.C. Exh. 14-V), with those which
Respondent had proposed on November 22, 1966
(G.C. Exh. 12).
Respondent's December 1, 1966, wage proposal
(G.C. Exh. 14-V) not only reduced the "base rates"
of pay in almost every category below those
proposed by Respondent on November 22, but also
proposed to introduce far-reaching substantive
provisions into Respondent's wage rate progression
and wage administration system. It provided that
(1) any wage increases beyond the proposed "base
rate" would be in the sole discretion of Respondent
based upon factors including the employee's "co-
operative attitude towards supervision" and that
such "shall not be subject to the grievance and ar-
bitration procedures"; (2) Respondent could in its
sole discretion designate employees as "leadmen or
women" in any classification and award them
premium pay; (3) Respondent would be free in any
2] Respondent had refused the Union 's request for recognition on April
12, 1966 , now about 2 years ago
2s A preliminary meeting, earlier in October ( 1966), appears to have
been for the purpose of obtaining necessary information in preparation for
the bargaining sessions to ensue
29 The sessions were also attended on Respondent 's behalf by its vice pre-
sident, Harris ( who did not testify thereon ), and its personnel director,
Johnson ( who testified ), and on the Union's behalf by its special represen-
tative , Pollock ( who testified ), as well as the Local's bargaining committee
i0 They have not been resumed since Both parties agree that any attempt
or request to bargain after June 20 would have been futile
" Descriptions of bargaining sessions herein are based chiefly upon
testimony, to the extent credited , of General Counsel's witness, Lovett, and
of Respondent 's witness , Johnson It would be wholly impracticable, nor is
it necessary , to attempt a line-by -line credibility resolution of testimonial
conflicts between these two witnesses ranging over the course of 13 bar-
gaining sessions I was well impressed with the testimonial demeanor of
Lovett, who testified fully and candidly , and withstood strong cross-ex-
amination extremely well Although I was also, but less, favorably im-
pressed with Johnson's testimonial demeanor , it did not escape me that he
testified in substantial part by resort to a typewritten script account or
description of what allegedly took place at the meetings , prepared not by
Johnson but by Respondent's counsel, Haynes, upon the basis in large part
of his ( Haynes ') reconstructed alleged recollections and notes which he
later dictated onto a tape Both Haynes ' original notes and the tapes are
said to have been discarded After studying such of Haynes ' typed manus-
cript as was admitted for limited purposes as indicated in the parties' stipu-
lation (G C Exh 22), and after carefully considering the record as a whole
and the demeanor of the witnesses, I am unpersuaded that Johnson's
testimonial utilization of the Haynes manuscript was limited to mere
refreshment of his recollection, particularly since he ( Johnson) had taken
notes of his own Notes or alleged notes, let alone alleged narrative recon-
structions of this type in a context of alleged discarding of original notes,
are not qualitatively a substitute for sworn , cross-examined testimony
under the personal observation of a trier of fact In describing the bargain-
ing sessions here, after weighing these and other applicable considerations
in my mind's eye and giving them the significance they deserve upon the
record as a whole, I have accordingly resolved resulting or residual issues of
credibility as indicated in the descriptions which follow and in findings
made herein
KING RADIO CORPORATION, INC.
case to pay higher than the specified rates to any
employee in its discretion.
The Union objected to Respondent's "revised"
wage proposal of December 1, 1966, upon the
grounds that (1) the amounts proposed were
"inadequate and unrealistic," with some even lower
than in Respondent's original (November 22, 1966)
proposal; (2) Respondent was proposing to change,
adversely to the employees, its existing method of
automatic progression pay increases of 5 cents per
hour each 30 days for 4 months32 (so that, for ex-
ample, under this proposal of Respondent, a new or
probationary employee would receive only a 10-
cent raise in the 90-day probationary period, in
place of the existing 15-cent raise resulting from a
5-cent raise each 30 days; or 5 cents less per hour
than was already in effect); and (3) introduction of
a so-called merit aspect to raises in Respondent's
sole discretion, as opposed to the existing auto-
matic wage progression system'32 was also a
backward step, adverse to the employees' interests
and existing status. Respondent, however, was in-
sistent upon these proposals and stated that it in-
tended to offer nothing further and "had nothing
further to offer."33 At this December 1 negotiation
session, the Union also remonstrated-without suc-
cess-against Respondent's proposed "bonus plan"
(G.C. Exh. 14-Z) permitting Respondent to
establish and pay bonuses in its sole discretion, also
without being subject to grievance-arbitration
procedures.34
At the negotiation session of December 7, 1966
(sixth session), Respondent-conceding it was a de-
parture from existing practice-proposed to extend
the probationary period from 30 to 90 days for all
benefits, as well as wages. At the ensuing seventh
session, held on December 9, 1966, or at the eighth
session (January 9, 1967),35 when the Union
inquired of Respondent why production clericals
(who had been included in the Board-certified bar-
gaining unit) were not included in Respondent's
wage proposal (G.C. Exh. 14-V), Respondent's
answer was that "many of these jobs had been
restructured" by it and that it now disagreed with
as As explained supra, fn 24, in another connection , upon the basis of the
credited testimony there described of General Counsel's witnesses there
specified , I find that the existing automatic pay progression system was as
recounted by General Counsel's witnesses, and that Respondent was in fact
proposing to (and later, on February 1, 1967, unilaterally did, as already
found supra) change that system adversely to the interests of its employees
in that as well as other respects
" At no time did , nor does , Respondent claim financial inability or
economic hardship Respondent 's attorney -negotiator expressly disclaimed
any such contention
" It was not until June 16, 1967, considerably after the employees went
out on strike ( March 27 ), that Respondent indicated the possibility that it
might be willing to forego this or accede to the Union 's request that such
matters be negotiated with the Union
" The possible discrepancy in the record in this regard as to the date
when the above incident occurred ( Respondent 's witness , Johnson , testify-
ing it was on January 9 , 1967, and General Counsel's witness , Lovett , testi-
fying it was on December 9 but later possibly correcting himself on redirect
examination to January 9) is unimportant
's So characterized by Union Representative Lovett, who, according to
1061
the Union as to "who were to be properly included
in the bargaining unit." According to testimony of
Johnson, when Lovett raised this matter and ob-
jected to Respondent's indicated abolition of a bar-
gaining unit job, Haynes "said we had to make this
move in the interest of efficiency and therefore we
felt there was no alternative but to go ahead and do
it." No reason was advanced or is apparent in
justification why this step could not have been
discussed with the Union before it was taken,
Respondent's action and attitude having foreclosed
meaningful discussion.
At the eighth bargaining session, held on January
9, Respondent's wage proposals were again brought
up, but the discussion was again essentially the
same as that which had taken place on December 1
(fourth bargaining session) and which has already
been described. Respondent "again reiterated they
had offered all they intended to in the area of
wages" and "did not intend to spend more money
than they had already proposed." When the Union
continued to take "strong exceptions"36 to Respon-
dent's insistence that it would pay any employee
any amount of wages it wished at any time in its
own discretion, regardless of the stipulated rates
which would constitute only a "minimum,"
Respondent refused to modify its position on this-
nor did it at any time thereafter do so.37
At the January 9 session, there continued to be
major disagreement not only upon the foregoing
basic subject of wages, wage rate progression, and
the wage structure system, but also with regard to
"the whole area of seniority," Respondent insisting
upon lodgment in its hands of the absolute power to
deprive employees of seniority as a disciplinary
measure. There was also here-at this eighth meet-
ing more than 6 months following the election-a
continuation of previous discussion, according to
Johnson, "as to who was recognized here, was it
just the international." When Lovett indicated it
was just the International (in accordance with the
Board's certification), Haynes (as testified by John-
son) "maintained the position" that the local as
well as the International "should be part of the
Johnson, in continuing to object to this proposal , stated that " if the com-
pany was serious about their wage progression that we weren 't even in the
same ball park "
„ According to Union Representative Lovett, when he, at the January 9
session , made a "slotting proposal " based upon Respondent 's existing prac-
tice of automatic wage increases each 30 days for the first 90 days and
thereafter each 90 days until the top of the rate was attained, Respondent
refused but offered to raise the starting rate provided the Union would
agree to Respondent 's "merit aspects" of the wage system Respondent was
proposing, including Respondent's proposed right to pay higher rates in its
own discretion without bargaining , and Respondent reiterated that this was
"absolutely all they intended to offer in the area of wages " The Union re-
jected this as inferior to the existing wages and wage structure, which it was
in the respects indicated above
According to Personnel Director Johnson, Haynes indicated that
Respondent would drop its proposed "merit" aspect if the Union agreed to
Respondent's proposed top rates , but that if Respondent raised its offer it
would continue to insist on the "merit" aspect it was proposing To the ex-
tent that Johnson's version in this aspect is inconsistent with that of Lovett,
I credit Lovett
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recognition clause" if Respondent was expected "to
deal with the local."38
In this posture of the matter, with Haynes stating
that Respondent "knew the union had made wild
promises to the employees during the organizing
campaign and they [Respondent] intended to see
the union did not pay off on these promises,"39 the
parties agreed (according to Johnson) that "there
was no chance in going on as things were at that
time and with that we adjourned" sine die.
On January 12, Respondent communicated to
the Union a "further wage proposal" (G.C. Exh.
17-1) of a 10-cent across-the-board increase, pro-
vided (1) the Union would accept Respondent's
above-described December 1, 1966, wage rates
and wage progressions proposal (G.C. Exh. 14-V)
and (2) that this would cover two "consecutive
review periods," eliminating the necessity for
"review" for those two periods, and (3) that this
would not be applicable to employees entitled to
more than 10 cents under Respondent's proposed
"training and starting rate." The Union did not
respond.
It has already been described at length in another
connection (Respondent's February 1, 1967, uni-
lateral wage increases and wage structure system
changes, supra, sec. II, C, 2, a) that on January 28
(Saturday), Respondent's attorney-negotiator,
Haynes, forwarded a letter to the Union, received
by the latter on January 30 (Monday), announcing
that "as of February 1, 1967, the Company intends
to institute wage increases to all bargaining unit
employees not to exceed those offered but rejected
by the Union."" As already explained in detail
above, at the resulting meeting hastily convoked
and held on January 31 (ninth bargaining session),
Respondent's proposal dated January 28 was
discussed. I credit Lovett's testimony that Haynes'
letter of January 28, received January 30, was the
Union's first knowledge or indication that Respon-
dent intended to place these wage rate and struc-
ture changes into effect or that this action was in
contemplation.
The wage scale which Respondent stated in its
January 28 letter it "as of February 1, 1967 ... in-
tends to institute" and which it reiterated at the
January 31 "negotiation " session it would place
into effect whether or not the Union agreed, and
which Respondent refused in any way to modify or
discuss further, is that which it had proposed to the
Union on December 1, 1966 (Table V, see Appen-
dix F), with the following exceptions: (1) The
January 3 1-February 1 scale establishes a "top
rate' per hour " minimum " for sheetmetal assem-
blers, whereas the December 1 proposal had no
"top rate" for that job classification category; (2)
the scale announced by Respondent on January
" Johnson added that it was subsequently suggested that if the Interna-
tional would agree by letter to Respondent that it " would be responsible for
the acts of the local , then it would not be necessary to include the local in
the recognition clause "
31-February 1 states that new hires in any classifi-
cation may be hired as trainees at the trainee rate
until the first Monday following "60 days of em-
ployment," before progressing to the "starting
rate," whereas the period specified in the
December 1 proposal was "90 workdays"; (3) un-
like the December 1 proposal, the January
31-February 1 announcement states that all em-
ployees not affected by the "wage and hour in-
crease" will receive a 10-cent-an-hour increase and
"will not be reviewed for another wage increase for
two consecutive normal review periods," and "The
Company defines a normal review period for em-
ployees between the starting rate and base rate for
their classification as ninety (90) days; and for em-
ployees between base rate and top rate for their
classification as six months" and the first normal
review period "to be [Query: commence?]" January
30, 1967.
In the discussion concerning this which occurred
between the Union and Respondent on January 31
(ninth bargaining session), the Union stated that it
recognized the amended Federal minimum wage
law required payment of an hourly minimum wage
of $1.40 effective February 1, but objected to any
other unilateral wage changes not negotiated with
the Union because of their "undermining effect on
the union." Haynes stated that Respondent "felt
like the employees needed a wage increase." Lovett
agreed about the need but indicated, among other
things, that the proposed format of the increase was
ambiguous (it was unclear whether it applied to ac-
tual pay or to job classification rates), and "pointed
out to the company that it was the opinion of the
union that this wage increase was put into effect for
the purpose of undermining the efforts of the union
and that it was unilateral in nature and that we did
not have and had not had sufficient time to bargain
with the company on this item." When the Union
asked if Respondent was now for the first time
proposing a change from 90 to 60 days for trainees
(cf. G.C. Exh. 14-V with G.C. Exh. 17-10),
Respondent said that it "did not consider this as a
change proposal to the Union." Various substantial
aspects of Respondent's announced February 1 ac-
tion (e.g., the "across-the-board" increase; treat-
ment of "new hires") had not been negotiated or
discussed before. Since the minimum wage law in-
crease from $1.25 to $1.40, effective February 1,
applied only to the minimum rates in effect at
Respondent's plants, it affected only some trainees
in those plants.
According to Johnson, Haynes conceded to
Lovett that the changes thus announced by Respon-
dent were not limited to that required by the
amended minimum wage law. Further according to
Johnson, when Lovett said to Haynes, "`What you
'" Credited testimony of Lovett, undenied by Haynes
'0 As indicated above, Respondent took the position that these wage
changes were being made " as a result of the Fair Labor Standards Act
minimum wage requirements ," a position I have rejected herein
KING RADIO CORPORATION, INC. 1063
are attempting to do is to establish the wages now
for this year. Is that right?' . . . Haynes said that was
right.... I recall Mr. Haynes telling Mr. Lovett that
we did not intend to do more under any conditions
that we had offered him." Also according to John-
son, when Lovett asked Haynes "if the company
was going ahead and putting in a unilateral in-
crease," Haynes replied that if the "union could see
fit to agree with it, that it would not be unilateral."
Q. [By Mr. Haynes] At the conclusion of
the meeting of January 31, do you recall
anything said by the company with regard to
what would be done, if anything, should the
union decide not to be agreeable to the joint
notice [proposed by Respondent to be posted
to the employees on February 1, announcing
Respondent's new wages and wage structure]?
A. [By Mr. Johnson] As I recall it, Mr.
Haynes .... said to Mr. Lovett that we would
have to put this change into effect on February
the 1st.
Respondent went ahead as it had stated in its
counsel-negotiator's letter of January 28 and on
January 31 it would and on February 1 posted on
its bulletin board and placed into effect the
described new wages and wage structure system,
stating in the announcement to the employees,
without explanation, that it had been "rejected by
the [Union] Negotiating Committee today (Februa-
ry 1, 1967)." A few days later, the Union reported
to employees by handbill (G.C. Exh. 17-7a) that
the Union had learned at 1:30 p.m. on January 31
from Respondent for the first time of its intention
to raise wages 10 cents an hour across the board
and otherwise in addition to making the change
required by the minimum wage law amendment;
and that the union negotiating committee had
unanimously rejected this proposal because (1) in-
sufficient notice had been received from Respon-
dent as to its intent; (2) wage increases other than
required by the minimum wage law amendment
"are the proper subject for collective bargaining";
(3) union approval would render difficult if not im-
possible further wage negotiations, since Respon-
dent's new progression schedule would have been
placed into effect; (4) Respondent would be plac-
ing into effect substandard wage proposals rejected
by the Union in negotiations while continuing to
refuse other contract provisions; (5) Respondent's
move was designed to create dissension and un-
dermine the Union; and (6) Respondent was con-
tinuing to engage in unfair labor practices, includ-
ing refusal to bargain in good faith.
On February 13, Respondent's negotiator-coun-
sel petitioned the Board to decertify the Union as
bargaining representative.4'
On March 23, the Union transmitted to Respon-
dent a group of counterproposals covering all mat-
ters in dispute , "which , when taken into account
with the articles previously agreed to by the Com-
pany and the Union'41 should allow us to consum-
mate a complete agreement between the parties."
There ensued a bargaining session, the 10th, on the
following day, March 24. At this 10th session, ac-
cording to Personnel Director Johnson, the recog-
nition clause was still under discussion, with the
Union still taking the position that since it had been
certified by the Board it should be recognized by
Respondent and that the local union (not being cer-
tified) need not be recognized; but the Company
still maintaining that the local should be recognized
and should be a party to the agreement. It would
appear that this particular issue was resolved when
(still according to Johnson) Union Representative
Hubbard indicated that this "could be done"
although it would be the first time for the Union in
17 years. Also at this March 24 meeting, Respon-
dent's proposed "management rights" proposal, on
which it had also stood fast, and a union counter-
proposal were discussed at some length. Respon-
dent's proposal (G.C. Exh. 14-C), which it never
modified, is as follows:
II. MANAGEMENT RIGHTS
1. The Company retains sole and exclusive
responsibility for the management of the busi-
ness and the direction of their working force
and complete authority to exercise those rights
and powers incidental thereto, including the
right to make unilateral changes except as
specifically modified by any provision con-
tained herein, including by way of general ex-
ample and not by way of limitation, exclusive
authority to terminate the nature and location
of its operations, the sole right to hire,
discipline, discharge for just cause, lay off, re-
call, assign shifts, assign work or make job as-
signments, promote and transfer employees;
the methods, processes and standards of opera-
tions; to determine the starting and quitting
time and number of hours to be worked; the
right to subcontract work and determine the
method of payment to employees, subject only
to the restrictions and regulations governing
the exercise of these rights as expressly pro-
vided herein.
2. The Company shall retain the right to
" The petition was subsequently (April 4) denied by the Board (Case
17-RC-5060) Respondent 's application (upon which decision was
reserved) to strike these official Board documents from the record is de-
nied, as is its application for leave to present proof herein as to the merits of
its decertification petition, and its objection of official notice being taken
thereof is overruled
` = A number of matters, quantitatively seemingly numerous but regarded
by the Union as qualitatively not particularly significant-what is
frequently referred to in lawyers' vernacular as "boilerplate "-had, of
course, as is entirely usual in these situations , either been "agreed" to or
accepted by the parties, or , perhaps more realistically , not been objected to
or been the subject of significant if any disagreement between them
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
determine the location in which its operations
shall be conducted and may, in its discretion,
relocate any operation.
3. The foregoing enumeration of rights of
management is not intended to exclude other
management rights not specifically enu-
merated. The only limitation on any manage-
ment right shall be by express limitation by
specific provision contained in this Agreement.
4. The Company shall specifically retain the
right to establish new departments within the
bargaining unit, and employees assigned to
such departments shall be paid in accordance
with the provisions of Article of this Agree-
ment.43
5. Provisions of this Article shall not be sub-
ject to the grievance procedure or arbitration
unless a specific Article of this Agreement so
provides.
6. It is fully understood that despite a com-
pany's right to initiate grievances under the
grievance procedure of this Agreement, this
shall not affect or bar or require the Company
in any way to use such grievance procedure as
a condition of taking legal or administrative ac-
tion of any type as may be required against the
parties of this Agreement.
The union counterproposal (G.C. Exh. 15, art. II)
states:
The right to manage the plant and to direct
the work forces and operations of the plant
subject to the limitations of this agreement, is
exclusively vested in, and retained by the Com-
pany.
Continuing to stand fast on its own proposal,
Haynes, according to Johnson, rejected the union
counterproposal as "not sufficiently broad," but ap-
parently still without opening the door to any alter-
native or modification of Respondent's extraor-
dinarily if not almost uniquely oppressive proposed
provision (see, e.g., par. 6 thereof, supra).
Also at this March 24 meeting the Union sug-
gested but Respondent rejected a union "just cause
discharge clause" counterproposed by the Union to
Respondent's type of discipline and discharge
provision (G.C. Exh. 14-H, which should be read
to be appreciated and is too lengthy to be quoted
here), which the Union unsuccessfully urged was
not only not based upon Respondent's existing
practices but was an unreasonably extensive if not
novel specimen of rigorous draftsmanship. Among
other things, the Union had been pointing out that
under Respondent's "management rights" proposal
no discharge or discipline-particularly important
because of the extremely comprehensive, rigorous,
and harsh treatment of the latter subject-was sub-
ject to the grievance and arbitration provision." At
no time did Respondent modify this "management
rights" proposal nor accept nor suggest any alterna-
tive to the Union's counterpproposals on that sub-
ject.
Still another topic discussed at this 10th bargain-
ing session on March 24 was seniority and its loss,
with Respondent continuing to adhere to and refus-
ing to modify its original position that loss of
seniority was a matter essentially for Respondent to
administer within its own discretion. Respondent
also refused to modify its position on its proposed
no-strike, no-lockout provision.
So far as wages and wage structure are con-
cerned, these also were discussed at the March 24
session . However, as the Union had reported and
predicted to the employees in its handbill following
Respondent's unilateral February 1 wages and wage
structure changes (and as Johnson's testimony also
indicates), "The company again said they had of-
fered all they intended to offer in the area of wages
for this year,"',' Haynes expressly remarking, "We
are not willing to negotiate on wages for this year","
and, further (as he had in the past), that he
(Haynes) "knew that the union had made a lot of
wild promises to the employees during the course
of the organizing campaign and they weren't going
to wind up with a wage increase this year" and that
he was "going to see to it that the union didn't pay
off on it."" Respondent's witness, Johnson,
testified that Union Representative Hubbard re-
marked, "I feel you are afraid to reach an agree-
ment" and that "if the union was willing to agree to
the company's proposals that the company ...
would start to look for a way to back down."
Although the meeting ended with Haynes agreeing
to draft a counterproposal on all items not agreed
upon, for consideration in 10 days or 2 weeks, it
was conceded by Johnson that Respondent never
drafted or submitted this.48
The three final bargaining sessions occurred on
June 16, 19, and 20. In the 1 1 th session, on June 16
(the first since inception of the strike on March 27,
discussed below), Respondent' s original "manage-
ment rights" proposal, quoted above, was again
raised for discussion. Respondent had not since it
proposed this provision originally (November 22,
1966) deviated therefrom, nor did it do so at the
June 16 session or thereafter, nor did it at any time
indicate it was prepared to "talk about this and
43 1 e , Respondent 's proposed new wages , wage rate progressions, and
wage structure system ( G C Exh 14-V) to which the Union never agreed
and which in part Respondent unilaterally established anyway on February
1,1967
" Although Respondent ultimately-but not as of March 24-offered to
make discharge and discipline subject to grievance -arbitration , this was at
no time attempted to be described in tangible written form, nor are its
boundaries clear
43 Respondent indicated willingness to discuss wages ( a mandatory sub-
ject of bargaining ) only for succeeding years (i e , 1968 on)
" Emphasis supplied Undenied by Haynes
4' Also undenied by Haynes
4x Asked why, Johnson said because "the strike began " (on March 27)
Asked what the strike had to do with proposals, his candid answer was,
"Nothing I suppose " In this he was, of course, eminently correct , since a
strike does not toll the statutory bargaining obligation N L R B v J H
Rutter-Rex Mfg Co , 245 F 2d 594, 596 (C A 5)
KING RADIO CORPORATION, INC. 1065
modify it." Also discussed was Respondent's no-
strike, no-lockout provision; here, again, although
Union displayed willingness to negotiate on it,
Respondent continued to insist essentially on its
proposal without evidencing willingness to bargain
or discuss it. And, when Respondent's highly objec-
tionable, rigorous discharge and discipline provi-
sion was again brought up, although the Union still
proposed to discuss and negotiate on this subject,
Respondent here again indicated it was "not willing
to make any changes in the proposal."" Respon-
dent's witness, Johnson, testified that he believes
that at this June 16 meeting Respondent withdrew
its incentive plan and bonus proposal. However, the
meeting ended with the Union indicating it would
prepare and submit a "complete package" proposal
over the weekend for a meeting on June 19.
The 12th, semifinal negotiating session was held
on June 19. At this session, the Union-as it had in-
dicated it would-proposed a complete contract
(G.C. Exh. 16), as well as an agreement terminat-
ing the strike. It would seem that little if anything of
a substantive nature was discussed at this meeting,
other than an exchange or expression of views, per-
haps principally by Respondent's Attorney-Negotia-
tor Haynes, with regard to Trial Examiner Ladwig's
decisions in King I and King II, which had
meanwhile been handed down. The flavor of the
session is supplied by testimony of Personnel
Director Johnson:
Mr. Haynes told Mr. Pollock [union
representative] that we were very surprised to
have Paragraph 6 in the proposal, entitled
"Termination of Strike," that we thought we
had just set down and discussed the unfair
labor practice charges in the Trial Examiner's
decision, and here was a paragraph making it
necessary to comply with the N.L.R.B. deci-
sion before the strike could be terminated... .
Mr. Haynes said perhaps we had better review
the Trial Examiner's decision, and the Trial
Examiner's decision was put on the table and
discussed point by point.
With regard to the Union's "complete package"
proposed collective agreement itself (G.C. Exh.
16), Respondent's position was merely that it
wished to study it. Accordingly, the session was
recessed until the following day.
The 13th and final "bargaining session" took
place on June 20, almost a year after the Union had
achieved its success at the polls. At that meeting,
according to Johnson, the Union's "complete
package" proposal of June 19 was discussed. The
result, according to Johnson, after 8 months of
negotiation and a year after the election, was: as to
"management rights," no alteration in Respon-
dent's position, since Haynes again rejected the
Union's counterproposal as not "broad enough"; as
to hours of work, Haynes was unwilling to consider
grievance meetings as necessarily being worktime;
Haynes was still insistent that there be no right of
recourse by an employee or the Union to the
grievance-arbitration procedure until after 90 days
of employment, and the Union agreed to this;
Haynes refused to agree to any provision making
the agreement binding upon a successor to the busi-
ness, and the Union indicated it would give way on
this; overtime was again discussed, but evidently
Respondent did not agree with the union approach
that it be "spread as evenly as possible"; Haynes
continued in his position rejecting the Union's sug-
gested "just cause" as ground for discharge, as "not
sufficiently broad' 1;5' as to holidays, Respondent
would not agree to include Veterans Day as a
holiday; and the Union agreed to Respondent's
request to extend the time for notice of renewal to
30 days, with the Union taking the position that it
should be free to strike on such matters (only) as
Respondent was maintaining it would not agree to
make subject to grievance-arbitration, still accord-
ing to Johnson, "The company response is if we are
going to have a grievance and arbitration clause it
is going to be tied to a no strike, no walk-out
clause." When the parties returned to discussion of
wages, according to Johnson, "Mr. Haynes said to
Mr. Pollock that it appeared as if we had simply
reached an impasse on wages." When Pollock (for
the Union) said that "additional money had to be
there this year"51 but that "within that [Union's
`package'] proposal [of June 19] was some room to
move if the company was interested and contained
therein was a framework for a settlement," Haynes
said that:
[i]t appeared that the continuing of the meet-
ing would be fruitless ... [and that the Com-
pany was] prepared to meet with the union and
discuss anything at any time, but as far as wage
increases were concerned, the company was
not prepared to change that increase [made by
it on February 1, 19671 and not prepared to
offer52 more for 1967.53
" According to Johnson, the matter of recognition was also still being
bandied about at this late date, almost a year after the election When the
Union agreed to write a letter assuming responsibility for acts of named
local officers, this matter was seemingly (the wording of such a letter was
not agreed upon or negotiated) laid to rest Also discussed at the June 16,
as well as June 19 and 20, session was the question of termination of the
pending strike The latter discussions are treated infra in connection with
consideration of the nature of the strike which commenced on March 27
50 According to Johnson, the parties indicated a letter might suffice list-
ing specific grounds for discharge, however, no such letter was proposed
nor the contents thereof discussed or negotiated nor even attempted to be
drafted It would, for example, be difficult to see why a proposed provision
unacceptable when contained in an "agreement" would suddently become
acceptable when contained in binding letter form
" According to Lovett , while continuing to insist it would not offer or
discuss any wage change for 1967 beyond the changes which it had uni-
laterally placed into effect on February 1, Respondent made a proposal for
wages after February 1, 1968 (G C Exh 17-52)
"On cross-examination , Johnson corrected "offer[ed] to "put into ef-
fect" (on February 1, 1967), so as to make it clear that Haynes was refer-
ring to the wage changes which Respondent had "put into effect" on
February 1, 1967
" Johnson conceded that Haynes told Lovett at this June 20 meeting
that Respondent was not "pleading inability to grant further increases " He
also testified on redirect examination that Company Vice President Harris
(who did not testify as to this , nor as Respondent 's witness at all) indicated
Respondent would consider more money "if the profit sharing plan" were
dropped for bargaining unit employees
1066 DECISIONS OF NATIONAL LABOR REi ATIONS BOARD
With the foregoing, according to Johnson, "The
company representatives got up and left the room."
There has been no meeting or attempt at a meeting
since then.
Respondent contends that it negotiated in good
faith until impasse. As evidence it points to "agree-
ment" reached on miscellaneous possible provi-
sions normally if not invariably included within col-
lective agreements. As to this, Union Representa-
tive Lovett, characterizing these provisions as
"God's, country, and motherhood" items, testified
(without denial by Company Negotiator Haynes)
that Respondent insisted throughout upon conduct-
ing the negotiations based upon the Company's,
and not the Union's, written proposals; and that the
true fact in any case is that although as of the ter-
mination of negotiations on June 20 the Union had
agreed to 12 of Respondent's items, Respondent
had concurred in only 1 of the Union's items-
namely, recognition of the Union (which had been
certified by the Board in the prior year).54 But even
assuming that there was agreement-in many in-
stances simply the absence of disagreement-on
various items as Respondent contends, agreement
on many small things does not cancel out the neces-
sity for continuing to attempt to agree on one or
more big things; and when a "big thing" is a man-
datory subject of collective bargaining, such as here
(wages, etc.), there is an absolute statutory obliga-
tion to do so. Although it is not here suggested that
all of the items as to which the parties agreed (or as
to which they simply did not disagree)55 were
necessarily "little things," certainly they did not
match or measure up in importance to the "big
things" on which no agreement was reached from
the very first day or apparently earnestly sought or
purposefully discussed (except and only except
upon its own terms) by Respondent. Although
discussion only upon one's own terms is, to be sure,
purposeful discussion, it is not collective bargain-
ing. Prominent among the "big things" which were
from the very start an insurmountable Gilbraltar of
Respondent's making was, of course, the subject of
wages and the nature of the wage progression
system and wage structure, as well as the subject of
discharges and discipline-surely subjects of the
most fundamental significance to every employee
and every union. Notwithstanding the Union's offi-
cially certificated representative status, Respondent
from start to finish of the negotiations in effect in-
sisted upon excluding the Union from any meaning-
ful role (other than to surrender its role) in either
of these key matters, and thereby to euchre the
Union into a position to which no self-respecting
representative carrying out fiduciary obligations to
principals (here, the Union to its principals, the em-
ployees) could possibly agree, and a position which
would in effect render sterile the employees' at-
tempted exercise of their statutorily guaranteed col-
lective-bargaining rights notwithstanding the Board
certification. In a sense it was an attempt at a
private decertification of the Union.
"Impasse" (which Respondent also urges) in its
very nature, in relation to collective bargaining,
presupposes an unpremeditated blockage reached
as the result of good-faith bargaining in a spirit of
genuine effort to compose differences in order to
arrive at agreement; not a dead end erected by a
"bargainer's" announcement of a fixed position from
which he is unwilling to risk being persuaded, much
less dislodged. "Take it or leave it" on mandatory
bargaining subjects does not satisfy the bargaining
requirements of the Act. General Electric Company,
150 NLRB 192, 193; Brown & Root, Inc., 86 NLRB
520, 521, enfd. sub nom. N.L.R.B. v. Ozark Dam
Constructors, 190 F.2d 222 (C.A. 8). Here, it will
have been noted, Respondent not only announced
and adhered to, but actually placed its announced
position-with regard to the all-important, key fac-
tor of wages, wage rate progressions, and wage
structure system-into effect, unilaterally, on
February 1 and thereafter tenaciously declined to
modify it or even to discuss the subject for the en-
tire year. Any "impasse" thereon was therefore an
"impasse" of Respondent's own deliberate crea-
tion. It would be ludicrous to suppose that a party
could by such a self-created "impasse" relieve
itself of its statutory obligation to bargain.
"Such complete foreclosure of discussion of a
proper subject of collective bargaining is a negation
of the good faith bargaining required by the
statute." The Andrew Jergens Company, 76 NLRB
363, 366, enfd. 175 F.2d 130 (C.A. 9), cert. denied
338 U.S. 827. With Respondent's position thus by
its own act cemented on this core issue of collective
bargaining, particularly after its February 1 action
unilaterally placing into effect, during the course of
"bargaining," its own predetermined position, ensu-
ing "bargaining" sessions were predestined to
become a "fruitless marathon" (N.L.R.B. v. Amer-
ican National Insurance Co., 343 U.S. 395, 404).
When a party to collective bargaining is intractable
on a mandatory subject because of what it has itself
unilaterally brought about during the course of the
s'' The long drawn -out prolegomena to even this recognition-with
Respondent insistent until the June 1967 meetings , a year after the elec-
tion, that not only the Board-certified Union but also the uncertified local
(see, e g , G C Exh 14-A, preamble ) be expressly recognized and made a
party to the agreement-and the manner of its eventual resolution, by
union acquiescence to accommodate Respondent 's demands in this respect
by separate letter-presumably fully as binding as if included in the agree-
ment itself, but, it is to be noted, the wording of such a letter , which in view
of the breakup of negotiations was never prepared , might itself predictably
have opened up a new wrangle-have already been described Although
the parties may be free to add a party , other than the certified Union, to the
collective agreement, if they mutually so desire, this is not to say that one of
the parties may insist upon such a condition , particularly where , as here, it
is to include recognition as bargaining representative of an uncertified par-
ty, in the presence of a currently Board-certified exclusive collective-bar-
gaining representative Cf N L R B v Wooster Division of Borg- Warner
Corporation , 356 US 342
ss Lovett testified that the matters upon which " tentative agreement"
was reached were essentially boilerplate , " insignificant " items for the most
part incorporating existing plant practices
KING RADIO CORPORATION, INC. 1067
bargaining , this is not " impasse " such as will serve
to justify its failure to continue to bargain. Nor does
it partake of the character of that good-faith bar-
gaining in a spirit of honorable give-and-take
discussion in order to strike a deal through sincere,
even though spirited, effort to compose differences,
which the national labor policy favoring collective
bargaining, as set forth in the preamble to the Act,
contemplates.
Respondents attitude toward bargaining with the
Union is well exemplified by the testimony of Per-
sonnel Director Johnson conceding that Respon-
dent on February 1 (during the course of collective
bargaining) announced and established, and has
since maintained in effect, not only the wages and
wage progressions described, but also a wage
system under which it may pay any employee in any
job classification category any wage, higher to any
extent than any wage specified in its wage scales, in
Respondent's sole and unreviewable discretion,
without consultation or bargaining with the Union.
Johnson further conceded that when the Union ob-
jected to this proposal, it was the "company's posi-
tion that this should be done without discussion
with the union "; and that, when the Union asked
whether this was not unilateral, Haynes' response
was that Respondent "hoped the union could see fit
to agree with it, that it would not be unilateral," but
that Respondent was determined in any event to
establish it as announced. And, as Johnson further
testified, on June 20, when the curtain was finally
rung down on the year-long "fruitless marathon,"
Respondent was still insisting upon its initial posi-
tion in this matter, as well as upon-to mention but
another all-important matter-its stringent provi-
sion which it denominated "management
rights ," quoted above.
It is to be observed that the genre of Respon-
dent's "negotiations" is entirely consistent with the
pattern of other unfair labor practices which it had
been perpetrating, as found by the Board in King I
and King II and in a sense a mere logical extension
thereof in pursuance of the central objective of
frustrating its employees' attempt to avail them-
selves of their statutorily guaranteed right to bar-
gain collectively. We cannot be blind to these other
happenings forming the backdrop to the "bargain-
ing sessions "-or to which the "bargaining ses-
sions" formed the backdrop, depending upon the
point of view and the configuration of stage to au-
dience and the makeup of the latter. Considerable
doubt would appear to be justified as to whether
the industrial relations climate engendered by
Respondent's repeated seeding of its factory clouds
with these unfair labor practices, as found in King I
and King II (to say nothing of those herein), was
conducive to bringing forth a viable bloom in the
form of a collective agreement negotiated through
desire really to bargain in good faith and deal with
a certified Union. The accompanying chart, Table
VI (attached as Appendix G) shows the juxtaposi-
tion of unfair labor practices ( without reflecting the
continuing nature of some ) with negotiating ses-
sions.
Close scrutiny of the painful peristalsis of alleged
bargaining here, viewed upon the field of the
record as a whole , persuasively establishes absence
on Respondent 's part of that honest resolve to at-
tempt to arrive at a meeting of the minds , through
the usual communicative channels of purposeful
trading , which is of the essence of good -faith bar-
gaining . Rather , there is established on Respon-
dent 's part the intention to create the appearance
of bargaining while subverting its actuality-"sur-
face bargaining ," with subsurface iceberg frozenly
immobile to the idea of really treating with a union.
The total purpose and effect was to protract a play-
acted "negotiation " in an atmosphere of continuing
unfair labor practices , in order to demean and un-
dermine the elected and certified Union in the eyes
of employees as a cumbersome , useless apparatus
they would be better off without . Respondent's
total behavior commencing with the advent of the
Union on the scene makes this abundantly clear;
there is an absence of evidence of such behavior
before . Such actions , however , designed as they are
to interfere with , coerce, and restrain employees in
the exercise of rights which Congress has seen fit by
law to guarantee them free of such fetters, and
designed as they are to make a mockery of the col-
lective-bargaining obligation , are violative of Sec-
tion 8 ( a)(5) and (1) of the Act . I so find.
The determinations here made are well within
the frame of accomodative deference to the statu-
tory admonition that the bargaining obligation does
not require bargaining parties to agree to concede.
But-since there remains the obligation to bargain,
and since bargaining is not merely an empty
ritual-the bargaining obligation does require that
through good-faith negotiation parties must
honestly at least attempt to arrive at agreement.
This means that a party may not "negotiate" with a
closed mind ( since this is inconsistent with even an
attempt to agree), or actually or in effect decline to
negotiate on a mandatory bargaining subject, such
as wages or wage structure , or other term or condi-
tion of employment . Act, Section 8(d). "While
Congress did not compel agreement between em-
ployers and bargaining representatives, it did
require collective bargaining in the hope that agree-
ments would result ." N.L.R.B. v. Truitt Mfg. Co.,
351 U.S . 149, 152. "[ S]incere effort ... to reach a
common ground" (N.L.R.B. v. Montgomery Ward
& Co., 133 F.2d 676, 686 (C .A. 9)) is of the es-
sence of good-faith bargaining . N.L.R.B . v. Reed &
Prince Manufacturing Company, 118 F. 2d 874, 885
(C.A. 1), cert . denied 313 U.S. 595; N.L.R.B. v.
Boss Manufacturing Company, 118 F.2d 187, 189
(C.A. 7); Globe Cotton Mills v. N.L.R.B., 103 F.2d
91, 94 (C.A. 5).
Mere quantity or length of bargaining sessions
does not establish or equate with good -faith bar-
gaining ; indeed , the reverse may sometimes be true.
"The Act not only requires that the parties go
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
through the motions of negotiation, but it also de-
mands that they negotiate in good faith."
Leventhal, J., in United Steelworkers of America,
AFL-CIO [Roanoke Iron & Bridge Works, Inc.] v.
N.L.R.B., 390 F.2d 846, 852 (C.A.D.C.). See also
Wright, J., in United Steelworkers of America,
AFL-CIO [H. K. Porter Company, Inc.] v.
N.L.R.B., 363 F.2d 272 (C.A.D.C.), cert. denied
385 U.S. 851, granting in part motion to clarify 389
F.2d 295 (C.A.D.C.); N.L.R.B. v. Montgomery
Ward & Co., 133 F.2d 676 (C.A. 9); N.L.R.B. v.
George P. Pilling & Son Co., 119 F.2d 32 (C.A. 3).
The Supreme Court has instructed us that "the Act
does not encourage a party to engage in fruitless
marathon discussions." N.L.R.B. v. American Na-
tional Insurance Co., 343 U.S. 395, 404.
It follows from the foregoing that the right not to
agree or concede, or to refuse a particular proposal
or make a concession, may not be utilized "as a
cloak ... to conceal a purposeful strategy to make
bargaining futile or fail." N.L.R.B. v. Herman
Sausage Company, Inc., 275 F.2d 229, 232 (C.A.
5). Another way of saying the same thing is that
"impasse" (which may excuse the necessity for
further bargaining) cannot exist in the absence of
good-faith bargaining. N.L.R.B. v. Herman Sausage
Co., Inc., supra; N.L.R.B. v. Andrew Jergens Co.,
175 F.2d 130, 136 (C.A. 9), cert. denied 338 U.S.
827.
Consideration of these basic principles in terms
of a few of the circumstances of this case will suf-
fice to show that Respondent's conduct falls within
their ban. To begin with, Respondent was still mak-
ing a big issue a year after the election, and not-
withstanding the Board's certification of the Charg-
ing Party, over Respondent's insistence on extend-
ing recognition also to the local union-which had
not been certified by the Board-as well as includ-
ing it as a party to any contract. (It would seem that
this was on a theory of agency. However, it is
legally unessential to include an agent of a con-
tracting party as a party to the contract; and recog-
nition as bargaining representative in the face of
the Board's certificate vesting such representative
capacity exclusively in the International Union was
certainly unnecessary if not altogether improper.)
Such intolerable boggling over a recognition clause
with a new union holding a fresh Board certifica-
tion is so unusual as itself to be indicative of inten-
tion to erect roadblocks to agreement. Cf. Mont-
gomery Ward & Company, 37 NLRB 100, 121,
enfd. 133 F.2d 676 (C.A. 9).
Another and more important example is, of
course, the matter of wages, wage rate progres-
sions, and the entire wage structure system. The
Act itself in so many words (Sec. 8(d)) requires an
employer to bargain upon these subjects. As has
been shown, by its unilateral action of February 1
establishing new wage scales, wage progression
rates, and a redesigned wage structure system,
Respondent violated this obligation in a major way.
It is eminently clear that the mere fact that a party
bargains on other issues in an attempt to reach
overall agreement , while at the same time frustrat-
ing agreement on a substantial issue , does not con-
stitute compliance with the statutory obligation to
bargain in good faith on mandatory bargaining is-
sues ( such as wages).
[The] § 8(d) [provision] that the statutory
duty [to bargain] does not compel a party "to
agree to a proposal or require the making of a
concession " . . . does not permit an em-
ployer-by a mere claim that it was only en-
gaged in " hard bargaining " . - to escape
condemnation when it has refused to bargain
in good faith. This proposition is clear enough
when the party's good faith is negatived by its
purpose to frustrate any agreement whatever.
[See United Steelworkers of America, AFL-CIO
(H. K. Porter Co.) v. N.L.R.B., 363 F.2d 272
(C.A.D.C.), cert. denied 385 U.S. 851
(1966).] We think it is equally clear that a
company ( or union ) may not assume an in-
transigent position in bad faith on a mandatory
subject of bargaining even though its purpose
to frustrate an agreement on that issue coin-
cides with a willingness to reach some overall
agreement. This follows from N.L.R.B. v. Katz,
369 U.S. 736 ... (1962), holding that the Act
condemns a refusal to negotiate in fact about a
mandatory subject even though the employer
in good faith desires some overall agreement.
[Leventhal, J., in United Steelworkers of Amer-
ica, AFL-CIO (Roanoke Iron & Bridge Works,
Inc.) v. N.L.R.B., 390 F.2d 846, 849-850
(C.A.D.C. ). ]
Unilateral wage changes during the course of bar-
gaining justify the inference of lack of intention on
the employer's part of arriving at a negotiated col-
lective agreement. May Department Stores d/b/a
Famous-Barr Company v. N.L.R.B., 326 U.S. 376;
N.L.R.B. v. National Shoes, Inc., 208 F.2d 688
(C.A. 2); N.L.R.B. v. Barrett Company, 135 F.2d
959 (C.A. 7); Stanislaus Implement and Hardware
Company, Ltd., 101 NLRB 394, enfd. 226 F.2d 377
(C.A. 9); J. B. Cook Auto Machine Company, Inc.,
84 NLRB 688, enfd. 184 F.2d 845 (C.A. 6). No
fair inference may be made here other than
Respondent was seeking-by its February 1 uni-
lateral wage action-and in fact did, remove the is-
sues of wages for that year and of " merit increases"
from the bargaining table. Cf. N.L.R.B. v. J. H. Al-
lison & Company, 165 F.2d 766 (C.A. 6), enfg. 70
NLRB 377, cert. denied 335 U.S. 814; Aluminum
Ore Company v. N.L.R.B., 131 F.2d 485 (C.A. 7),
enfg. 39 NLRB 1286. In N.L.R.B. v. Crompton-
Highland Mills, Inc., 337 U.S. 217, after bargaining
sessions from August to December 19 on various
subjects including wage rates, the employer on
December 19 made its first and final wage increase
offer, which the union rejected. On January 1, the
union was notified and a notice was posted on the
mill bulletin board by the employer establishing an
across-the-board wage increase. The Supreme
KING RADIO CORPORATION, INC. 1069
Court held that it was error to set aside a Board
remedial order based upon the Board's determina-
tion that the employer had thereby violated Section
8(a)(5).
In the instant case it is clear, indeed conceded,
that Respondent's February 1 wage increases were
not limited to, or except in insubstantial part
required by, the Federal minimum wage law
amendment. The Board is in no sense required to
accept Respondent's contention that its action was
justified upon the basis thereof. Cf. Korn Industries,
Inc. v. N.L.R.B., 389 F.2d 117, 122-123 (C.A. 4).
It will be recalled that not only were Respon-
dent's February 1 unilaterally established new wage
rates and wage rate progressions not limited to that
required by the minimum wage law amendment ef-
fective on that date, but Respondent also on that
date introduced other changes into its wage rate
structure system, and then as well as thereafter in-
sisted upon a provision giving it exclusive control
over upward variation of the established rates
through what it labeled "merit increases." Without
dwelling upon the other aspects of Respondent's
unilateral February 1 action, which seem plain,
with regard to the so-called merit increases aspect
of Respondent's position from the very start, it is to
be noted that the subject of "merit wage increases"
is a mandatory bargaining subject and that a uni-
laterally imposed merit wage increase system dur-
ing bargaining constitutes an unfair labor practice.
N.L.R.B. v. Katz, 369 U.S. 736, 745-747. Since
unilateral action on a mandatory bargaining subject
by an employer obligated to bargain is a violation
of Section 8(a)(5), the Act is similarly violated by
an employer who under given circumstances insists
in "negotiations" on unilateral control of any "term
or condition of employment." N.L.R.B. v. Katz,
supra; N.L.R.B. v. Insurance Agents' International
Union, 361 U.S. 477, 485; N.L.R.B. v. Crompton-
Highland Mills, Inc., 337 U.S. 217; May Depart-
ment Stores v. N.L.R.B., 326 U.S. 376; Lloyd A. Fry
Roofing Company v. N.L.R.B., 216 F.2d 273, 274,
276 (C.A. 9). In N.L.R.B. v. J. H. Allison & Co.,
165 F.2d 766 (C.A. 6), cert. denied 335 U.S. 814,
the Court enforced a Board order requiring an em-
ployer to bargain with the union concerning "`merit
wage increases' . . . and to grant no merit wage in-
creases to such [unit] employees `without prior
consultation with the Union' . . . and, upon request,
to furnish the union `full information with respect
to merit wage increases, including the number of
such increases, the amount of such increases, and
the standards employed in arriving at such in-
creases."'
Still another Respondent-imposed shoal on which
the negotiations foundered from the very start was
Respondent's oppressive and unreasonable provi-
sion which it denominated "management rights." It
is clear that because management undoubtedly has
the right to operate its own business does not mean
that collective bargaining and other statutory
obligations can be satisfied or avoided by the sim-
ple expedient of excluding the necessity to engage
therein, by means of a provision labeled "manage-
ment rights." The proposed "management rights"
provision here has been set forth above. It is an un-
fair labor practice for an employer in collective
bargaining to insist , at any rate without bargaining
thereupon (cf. N.L.R.B. v. American National In-
surance Co., 343 U.S. 395, with May Department
Stores v. N.L.R.B., supra), on a provision giving the
employer in effect total unilateral control over all
phases of wages, hours, and other terms and condi-
tions of employment which the express wording of
the Act requires him to bargain about. Majure v.
N.L.R.B., 198 F.2d 735 (C.A. 5); N.L.R.B. v.
Westinghouse Air Brake Co., 120 F.2d 1004 (C.A.
3); Aluminum Ore Company v. N.L.R.B., 131 F.2d
485 (C.A. 7). Such insistence would seem to be in-
dicative of a desire to oust the Union or relegate it
to a wholly nominal and superfluous role, or to
abort the negotiations by inviting the normal reac-
tion to such an irritative stimulus-namely, refusal,
since insistence upon such a provision is in effect
demand for an instrument of unconditional sur-
render by the Union of its Board-certificated status
and role .16 It would seem that in the instant case
Respondent's insistence upon reservation to itself
of the right to make unilateral wage changes, cou-
pled with its insistence upon its aforequoted
management rights provision, in the light of its con-
tinuing unfair labor practices, justifies an inference
of bad faith and intent to avoid reaching and seal-
ing a genuine bargain with its employees' cer-
tificated representative. Cf., e.g., Franklin Hosiery
Mills, Inc., 83 NLRB 276; South Carolina Granite
Company, 58 NLRB 1448, 1461, enfd. 152 F.2d 25
(C.A. 4); V-O Milling Company, 43 NLRB 348,
359.
Our discussion of these examples imports neither
assumption of power nor desire to "sit in judgment
upon the substantive terms of collective bargaining
agreements." N.L.R.B. v. American National In-
surance Co., supra, 404. "But at the same time it
seems clear that if the Board is not to be blinded by
empty talk and by the mere surface motions of col-
lective bargaining, it must take some cognizance of
the reasonableness of the positions taken by an em-
ployer in the course of bargaining negotiations. See
Wilson & Co., Inc. v. N.L.R.B., 8 Cir., 1940, 115
" Even where the employer is willing , unlike here, to make its unilateral
wage increases subject to grievance procedure, it may be violative of the
Act '[T]his was not the collective bargaining required by the act It was
not the giving and taking in open discussion and negotiation contemplated
by Congress Rather it was reversion to the procedure of the past upon the
part of the employer effectuating removal of bargaining concerning the
exact subject matter at issue The method adopted by petitioner [em-
ployer] ignored this [statutory] standard of conduct and amounted in its
essence to a statement that 'we shall determine the increases and they will
stand as what we are willing to do, subject only to the right of individuals to
present grievances "' Aluminum Ore Co v N L R B , supra, 487
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F.2d 759, 763." N. L.R.B. v . Reed & Prince Manu-
facturing Company, 205 F .2d 131, 134 (C.A. 1),
cert . denied 346 U.S. 887.
In "M" System , Inc., 129 NLRB 527, 549, the
Board stated:
Although offering the Union substantially
nothing of value in return , the Respondent
tenaciously insisted as a condition to agree-
ment on the inclusion of other clauses through
which it sought to undercut the representative
status of the Union by imposing shackles on
the Union 's exercise of its statutory rights,
while reserving for itself virtually complete and
unreviewable autonomy over wages, job
tenure , and other significant terms and condi-
tions of employment.
In Vanderbilt Products , Inc. v . N.L.R.B., 297 F.2d
833 (C.A. 2), in holding an employer in violation of
his duty to bargain in good faith , where, among
other things , the employer was insisting on the ab-
solute right to discharge or lay off, the court quoted
with approval the following language from N.L.R.B.
v. Reed & Prince Manufacturing Company, 205 F.2d
131, 139 (C.A. 1), cert. denied 346 U.S. 887:
It is difficult to believe that the Company with
a straight face and in good faith could have
supposed that this proposal had the slightest
chance of acceptance by a self -respecting
union , or even that it might advance the
negotiations by affording a basis of discussion;
rather , it looks more like a stalling tactic by a
party bent upon maintaining the pretense of
bargaining.
In Alba - Waldensian , Inc., 167 NLRB 695, 696, 697,
in finding an employer in violation of the statutory
requirement of bargaining in good faith , the Board
also (Order Supplementing Decision and Order)
spoke of "Company proposals which no self-
respecting bargaining representative could accept."
Overwhelming weight of authority makes it abun-
dantly clear that in determining presence or
absence of the good faith of a party ( employer or
union ) to collective bargaining all attendant and
surrounding circumstances must be appraised. In
"M" System , Inc., 129 NLRB 527, 548, the Board
stated:
The issue of Respondent 's good faith at the
bargaining table must be evaluated against the
backdrop of other conduct of Respondent, dis-
closing , it is found, an attitude of unrelenting
hostility to the Union and a disregard of em-
ployee statutory rights. As noted above, the
Board has already adjudicated the Respondent
guilty of unfair labor practices in two earlier
proceedings .... As has been stated , good faith
involves a question of motive or state of mind
that must be determined by inference drawn
from all the surrounding circumstances. The
Respondent 's aforesaia unlawful activities are
clearly relevant to that question . N.L.R.B. v.
Reed & Prince Manufacturing Company, 205
F.2d 131, 139-140 ( C.A. 1). It is difficult to
reconcile the Respondent's efforts to defeat its
employees' statutory rights with a simultaneous
sincere desire on its part to attempt through
the give and take of collective bargaining to
find some mutually satisfactory basis for agree-
ment with the Union.
In N.L.R.B. v. Herman Sausage Co., Inc., 275
F.2d 229, 232 (C.A. 5), the court emphasized that:
... bad faith is prohibited though done with
sophistication and finessse. Consequently, to
sit at a bargaining table, or to sit almost for-
ever, or to make concessions here and there,
could be the very means by which to conceal a
purposeful strategy to make bargaining futile
or fail. Hence, we have said in more colorful
language it takes more than mere "surfacing
bargaining," or "shadow boxing to a draw," or
"giving the Union a runaround while purport-
ing to be meeting with the Union for purpose
of collective bargaining."
It is reiterated that there is here no disposition to
weigh the merits or desirability of the various
proposals made by the parties. We cannot, how-
ever, ignore the statutory commandment of good-
faith bargaining. Since good faith involves the state
of mind in which that quality is present or absent,
positions taken by a bargainer at the bargaining ta-
ble, refined in the sieve of his contemporaneous ac-
tions while he is purportedly engaged in the act of
bargaining, truly evidence his real state of mind. Cf.
N.L.R.B. v. Darlington Veneer Co., 236 F.2d 85,
88-89 (C.A. 4); N.L.R.B. v. National Shoes, Inc.,
208 F.2d 688, 691-692 (C.A. 2); N.L.R.B. v. Reed
& Prince Mfg. Co., 205 F.2d 131, 139-140 (C.A.
1), cert. denied 346 U.S. 887. In White's Uvalde
Mines, 117 NLRB 1128, enforcement denied in
part 255 F.2d 564 (C.A. 5), the Board held an em-
ployer's bargaining positions-comparable to those
of Respondent here-to have been in violation of
or to evidence violation of the obligation to bargain
in good faith because:
. throughout the entire course of negotia-
tions the Respondent insisted on reserving to
itself absolute unilateral control over virtually
every significant term and condition of em-
ployment which it could change at will without
first discussing the matter with the Union. The
control extended to such matters as wages,
promotions, demotions, merit increases, trans-
fers, the determination as to when the rates of
a higher position should be paid to an em-
ployee receiving such a transfer, and the
modification and amendment of the shop rules
covering almost every working condition.
Here, also, Respondent's actions truly in total ef-
fect spell "desire not to reach an agreement with
the union" (N.L.R.B. v. Reed & Prince Mfg. Co.,
205 F.2d 131, 134 (C.A. 1), cert. denied 346 U.S.
877). See also: United Steelworkers of America,
AFL-CIO [Roanoke Iron & Bridge Works, Inc.] v.
N.L.R.B., 390 F.2d 846 (C.A.D.C.); United Steel-
workers of America, AFL-CIO [H. K. Porter Com-
KING RADIO CORPORATION. INC. 1071
pany, Inc.] v. N.L.R.B., 363 F.2d 272 (C.A.D.C.),
cert . denied 385 U.S. 851; N.L.R.B. v. Figzgerald
Mills Corporation, _313 F.2d 260, 268 (C.A. 2),
cert . denied 375 U.S. 834; Singer Mfg. Co. v.
N.L.R.B., 119 F.2d 131, 134-139 (C.A. 7), cert.
denied 313 U.S. 595; Continental Oil Co. v.
N.L.R.B., 113 F.2d 473, 481 (C.A. 10), modified
and remanded 313 U.S. 212; General Electric Com-
pany, 150 NLRB 192; Tower Hosiery Mills, Inc., 81
NLRB 658, 660-662, enfd. 180 F.2d 701 (C.A. 4),
cert. denied 340 U.S. 811.
Applying these principles to this case, close study
of the protracted course of negotiation sessions
here and the positions and actions taken by the
parties, viewed against the backdrop of surrounding
events, persuades me that General Counsel has
sustained his burden of proof establishing through a
fair preponderance of the substantial credible
evidence and I accordingly find that, since
December 1966 and continuing to date, Respon-
dent has engaged in surface bargaining , without
real intention of arriving at agreement , and has
failed to bargain in good faith with the Union, in
violation of Section 8(a)(5) and (1) of the Act.
D. The Strike Commencing March 27 and Its
Sequelae
1. Strike cause : Economics or unfair labor
practices?
It is alleged in the complaint that in consequence
of (1) Respondent 's unfair labor practices herein
and (2 ) Respondent 's failure to comply with the
Board 's orders in King I and King II, Respondent's
bargaining unit employees went and have remained
out on strike since March 27 and/or that their
strike has been prolonged thereby. Disputing this
allegation, Respondent contends that the strike was
and has remained since its inception purely for
economic reasons. Resolution of the issue is of im-
portance , since the jobs of as many as 250 striking
employees may hinge upon whether the strike was
an "unfair labor practice strike " or an " economic
strike"; for, under established law, "unfair labor
practice strikers " are not subject to valid discharge
for striking for that reason and are entitled to non-
prejudicial reinstatement upon proper application;
whereas "economic strikers" are subject to
discharge and are not entitled to reinstatement if
they have in fact been permanently replaced prior
to requesting reinstatement . Mastro Plastics Corp. v.
N.L.R.B., 350 U.S. 270, 278; Serv-Air , Inc. v.
N.L.R.B., 401 F.2d 363 (C.A. 10); N.L.R.B. v.
Park Edge Sheridan Meats, Inc., 323 F.2d 956,
958-959 (C.A. 2); N. L.R.B. v . Sunrise Lumber &
Trim Corp., 241 F.2d 620, 625 (C. A. 2), cert. de-
nied 355 U.S. 818; N.L.R.B. v . Wooster Division of
Borg-Warner Corporation , 236 F.2d 898 , 905-906,
907 (C.A. 6), affd. in part and reversed in part on
other grounds 356 U.S. 342 ; cf. N.L.R.B. v. Fleet-
wood Trailer Co., Inc., 389 U.S. 375 . In brief, then,
in this aspect of the case the issues are, why did the
unit employees go on strike and continue on strike
since March 27?
I he chronologies (Tables I and II, see Appen-
dixes B and C) and graphic presentation_of the jux-
taposition of bargaining sessions vis-a-vis unfair
labor practices (Table VI, see Appendix G) sup-
plied above will be helpful in visualizing the rela-
tionship of events involved in resolution of the is-
sues of why the employees went and have remained
on strike. Thus, it will be observed that the em-
ployees' strike meeting and vote overwhelmingly
(129-9) authorizing strike action occurred on
February 16. It will be further observed that the
employees' strike was preceded by a long string of
provocative unfair labor practices on Respondent's
part , as found by the Board in King I and King II.
The most recent of those unfair labor practices,
shortly preceding the strike vote, was Respondent's
discharge and disciplining of a number of super-
visors for testifying or willingness to testify before
the Board in King I in obedience to Federal sub-
penas procured by General Counsel compelling
such testimony. A scant 3 days before the strike
vote, Respondent 's counsel-negotiator, Haynes,
petitioned the Board to decertify the duly elected
Board-certified union as the employees ' bargaining
representative.
The Union's announcement of the February 16
strike meeting indicates in the clearest of language
why the employees were meeting and what they
would be meeting upon ; i.e., whether to authorize a
strike because of Respondent 's continuing , intracta-
ble course of unfair labor practices. That notice
(G.C. Exh. 17-17) states:
No progress has been made since our last
correspondence with you concerning the status
of bargaining.
It is becoming more apparent each day that
the Company has no intentions of assuming a
responsible role in its relationship with the
Union. We cite as evidence of their irresponsi-
ble action the following:
(1) Refusal to meet and bargain with the
Union from June 30, 1966 to October 25,
1966.
(2) The dismissal of employees for union
activity and without just cause.
(3) The arbitrary establishment of dis-
criminatory "No Talking" rule and other work
rules with which they harass and abuse em-
ployees.
(4) Their unilateral action in placing into
effect wage increases in an effort to undermine
the Union.
(5) Their defiance of the National Labor
Relations Act and all else that is right , fair and
reasonable in the treatment of employees.
(6) Their continual refusal to bargain in
good faith with the Union.
(7) In spite of the supported charges as
determined by the National Labor Relations
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board, they continue to commit unfair labor
practices and follow the same stalling tactics
that have marked their existence.
All efforts to peacefully resolve the issues
have failed. If you have signed a membership
card in the Union you are now being asked to
make some basic decisions that have con-
fronted Labor over the years. We either submit
to industrial enslavement with a future tied to
the whim of an unfair and arbitrary boss ... or
strike in the honorable tradition that has
earned respect and permitted workers to walk
with dignity in an industrial society that they
have helped to build.
A MLEJ ING for the purpose of reporting on
the status of bargaining and talking a strike'
vote has been scheduled for 7:30 P.M.,
FEBRUARY 16, 1967, at the AMERICAN LE-
GION BUILDING, OLATHE, KANSAS. This
is one block South of the Carpenters Hall.
If it is your desire that we employ our last
resort weapon of a strike, we will immediately
request the CWA International Executive
Board for approval and to establish a date.
Credited testimony of General Counsel's wit-
nesses further persuasively establishes that the mat-
ters set forth in the above notice were discussed57
and voted upon at that meeting, and a strike
authorized by the overwhelming mandate (129-9)
of unit employees present (138). Thus, Local Pre-
sident Virginia Jamison (a final assembler at
Respondent's Silver Crown plant), who described
the mounting harassment of employees at the plant
by Respondent which "intensified as time went on
... until we went on strike March 27, 1967," and
who conducted the February 16 strike meeting,
testified that an open discussion was held there
concerning not only the status of the bargaining
negotiations but also of "existing conditions inside
the plant," and that:
We talked about the bargaining and we felt
as of that date the company was not bargaining
in good faith and really was not trying to reach
a contract with us. . . . The employees told me
at that time they wanted to take a strike vote.
They felt they were working under, that the
harassment had become so great they were
having to take tranquillizers, having to see
their doctors and they were going to be forced
to quit if some of this harassment could not be
resolved. . . . It was said so many times . . . if
something isn't done quickly they are going to
quit, "I'm being harassed, I cannot stand my
job pressure." . . . Some said about talking,
that was most of it, and about being watched,
about people constantly looking down their
necks....
At this meeting, according to Mrs. Jamison, the
subject of Respondent's plant harassments alone
was discussed "for at least an hour," with em-
ployees airing "complaints about the existing condi-
tions.... the harassments ... the no-talking rule,
the continuous harassment of being watched, the
names being written down, little threats like you are
on report, you are going to go to the office, this
type of thing. . . . They felt it had reached the
degree they were going to have to quit their jobs. "'I
These, then, were the issues which were
presented to the employees for their strike vote and
which they discussed and upon which they voted.
How, then, in view of their ensuing overwhelming
strike vote (followed in turn by the request for In-
ternational Union strike backing on those very
grounds; G.C. Exh. 20), can it be said that the
strike which they thereby authorized was not-at
least in part-an unfair labor practice strike?
It was clearly understood, as explained to and
voted on by the employees at the February 16
meeting, that strike authorization would be held in
abeyance pending further attempts by the Union to
resolve existing problems with Respondent am-
icably. The union officials pursued this course, as
demonstrated not only by their continuing efforts to
negotiate with respondent, but also oy their notice
to employees (undated; G.C. Exh. 17-31) cap-
tioned:
WAIT!
DON'T GO YET
THERE HAS BEEN A CHANGE
OF PLANS FOR FRIDAY. MARCH 24. 1967
in view of a "last -ditch" negotiating attempt ar-
ranged for March 24 (Friday). For this forbearance
and attempt to resolve the existing problems am-
icably, the Union and its officials are to be com-
mended, not censured or its members penalized. I
reject Respondent 's contention that because the
Union was willing to continue to attempt to solve
the existing problems through negotiation it thereby
in effect waived or abandoned the right to strike for
unfair labor practices and stamped the ensuing
strike as based solely upon " economics " rather
than " unfair labor practices."
After the abortive negotiation session of March
24, union officials and local committee members,
meeting at Local President Virginia Jamison's
home , after making a thorough estimate of the
situation including the continuation of the unfair
labor practices , determined no longer to withhold
implementation of the employees ' strike authoriza-
tion . As testified by Local President Jamison, after
the local bargaining committeewomen reiterated
that Respondent was engaged in "nothing but
stalling tactics ... and that they would never bar-
" Indeed, the aforequoted union handbill (G C Exh 17-17) was utilized
as the notes or agenda for the discussion
5tl Respondent 's extensive prestrike harassments and the stepup thereof,
as well as the reason for the strike being Respondent's unfair labor prac-
tices, were further corroborated by credited testimony of General Counsel
witnesses Irene Guillory , Bettie Stauffer, Frances Roberts , Opal Kasper,
and Maxine Graves-all highly credible witnesses whose sincerity was ap-
parent from their testimonial demeanor
KING RADIO CORPORATION, INC. 1073
gain in good faith," Mrs. Jamison stated that she
"could not go back to them [i.e., unit employees]
and ask them one more time to stay in there and
work under the conditions they were working under
... the people were at the point where if I asked
them to stay in there one more day and work, they
were going to quit by the score." Accordingly, In-
ternational Union backing for the strike was en-
listed and obtained upon the basis of a description
of the situation (G.C. Exh. 20), and the strike was
called. The strike notice (G.C. Exh. 17-32) states:
ON STRIKE !
KING RADIO UNFAIR
C. W. A. LOCAL 647
CWA ON STRIKE
Against
KING RADIO
UNFAIR LABOR
PRACTICES
WE FINALLY HAD
TO DO IT!
On March 27th at 6:30 A.M. members of the
Communications Workers of America,
AFL-CIO who are employed by King Radio
Corporation in Olathe, Kansas went on strike.
This strike is a result of numerous unfair
labor practices committed by the Company
and to which the National Labor Relations
Board has issued complaints against the Com-
pany. In spite of the complaints the company
continues to refuse to bargain in good faith and
continues to discharge employees for union ac-
tivity. The union sought the services of the
Federal Mediation and Conciliation Service to
help resolve differences at the bargaining table
while the company refused to meet with that
Federal Agency present.
On February 1st the company unilaterally
placed in effect a 10-cent across the board in-
crease and now retuses to negotiate further on
wages. Members of the union voted by an
overwhelming majority to strike. On
knowledge of the union's strike vote the com-
pany immediately sent letters seeking the pro-
tection of the police and sheriff's offices and
placing all correspondence on the company
bulletin board to influence employees to cross
the picket lines thereby attaching to them-
selves the stigma of that action.
In the plant the rule of the "Iron Fist and
Closed Mouth" prevailed as the workers were
subjected to ever increasing pressures. The
flood of human sentiment over these and other
issues has resulted in these problems spilling
into the streets. We have no illusions about the
sacrifices this decision entails. We are
prepared to remain on the picket lines here
and elsewhere until we realize the social and
economic justice we seek.
We seek the understanding of the public and
the tradition of good trade unionism, the sup-
port of our brother and sister unionists. By
respecting our picket lines you respect all that
is respectable and show despise for that which
is despicable.
However, notwithstanding the foregoing and
Respondent's continued program of unfair labor
practices, Respondent contends that the strike in its
inception and continuation was and has remained
solely an "economic strike" whereby perhaps as
many as 250 employees (i.e., all those not
replaced) have lost their jobs and their right to
reinstatement. As further support for this conten-
tion, Respondent urges that at the abortive June
negotiations Trial Examiner Ladwig's Decisions in
King I and King II were "reviewed" and in effect at-
tempted to be erased. Even assuming that such
matters, involving the public interest in pending of-
ficial Federal governmental proceedings, could be
negotiated away, such a cast of the facts does
violence to what actually occurred, as is evident
from documentation as well as credited testimony
of General Counsel witness Lovett and Respondent
witness Pollock. The Union's proposed strike ter-
mination agreement (G.C. Exh. 16, page dated
June 19, 1967, attached to Union's letter dated
June 17, 1967) expressly states:
6. The Company will immediately comply, in
every respect, with the order of N.L.R.B. Trial
Examiner, Marion C. Ladwig, dated at
Washington, D.C. on May 1, 1967.11
In this connection it is further noted that the union
representatives merely indicated that if agreement
could be reached on the outstanding problems-
which, of course, included the unfair labor prac-
tices and the continuation of some of them-the
conditions would then exist for return of the em-
ployees to work; however, no agreement was
5" This position of the Union was not an innovative afterthought on June
17-19 For example, on top of its consistent like position at all times prior
thereto , the Union had written to Haynes on May 24 (G C Exh 17-49)
that
You are specifically advised that the union is protesting by its
present strike action the unfair labor practices found by the trial ex-
aminer in Cases 17-CA-3007 tie , King 1] and 17-CA-3123 [i e ,
King 11]
If, as you say in your letter [of May 20, 1967], these may be easily
and readily resolved , you are invited to contact the National Labor
Relations Board for formal settlement of these cases Your failure to
do so is further evidence of your continuing violations of the National
Labor Relations Act
Counsel have advised the Trial Examiner in the instant case that com-
pliance with the Board's orders in King I and King II is being resisted by
Respondent in appeals or enforcement proceedings presently pending in
the United States Court of Appeals for the Tenth Circuit It is evident that
such appeals or enforcement proceedings do not justify noncompliance
with, or operate as a stay of , Board orders , or continuation of unfair labor
practices A party-whether employer or union-who chooses not to
comply, but to persist in conduct which has been found illegal, in the hope
that a decision will be reversed or denied enforcement on appeal, obviously
takes the risk that his hope may be unfulfilled Respondent conceded at the
hearing here that an employer under Board order to bargain does not have
the legal right to postpone that obligation until a court of appeals affirms
the Board order
354-126 O-LT - 73 - pt 1 - 69
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reached .6' Furthermore, the discussion in any event
was limited to unfair labor practices found by Trial
Examiner Ladwig, not those found in the instant
case.
The overwhelming preponderance of substantial
credible evidence upon the record as a whole
establishes, and I accordingly find, that the strike of
Respondent's bargaining unit employees which oc-
curred on and has continued since March 27, 1967,
was in itc intention and has at all times since then
remained at least in substantial part a strike occa-
sioned and prolonged by Respondent's unfair labor
practices and by each of them: (1) alleged and
found herein; (2) alleged and found in King I; (3)
alleged and found in King 11.61
The overwhelming preponderance of the substan-
tial credible evidence upon the record as a whole
further establishes and I accordingly further find
that, independently of and in addition to the
foregoing, the strike of Respondent's bargaining
unit employees which occurred on and has con-
tinued since March 27, 1967, by reason of Respon-
dent's unfair labor practices prior thereto (as found
supra), was also prolonged in part by Respondent's
failure to comply fully with the Board's orders in
King I and King 11.11 63 64
B0 It is evident , as indicated infra, in i, 2, in another connection , that for
one reason or another Respondent was unwilling in any event to agree to
remedy some of its unfair labor practices
si The fact that the strike may also in part have been caused or prolonged
for economic reasons is of no moment here, since " if an unfair labor prac-
tice had anything to do with causing the strike , it was an unfair labor prac-
tice strike " General Drivers and Helpers Union, Local 662, Teamsters [ Rue
Lake Creamery Co]v NLRB, 302 F 2d 908, 911 (CA DC), cert de-
nied 371 U S 827 See also N L R B v Fitzgerald Mills Corporation, 313
F 2d 260, 269 (C A 2), cert denied 375 U S 834, Northern Virginia Steel
Corporation v N L R B, 300 F 2d 168 (C A 4), Philip Carey Mfg Co v
N L R B , 331 F 2d 720, 729 (C A 6), cert denied 379 U S 888, San An-
tonio Machine & Supply Corp , 147 NLRB 1112, 1113, fn 1, enfd 363 F 2d
633 (C A 5) "Having violated the Act, the Respondent cannot choose the
one of several causes of the strike that is most favorable to its position "
Celebrezze , J , in N L R B v Louisville Chair Company , Inc , 385 F 2d 922,
928-929 (CA 6)
Respondent conceded at the hearing that even if employees strike for
economic reasons and then prolong the strike because of unfair labor prac-
tices the strikers become unfair labor practice strikers In view of findings
here made , it is unessential to base any conclusions upon this concession,
which accords with the law General Drivers and Helpers Union, Local 662
[Rice Lake Creamery Co ] v N L R B, supra , N L R B v Crosby Chemi-
cals, Inc, 188 F 2d 91 (C A 5), N L R B v Remington Rand, inc , 130
F2d919,928(CA 2)
83 Thus, for example-and merely by way of a single example- it is un
disputed ( and in part conceded by Respondent Vice President Harris) that
notwithstanding the Board order directing Respondent to expunge from it
files the adverse personnel actions found therein to have been unlawful,
Respondent 's counsel-negotiator, Haynes, declared that they had not been
and would not be removed from the files, but merely ( i e , if overall agree-
ment was otherwise reached with the Union ) " not used " In the words
of Respondent Personnel Director Johnson , " it was stated by Mr Haynes
that they would remain in the file but they would not be used in any fu-
ture-," at which point Johnson abruptly halted himself and hurriedly
added , " I am not sure, I don't know " It is obvious that this is not merely a
"technical " but a refractory noncompliance with the Board's order, it be-
ing, for example , a matter of common knowledge that such personnel
records are in the usual course utilized for background and reference pur-
poses in connection with other employment and for investigative purposes
In view of the foregoing and other noncompliance with the Board's or-
ders in King I and King Ii ( as well as Respondent 's unfair labor practices
found herein ), and findings herein that the March 27 strike and its con-
tinuation have been at least in substantial part based upon Respondent's
unfair labor practices , it is unnecessary here to consider Respondent's con-
tention that it has offered to employees found by the Board to have been
unlawfully discharged full reinstatement and backpay as required (as al-
legedly evidenced by its letters in May, subsequent to the stnke -attached
to its answer ) Discriminatory dischargees who have joined an unfair labor
practice strike after their discharge need not, upon receipt of an offer of
reinstatement , abandon such strike and return to work in order to retain
their hold on their jobs D'Armigene , Inc , 148 NLRB 2, 15-16, enfd 353
F 2d 406 (C A 2) Whether the offers of reinstatement were proper and
operated to toll the affected employees ' entitlement to backpay thereafter
is another question again , to be determined not here but in a compliance
proceeding Id Furthermore , even assuming arguendo that Respondent
complied with the Board 's reinstatement order to the extent it involved un-
lawfully discharged supervisors by merely offering such supervisors rein-
statement under existing conditions ( as to which a question may arise, to
the degree that some of Respondent's unremedied unfair labor practices
may have placed such returning supervisors under employer-imposed
obligation to carry out on its behalf activities condemned as illegal by the
Board ), Respondent in any event failed to comply with remaining substan-
tial portions of the Board's orders , so that Respondent 's action in offering
reinstatement to the supervisors did not operate to alter the essential
character of the strike ( or its prolongation ) as an unfair labor practices
strike As indicated above, the questions of the extent of backpay and of
the validity of reinstatement offers to the supervisors are matters to be
determined in a compliance proceeding
' At the conclusion of the entire case, General Counsel moved to amend
his bill of particulars so as to include therein an allegation that Respondent
failed to comply not merely with the matters expressly set forth in the bill of
particulars , but also with all provisions of each of the Board's orders in
King I and King 11 The motion was opposed by Respondent Decision was
reserved In view of the contents of the original and amended complaint,
Federal Trial Examiner Schneider 's order requiring the bill of particulars,
and the facts and issues actually litigated at the hearing , General Counsel's
motion is hereby denied This ruling is not to be deemed as in any way re-
lieving Respondent of the necessity for fully complying with the Board's or-
ders in King 1 and King 11
°' Respondent has moved to dismiss the allegation upon which the
foregoing finding is based The complaint alleges ( par 8 ) that the strike
was in part based upon or prolonged by Respondent 's failure to comply
with Board orders in King I and King 11 directing it to cease and desist from
the unfair labor practices there found, and to take the affirmative remedial
measures there directed , by the Board Respondent has moved to dismiss
this allegation , upon the ground that it is now judicially appealing from or
resisting enforcement of those Board orders, which involve matters now
outside of the 6-month statutory limitations period
While it is true that under the existing statutory scheme enforcement of
unfulfilled orders of the Board is entrusted to the Federal appellate judicial
system (Act, Sec 10(e) and ( f)), Respondent 's motion misconceives the
applicability of this provision , as well as of the 6-month statutory limita-
tions period, by misconstruing the nature of the allegation of the complaint
The allegation in question does not state that Respondent 's failure to
comply with the Board 's previous orders constitutes a fresh unfair labor
practice here, it may be construed as alleging that the unfair labor practices
underlying the Board's decisions in the previous cases, as found by the
Board in those cases, also constituted part of the reason for the employees'
strike commencing March 27 If in fact and in law Respondent 's actions as
found by the Board, in King I and King II constituted unfair labor practices,
then Respondent's employees had the right to engage in an "unfair labor
practices strike" upon the basis thereof, without necessity for postponing
such strike action until hearing the final judicial voice on appeal -just as
they also could have prior to the Board 's decision . It is the nature of the
basic facts= i e , the presence or absence of unfair labor practices-which
determines whether or not a strike is an unfair labor practices strike, not
whether a proceeding is pending undecided or on appeal Nor does a
proceeding or appeal such as in King I or King 11 operate as a stay of a strike
(or of countervailing employer action ) Actions taken by the parties are of
course subject to the usual decisional risk (To be distinguished is Green-
ville Cotton Oil Company, 92 NLRB 1033, enfd 197 F 2d 326 (C A 5),
criticized in N L R B v Brown & Root , Inc , 203 F 2d 139, 145-146 (C A
8) and in Philip Carey Mfg Co v NLRB , 331 F 2d 720, 732 (C A 6),
cert denied 379 U S 888), wherein, unlike here, determination of whether
the conduct complained of was an unfair labor practice was required to be
Continued on next page
KING RADIO CORPORATION, INC.
2. Strike Sequelae: Threats of discharge,
permanent replacement, and forfeiture of
economically valuable employment accruals
The complaint alleges, as still another unfair
labor practice, that on or about March 29 Respon-
dent threatened its employees who were on strike
because of Respondent's unfair labor practices with
discharge or permanent replacement and loss of
economic benefits unless they returned to work by
April 3, 1967.65
Since Respondent wrote such a letter (G.C. Exh.
17-35) to its striking employees, resolution of the
issue tendered by this allegation turns, as Respon-
dent's counsel stated at the hearing, "on the deter-
mination of whether or not the employees were en-
gaged in an unfair labor practice strike" (tr. pp.
1246-47).
In view of findings hereinabove made that the
strike was an unfair labor practice strike and that
Respondent's unfair labor practices continued, it
follows, and I therefore further find, that Respon-
dent's March 29 communication to its striking em-
ployees threatened them with discharge or per-
manent replacement and loss of economic benefits
forming a part of such employment, unless they
returned to work by April 3, 1967, and that this
was in further violation of Section 8(a)(1) of the
Act. As stated above, unfair labor practice strikers
cannot be discharged or permanently replaced
while unfair labor practices, as here, continue un-
remedied. Mastro Plastics Corp. v. N.L.R.B., 350
U.S. 270; cf. D'Armigene, Inc., 148 NLRB 2, enfd.
as modified 353 F.2d 406 (C.A. 2). Employer
threat to do that which he cannot under the Act
lawfully do to employees constitutes independent
violation of Section 8(a)(1). Rice Lake Creamery
Company, 131 NLRB 1270, 1301, enfd. 302 F.2d
908 (C.A.D.C.), cert. denied 371 U.S. 827; Reed &
Prince Manufacturing Company, 96 NLRB 850,
860, enfd. 205 F.2d 131 (C.A. 1), cert. denied 346
U.S. 887.
Upon the foregoing findings of fact and the entire
record, I state the following:
CONCLUSIONS OF LAW
1. At all material times, Respondent King Radio
"Continued
made in the proceeding itself Thus, for example , in Trailmobile Division,
Pullman Incorporated, 168 NLRB 230, a finding of an unfair labor practice
was predicated upon an employer's refusal to bargain with a union as or-
dered by the Board in a prior case Accordingly, the circumstances of the
instant case present no problem in the area of the 10 ( b) time limitation of
the Act, in view of the nature of the allegation of the complaint here, as
described above, and findings here made Broxn & Root, Inc , 99 NLRB
1031, enfd as modified 203 F 2d 139, 145-146 (C A 8), with which cf
The Davis Fire Brick Company, 131 NLRB 393
It is additionally to be observed that, in any event, although failure to
comply with an order to cease and desist from, or otherwise remedy, unfair
labor practice found in a previous Board case may not itself comprise a
&' It is not here claimed that Respondent 's March 29 letter to employees
constituted a discharge or led employees reasonably to believe they were
1075
Corporation, Inc., has been and is an employer en-
gaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. At all material times , Communications Wor-
kers of America, AFL-CIO, Charging Party herein,
has been and is a labor organization within the
meaning of Section 2(5) of the Act.
3. Assertion of jurisdiction in this proceeding is
proper.
4. At all material times, the following unit of
Respondent 's employees has been and is ap-
propriate for collective -bargaining purposes within
the meaning of Section 9(b) of the Act:
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 cleri-
cals, but excluding the office clerical em-
ployees , accounting department employees,
research and development employees, and
professional employees , guards , and super-
visors within the meaning of the Act.
5. At all times since June 30 , 1966, Communica-
tions Workers of America , AFL-CIO, has been and
is the exclusive representative of all employees in
the above unit of Respondent 's employees , for the
purposes of collective bargaining within the mean-
ing of Section 9(a) of the Act.
By its acts and omissions , and each of them,
set forth and found in section II, C, 2, 3, and 4,
supra , to have constituted unfair labor practices,
Respondent has failed and refused , and is failing
and refusing , in violation of Section 8(a)(5) of the
Act, to bargain collectively in good faith with the
duly designated , selected, and National Labor Rela-
tions Board-certified representative of its em-
ployees in the foregoing appropriate collective-bar-
gaining unit.
7. By its acts and omissions , and each of them,
set forth and found in section II, C, 1, 2, 3, 4, and
II, D, 2, supra , to have constituted unfair labor
practices , Respondent has interfered with,
restrained, and coerced, and is interfering with,
restraining , and coercing , employees in the exercise
of rights guaranteed in Section 7, in violation of
Section 8 ( a)(1), of the Act.
further unfair labor practice, it does not follow that a repetition or con-
tinuation of the acts constituting an unfair labor practice may not properly
form the basis of a further unfair labor practice case Where , as here, such
acts are allegedly repeated or continued within the statutorily limited 6-
month period antedating a new charge (Act, Sec 10(b)), they may
properly form the predicate of a new case Cf Quaker Tool & Die, Inc , 169
NLRB 1148
In view of these circumstances , it would appear to be unessential to pass
upon Respondent 's motion to dismiss the indicated portion of par 8 of the
complaint , as found here, the strike was, in its inception and continuance,
an unfair labor practices strike
being discharged Cf N L R B v Hilton Mobil Homes, 387 F 2d 7 (C A 8),
N L R B v Comfort, Inc, 365 F 2d 867, 875 (C A 8)
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8a. On March 27, 1967, Respondent's em-
ployees in the foregoing appropriate collective-bar-
gaining unit engaged in and have since continued to
engage in a concerted work stoppage or strike.
b. Said concerted work stoppage or strike was in
its inception due to and caused at least in substan-
tial and controlling part by Respondent's unfair
labor practices, and each of them, found herein,
which occurred on or prior to, or continuing on,
March 27, 1967.
c. Said concerted work stoppage or strike was in
its inception further due to and further caused in
substantial part by Respondent's unfair labor prac-
tices, and each of them, found by the National
Labor Relations Board in Cases 17-CA-3007 (166
NLRB 649; King I) and 17-CA-3123 (166 NLRB
180; King II).
d. Said concerted work stoppage or strike was
prolonged, and has to date continued to be pro-
longed, at least in substantial and controlling part,
by Respondent's unfair labor practices, and each of
them, found herein.
e. Said concerted work stoppage or strike was
prolonged, and has to date continued to be pro-
longed, in substantial part, by Respondent's unfair
labor practices, and each of them, found by the Na-
tional Labor Relations Board in Cases 17-CA-3007
(166 NLRB 649; King I) and 17-CA-3123 (166
NLRB 180; King II).
f. Said concerted work stoppage or strike was in
its inception, has at all times since its inception
continued to be, and is an "unfair labor practices
strike" constituting protected concerted activity
under the Act.
9a. On or about and continuing since March 29,
1967, Respondent threatened employees in the
foregoing appropriate bargaining unit who had en-
gaged in and were continuing to engage in the
aforesaid protected concerted work stoppage or
strike since March 27, 1967, by reason of the
Respondent's aforementioned unfair labor prac-
tices, with discharge or permanent replacement and
loss of economically valuable benefits accruing to
their employment with Respondent, unless they
returned to work for Respondent by April 3, 1967.
b. By its said action, Respondent has interfered
with, restrained, and coerced, and is interfering
with, restraining , and coercing, employees in the
exercise of rights guaranteed in Section 7, in viola-
tion of Section 8(a)(1), of the Act.
10. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
I The Charging Party 's formal offer of proof has been incorporated into
the record as its Exh I for identification
" General Counsel takes the position that the Charging Party's applica-
tions are consistent with the complaint as drawn and that the proof
proffered by the Charging Party would thereunder be admissible, not
presenting a new or foreign issue, but only more evidence of the same
general nature as that adduced by General Counsel in his direct case
Presumably , in General Counsel 's view, there would be required no more
(7) of the Act, and are continuing to have an ad-
verse impact and effect on commerce.
THE REMEDY
We move now to the matter of remedy
Charging Party's Application and Offer of Proof
At the conclusion of General Counsel's case, the
Charging Party (Union) made an application and
offer of proof, amplified upon conclusion of the en-
tire case, to establish that the employees' con-
certed work stoppage on March 27 was in legal
contemplation a "constructive discharge " in con-
sequence of Respondent 's intolerable harassments
and other persisting flagrant unfair labor practices.
In its offer of proof the Union proposes to establish
this through testimony of a large number of em-
ployee witnesses who, it is indicated, would testify
at length and in detail with regard to intolerable
harassments and indignities to which they have
been subjected by Respondent since they have
sought to exercise their legal rights under the Act,
compelling them to cease working because work in
Respondent's plants was no longer reasonably feasi-
ble. From this, if established, it is proposed to be in-
ferred that Respondent's motive and objective was
to bring about this very result, so as to rid itself of
union adherents, thus escaping the statutory collec-
tive-bargaining obligation flowing from the Board's
certification of the Union. Alternatively, even
without a finding of "constructive discharge," the
Union makes this same offer of proof in order to
support a backpay remedy based upon Respon-
dent's continuing unfair labor practices in this third
unfair labor practice case against Respondent since
the Union has been certified.
General counsel's position with regard to the
foregoing is that although he has not sought these
remedies herein simply because he has no basis for
belief that they are available under announced
Board policy, he is nevertheless not opposed to
such or other appropriate relief;67 indeed, General
Counsel sounds a fervent plea for design of an ap-
propriate new remedy here in order to prevent seri-
ous miscarriage of justice through unredressed per-
sistent flouting of the statute and the Board's or-
ders.
Respondent strongly opposes the Union's appli-
cation and offer of proof upon a variety of grounds.
These include General Counsel's failure to plead
violation of Section 8(a)(3) or "constructive
than consideration of a larger quantum of proof of the same type as is al-
ready in the record, to support a mere prayer for an additional remedy, it
not being the practice in any event , in proceedings of this type , ordinarily
to include a prayer for relief in the complaint Cf, e g , N L R B v Font
Milling Company, 360 U S 301, 306-309, Nationa l Licorice Company v
NLRB , 309 U S 350 , 369, N L R B v Presser Scientific, Inc , 387 F 2d
143 (CA 4)
KING RADIO CORPORATION, INC. 1077
discharge";68 under General Counsel's position that
the employees in question are "strikers" they can-
not at the same time be regarded as dischargees or
"quits"; no applications for reinstatement have
been refused by Respondent; and it was the Union
which "cause[d] employees to suffer a loss of pay"
since it failed to bargain concerning the alleged un-
fair labor practices and how they might be
remedied by Respondent so that the employees
could return to work (or, if not, suffer a change of
status to that of "economic strikers"). The latter
two contentions have to an extent already been
disposed of by findings and conclusions already
made; it may be additionally observed in this regard
that the title of unfair labor practice strikers to
their jobs is not clouded by failure to apply for rein-
statement in the face of continuing unfair labor
practices (D'Armigene, Inc., 148 NLRB 2, 15-16,
enfd. 353 F.2d 406 (C.A. 2)); there is no substan-
tial basis for concluding that continued negotiation,
even if there was a duty to engage in such, would or
could have erased the unfair labor practices in
which Respondent engaged and is continuing to en-
gage; and, finally, even in the context of such
discussions as occurred, in June, Respondent in-
dicated quite clearly that it was unprepared to
remedy its unfair labor practices through com-
pliance with the Board's orders, the only method by
which compliance could be accomplished, since
under the statutory scheme a party is not his own
judge as to the method, manner, or extent of com-
pliance with a Board order or of remedying his own
unfair labor practice.
Considering the basic question tendered, how-
ever, by the Charging Party's offer of proof, no
Board decisional precedent has been cited to sup-
port the application. Even were the instant case to
be considered by me to be one so flagrant as to
merit treating some 250 employees as constructive
dischargees, so as to entitle them to backpay since
March 27, 1967, the absence of any decisional
precedent to that effect in the long annals of Board
cases, including aggravated unfair labor practices,
would alone cause me to approach such a far-
reaching innovation extremely haltingly. All cir-
cumstances considered, I am persuaded that policy
change of such scope and magnitude should
originate from the Board if at all.s The Charging
Party's application to present the indicated proof is
therefore denied, and its offer of proof is ac-
cordingly rejected.
Rejection of this offer of proof, and denial of an
8(a)(1) backpay remedy here, does not, however,
mean that I consider the usual remedies routinely
allowed in cases involving initial or minor violations
of the Act to be sufficient here. General Counsel,
who has now successfully prosecuted three cases
against Respondent, properly pleads for an end.
And an end there should be. To do more than echo
requirements which Respondent has ignored would
in a sense be to confess remedial impotence by not
increasing sanctions to avoid further perpetuation
of repeated illegal conduct. Three Kings are
enough.70 A large number of employees, exercising
Federally guaranteed statutory rights, through the
reliable democratic processes of an officially con-
ducted secret election, by overwhelming vote
elected the Union as their bargaining representative
almost 2 years ago. Their legal right to bargain col-
lectively has nevertheless been thwarted, jobs have
been lost, and they have continued to be the ob-
jects of coercion, restraint , and harassment. A large
number have been on strike for over a year. These
circumstances command remedy . It seems fruitless
merely to issue a further order copying the last.
Remedy under these conditions should reflect that
this is the third case in a year. It should also take
cognizance of the nature of the three cases of inter-
current events, including the fact that one of the
previous cases involved the perhaps particularly
noxious violation of discharge for testifying or
willingness to testify under the legal compulsion of
Federal subpena.
In fashioning adequate remedy, it is appropriate
that an offender's past derelictions be considered.
We have repeatedly been so instructed. N.L.R.B. v.
Seven-Up Bottling Co., 344 U.S. 344, 348-349;
Truck Drivers & Helpers Local Union No. 728,
Teamsters v. N.L.R.B., 332 F.2d 693, 695, 697
(C.A. 5), cert. denied 379 U.S. 913; Local 138, In-
ternational Union of Operating Engineers v.
N.L.R.B., 321 F.2d 130, 138 (C.A. 2); N.L.R.B. v.
Springfield Building and Construction Trades Coun-
cil, 262 F 2d 494, 498-499 (C.A. 1), cited with ap-
proval in N.L.R.B. v. Ochoa Fertilizer Corp., 368
U.S. 318. See also Jaffe, The Judicial Enforcement
of Administrative Orders, 76 Harv. L. Rev. 865, 892
(1963 ). Perhaps the most recent judicial reminder
of the propriety of so doing- in a sense analogous
to reviewing a prior record in connection with
deciding the severity of a sentence-may be found
in N.L.R B. v. Tennessee Packers, Inc., 390 F.2d
782, 783-784 (C.A. 6). Sec. 10(c) of the Act em-
powers the Board to order violators "to cease and
" The original charge mentioned violation of Sec 8(a)(3), without,
however , using the term " constructive discharge" or similar expression
The amended charge did not mention Sec 8 ( a)(3), while containing the
usual generic language charging "other acts and conduct " in violation of
the Act To support its contention that an amended charge perhaps for all
purposes supplants and replaces an original charge, and that for this reason
alone the Charging Party's application and offer of proof must fail, Respon-
dent asks that official notice be taken of a provision or procedure to that
purported effect in a "field manual" issued by General Counsel to his sub-
ordinates Decision was reserved on Respondent 's application that General
Counsel's "field manual" thus be officially noticed Inasmuch as other
dispositions herein made render Respondent's request moot , the request is
dismissed
" Although perhaps not here called for, were Ito consider myself free on
this subject, I would not regard the circumstances herein, serious though
they are, to require such a remedy Cf, e g , Kinter Brothers, Inc , 167
NLRB 57, 58 In King I, the Board declined to accede to the Charging Par-
ty's request for a monetary remedy for losses and expenses incurred as a
result of Respondent 's unlawful refusal to bargain 166 NLRB 649, fn I
TO Cf Holmes, J , in Buck v Bell, 274 U S 200, 207
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
desist from such unfair labor practice, and to take
such affirmative action including reinstatement of
employees with or without back pay, as will effectu-
ate the policies of this Act." Test of this statutory
authority has drawn from our highest Court the
characterization that it "charges the Board with the
task of devising [effective] remedies." N.L.R.B. v.
Seven-Up Bottling Co., 344 U.S. 344, 346."
I shall, of course, pro forma recommend the usual
notice posting-this will be the third such notice,
none having as yet been posted-and the usual
cease-and-desist and affirmative provisions custo-
mary in violation cases of this type, and with which,
also, Respondent will now become thrice familiar.
Under all the circumstances of this case, however,
and in order to attempt more effectual remedy and
discouragement of still further evasion and flouting
of the Act and denial to employees of their statu-
torily guaranteed rights, I shall recommend certain
additional remedies which I believe the unusual
situation of this third successive case calls for. I
shall accordingly additionally recommend:
(1) That Respondent be ordered to abrogate and
disestablish in all respects the wage structure
system which it unilaterally established and placed
into effect for unit employees, as above described,
on and has maintained since February 1, 1967; ex-
cept (a) that all increased minimum wage rates,
whether statutory or otherwise, for all job classifi-
cations, therein or since then established or paid or
agreed to be paid, shall not be abrogated or
reduced or otherwise changed without bargaining
in good faith with the Union thereon, and (b) that
in all respects other than such 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 its said February 1,
1967, unilateral change shall forthwith be rein-
stituted and restored and shall not be changed
without bargaining in good faith with the Union
thereon.
(2) That Respondent be ordered to refrain from
hiring, employing, paying, or agreeing to pay any
employee, or any replacement for any striking em-
ployee herein, at pay or a rate or system of pay or
Ti Additional judicial adjurations to fashion effective remedies may be
found , for example , in Fibreboard Corp v N L R B , 379 U S 203,
215-217, N L R B v Erie Resistor Corp , 373 U S 221, 236, Virginia Elec-
tric & Power Co v N L R B , 319 U S 533, 539-540, and Phelps Dodge
Corp v N L R B , 313 U S 177, 188, 194, 198 Another recent judicial
prod in this direction may be found in United Steelv.orkers of America,
AFL-CIO [H K Porter Company , Inc J v N L R B 363 F 2d 272
(C A D C ), cert denied 385 U S 851
"The words of Senator Wagner ( s 1958, 79 Cong Rec 7571, 1935)
seem strangely prophetic here "The Government itself is held up to
ridicule when the elections which it supervises are rendered illusory by
failure to acknowledge their results And needless to say, such a contradic-
tory course generates perpetual discontent and strife " It was recently re-
ported that William F May, chief executive officer of American Can Com-
emolument other than that hereinabove in para-
graph (1) hereof described and ordered to be rein-
stituted.
(3) That Respondent be ordered to refrain from
placing into effect, or threatening so to do, or an-
nouncing any wage, wage rate progression, wage
structure system, or other change in any term or
condition of employment of employees in the bar-
gaining unit, without bargaining in good faith with
the Union thereon.
(4) That Respondent be ordered to bargain in
good faith with the Union concerning wages and all
other terms and conditions of employment of bar-
gaining unit employees, and to embody in a signed
agreement any understanding reached. Inasmuch as
this is the third unfair labor practice proceeding
against Respondent since the Board-conducted
election and the unfair labor practices have con-
tinued without surcease,72 and in view of the
foregoing requirement that Respondent's unlaw-
fully unilaterally established new wage structure
system of February 1, 1967, be abrogated (except
as above provided) and now be bargained in good
faith, it is deemed appropriate to remind the parties
that one of the mandatory subjects to be bargained
in good faith is the effective date of any wage and
wage structure system changes agreed upon. In
connection with arriving at such effective date, ap-
propriate effect should be given to the finding and
conclusions herein, as well as to the Board deter-
minations in King I and King II, and to the further
fact that the wage increases which Respondent uni-
laterally placed into effect were by Respondent it-
self made effective on February 1, 1967. In the
event that the parties are unable, within 30 days
after arriving at agreement upon other provisions of
such collective agreement to be negotiated under
the terms of this order, to stipulate as to said effec-
tive date, then and in that event upon application of
any of the parties (including General Counsel)
upon notice and an appropriate showing, further
findings and conclusions may be added herein at
the foot of this or any Board decision herein,
establishing the date when the parties would have
entered into or made such agreement effective but
for Respondent's unfair labor practices; and a
further order or orders may be made, directing ex-
ecution of any such otherwise fully bargained
pany, speaking as chairman of the industrial relations committee of the Na-
tional Association of Manufacturers , stated that "Despite occasional
breakdowns , the collective bargaining process has been an important sta-
bilizing influence in our industrial system, and we take this opportunity to
reaffirm the need to preserve rather than destroy it" and that "the old
philosophy of conflict in labor relations is being replaced by more con-
structive and responsible thinking " On the same occasion, James D
Secrest, executive vice president of the Electronic Industries Association,
is also reported to have stated that electronics manufacturers "like all
progressive manufacturers , accept the principle of collective bargaining
and the right of employees to choose their union representatives , if any,"
and that this policy is "no longer news because it is no longer controver-
sial "64 LRRM 238
KING RADIO CORPORATION, INC.
agreement as of said date, and for such other and
further relief as the circumstances may warrant; ju-
risdiction being expressly retained herein for such
purposes.73 Cf. United Steelworkers of America,
AFL-CIO [H. K. Porter Company, Inc.] v.
N.L.R.B., 389 F.2d 295, 299 (C.A.D.C.): "Indeed,
it is possible that in an appropriate case the Board
could simply order the company to grant a
checkoff"; Port Drum Company, 170 NLRB 555.
(5) That the period of 1 year following Respon-
dent's posting of the attached notice marked "Ap-
pendix" shall be regarded as the initial certification
year of the Union, and that the Board's certificate
to the Union shall be deemed amended and con-
formed accordingly. In King I, the Board declined
to adopt Trial Examiner Ladwig's recommendation
to this effect "in the absence of evidence that
Respondent's refusal to bargain continued after
September 21 [19661" (166 NLRB 649, fn. 1).
Since such evidence has now been supplied, under
the circumstances shown it appears appropriate to
include such a provision in the recommended
Order.
(6) That Respondent be required to reinstate the
unfair labor practice strikers upon proper applica-
tion , without prejudice to such wage rates and
seniority as they would have acquired but for the
unfair labor practice strike; for that purpose
discharging if necessary any replacement em-
ployees; and that in the event such reinstatement is
feasible but is not accomplished within 5 days after
such application, Respondent shall thereupon be
obligated for backpay to any such employee not so
reinstated; such backpay, together with interest, to
be computed in the manner set forth in F. W. Wool-
worth Company, 90 NLRB 289, and Isis Plumbing
& Heating Co., 138 NLRB 716. The recommended
Order will include a provision for a preferential hir-
ing list in the event there are insufficient jobs to
reinstate all striking employees, as in Butler
Knitting Mills, Inc., 127 NLRB 68. It will also in-
clude a provision that if any of said employees
should currently be serving in the Armed Forces of
the United States, Respondent shall be required to
notify him of his right to full reinstatement upon
application after discharge from the Armed Forces,
in accordance with the Selective Service Act and
the Universal Military Training and Service Act, as
amended.
(7) In view of the nature and extent of the unfair
labor practices committed in this third proceeding
growing out of the same basic set of circumstances,
and since the actions perpetrated bespeak an at-
" It is not considered that this provision writes a substantive provision of
the collective agreement for the parties, under the particular circumstances
here present As has been indicated, Respondent itself placed far-reaching
wage and wage structure changes into effect unilaterally on February 1,
1967, now over a year ago, erasure of those changes could create a hiatus
unless a properly negotiated substitute is established as of a proper effec-
tive date In the situation presented , failure to agree upon a proper effec-
tive date may be compared to a case where a party who denies that he has
concluded an agreement is found to have in fact concluded an agreement,
1079
titude to date of refractory hostility to compliance
with key provisions and policies going to the very
heart of the Act, I shall also recommend that
Respondent be ordered to cease and desist from in-
fringing in any other manner upon rights guaran-
teed to employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact
and conclusions of law and upon the entire record,
and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER
A. Respondent , King Radio Corporation , Inc., its
officers , agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Maintaining and enforcing , against em-
ployees for union organizational affiliation , activity,
support , or sympathy , a discriminatory absolute ban
upon talking while at work , and a discriminatory
warning notice rule and system in connection
therewith , without prejudice to the right to bargain
in good faith with the employees ' Union concerning
valid , nondiscriminatory workrules."
(b) Engaging in surface bargaining or other col-
lective bargaining not in good faith , without real in-
tention of reaching agreement with Comminica-
tions Workers of America , AFL-CIO, as duly
designated exclusive bargaining representative of its
employees in the following unit appropriate for bar-
gaining purposes:
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 cleri-
cals, but excluding the office clerical em-
ployees, accounting department employees,
research and development employees, and
professional employees , guards , and super-
visors within the meaning of the Act.
(c) Maintaining in effect for any employee in
said bargaining unit the wage structure system or
any portion or aspect thereof established by
Respondent on or since February 1, 1967, other
than all wage increases granted thereunder whether
pursuant to any minimum wage law amendment or
otherwise , unless bargained in good faith with said
Union.
(d) Hiring , employing , arranging , or offering to
hire or employ , or paying or agreeing to pay any
employee or replacement or substitute for any em-
ployee , in said bargaining unit , at a wage or wage
rate, wage rate progression , emolument or thing of
or to a case where a party insists upon an incorrect effective date for an
agreement Cf, e g , Howard Johnson Incorporated of Florida, dlb/a Howard
Johnson's Restaurant , TXD-551-63 (Case 26-CA-1556), complied with
without exceptions Perhaps it is not too much to hope that consequences
fraught with possibly undue economic hazard may be avoided by the
parties' stipulating in good faith as to the effective date of any agreement
reached, in a fair spirit of compromise See fn 72, supra
" See Board order in King I
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
value, or wage rate structure system, other than
that in existence in said bargaining unit immediate-
ly prior to that established unilaterally by Respon-
dent on February 1, 1967, without bargaining in
good faith thereon with said union, except for any
increases in minimum wage rates, whether statutory
or otherwise, established by Respondent on or since
February 1, 1967, for each and every job classifica-
tion.
(e) Unilaterally changing, threatening to change,
or announcing any change in wages (except as may
hereafter be required by the express provisions of
any minimum wage law or amendment or other
statute), wage rate progressions, wage structure
system, or any other term or condition of employ-
ment of said bargaining unit employees without
bargaining in good faith with said Union in regard
thereto.
(f) Unilaterally contracting out, or agreeing, ar-
ranging, or offering to contract out, work per-
formed by said bargaining unit employees, without
notice to and bargaining in good faith with said
Union in regard thereto.
(g) Failing or refusing to furnish information
pursuant to request of said Union, necessary or ap-
propriate for collective-bargaining purposes, in-
cluding information relative to any contracting out
by Respondent of work performed by said bargain-
ing unit employees.
(h) Threatening, warning, advising, or notifying
any employee engaged in an unfair labor practice
strike that said employee or any other such striking
employee will or may be discharged or permanently
replaced or deprived of any economic benefit ac-
cruing in connection with his employment (other
than wages while so striking, provided his employ-
ment has not unlawfully been actually or construc-
tively terminated or suspended by Respondent) un-
less said employee returns to Respondent's employ.
(i) In any other manner interfering with,
restraining , or coercing any employee in the exer-
cise of his right to self-organization; to form, join,
or assist any labor organization; to bargain collec-
tively through representatives of his own choosing;
to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protec-
tion; or to refrain from any and all such activities.
2. Take the following affirmative action necessa-
ry to effectuate the policies of the Act:
(a) 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 restored, and shall not be
changed without bargaining in good faith with the
Union thereon.
(b) 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 statutory
or otherwise, for all job classifications) as
hereinabove provided, which have been established
for said unit employees by Respondent at any time
since said unit employees have been represented
for collective bargaining by Communications Wor-
kers of America, AFL-CIO, unless said changes are
bargained in good faith with said Union.
(c)( 1) Upon request, bargain in good faith with
Communications Workers of America, AFL-CIO,
as the exclusive bargaining representative of
Respondent's employees in said bargaining unit and
embody in a signed contract any agreement
reached. For purposes of such bargaining, the
period of 1 year following posting by Respondent of
the attached notice marked "Appendix" shall be
deemed and considered to be the initial certifica-
tion year of Communications Workers of America,
AFL-CIO, and the Board certificate issued to said
Union shall be deemed to be amended and con-
formed accordingly.
(2) Included in the subjects with regard to which
Respondent shall bargain in good faith with said
Union shall be the effective date of any wage in-
crease and revised wage structure system agreed
upon. In connection with any retroactivity thereof,
good-faith consideration shall be given to the unfair
labor practices found herein and in NLRB Cases
17-CA-3007 (166 NLRB 619); TXD-237-67) and
17-CA-3123 (166 NLRB 180; TXD-248-67) to
have been committed by Respondent; and good-
faith consideration shall also be given to the fact
that the date on which Respondent itself instituted
such wage increases (although unilaterally) was
February 1, 1967. In the event the parties should be
unable, within 30 days following agreement upon
other provisions of such collective agreement
negotiated under the terms of this recommended
Order, to stipulate as to said effective date, any
party (including General Counsel) may upon notice
and appropriate showing apply herein for further
findings and conclusions to be added at the foot of
this or any Board decision herein, establishing the
date when the parties would have entered into such
otherwise fully bargained agreement but for
Respondent's unfair labor practices, and for a
further order or orders, directing execution of such
otherwise fully bargained agreement as of such
date, and for such other and further relief as the
circumstances may warrant. Jurisdiction is hereby
KING RADIO CORPORATION, INC. 1081
expressly retained herein for such purposes, in
order to provide an effective remedy in the situa-
tion presented, so as to prevent continued evasion
and flouting of the provisions and policies of the
Act and the orders of the Board, to prevent mul-
tiplicity of proceedings and unnecessary further
public expense, and in order to safeguard rights
guaranteed by the Act and to effectuate the policies
of Congress as therein declared.
(d) Upon application, reinstate to their former
or substantially equivalent positions, without preju-
dice to their wage rates, seniority, and other rights
and privileges, employees who went on strike on or
since March 27, 1967; discharging, to the extent
necessary, all employees hired since that date. In
the event that after dismissal of those employees
who were hired by Respondent on and after March
27, 1967, there are not sufficient jobs at Respon-
dent's plants for all striking employees of Respon-
dent who apply for reinstatement, such jobs as are
available shall be filled from among said striking
employees seeking reinstatement, in accordance
with their seniority or other nondiscriminatory
practice heretofore applied by Respondent in the
conduct of its business. In the event Respondent
fails so to reinstate or to place upon a preferential
hiring list as hereinbelow provided, any striking em-
ployee after his application in accordance herewith
(or fails to hire him from such preferential hiring
list as hereinbelow provided), Respondent shall
reimburse such striker in the manner set forth in
The Remedy section hereof, for losses sustained
commencing 5 days after the application for rein-
statement (or for losses sustained in the event of
Respondent's failure to hire him from such
preferential hiring list).
(e) Place all striking employees of Respondent
who apply for reinstatement and for whom no em-
ployment is available upon a preferential hiring list,
with priority in accordance with such system of
seniority or other nondiscriminatory practice
heretofore applied by Respondent in the conduct of
its business; and thereafter offer such employees
reinstatement as such employment becomes availa-
ble and before other employees are hired for such
work.
(f) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security payment
records, timecards, personnel records anu lepurts,
and all other records necessary to ascertain and
analyze the right to reinstatement and to backpay,
if any, under the terms of this recommended Order.
(g) Notify each of the said employees if
presently serving in the Armed Forces of the
United States of his right to full reinstatement upon
application in accordance with the Selective Ser-
vice Act and the Universal Military Training and
Service Act', as amended, after discharge from the
Armed Forces.
(h) Post at each of its plants in Olathe, Kansas,
copies of the attached notice marked "Appendix
A."75 Copies of said notice, on forms provided by
the Regional Director for Region 17, after being
duly signed by Respondent's authorized representa-
tive, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous
places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(i) Notify said Regional Director, in writing,
within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.76
B. The Charging Party's application to present
further evidence in support of a finding and conclu-
sion that Respondent's bargaining unit employees
or any of them were on or after March 27, 1967, to
the date of the hearing herein, discharged actually
or constructively by reason of the circumstances
described in the Charging Party's Offer of Proof
marked Charging Party's Exhibit 1 for identifica-
tion, and by reason of those circumstances entitled
to backpay herein, is hereby denied, and said offer
of proof is hereby rejected.
" In the event that this recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
18 In the event that this recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing , within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
After a hearing duly held, it was determined that
King Radio Corporation , Inc., has violated the Na-
tional Labor Relations Act. In order to remedy this
conduct , we have been required to post this notice
and to take the following steps:
WE WILL bargain collectively in good faith,
upon request, with Communications Workers
of America , AFL-CIO , as the exclusive
representative of all of our employees in the
following collective -bargaining unit, with
respect to rates of pay, wages , hours , and other
terms and conditions of employment , and em-
body in a signed written agreement any un-
derstanding reached:
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All production and maintenance em-
ployees at the 400 North Rogers Road and
139 South Brockway , Olathe, Kansas,
plants of King Radio Corporation , Inc., in-
cluding plant clericals, but excluding the
office clerical employees, accounting de-
partment employees , research and
development employees , and professional
employees , guards , and supervisors within
the meaning of the Act.
WE WILL immediately cancel the new wage
structure system which we placed into effect in
the above bargaining unit on and since Februa-
ry 1, 1967, except for any higher wages. We
shall continue to pay those higher wages and
shall not reduce or otherwise change them
without bargaining in good faith with Commu-
nications Workers of America , AFL-CIO.
WE WILL also immediately cancel all other
changes in any term or condition of employ-
ment in the above bargaining unit , except such
higher wages , which have been placed into ef-
fect without bargaining in good faith with
Communications Workers of America,
AFL-CIO , at any time since that Union has
represented our employees for collective-bar-
gaining purposes.
WE WILL immediately place back into effect
the wage structure system , including automatic
wage rate progressions , which was in effect im-
mediately prior to February 1, 1967; except
that we will keep in effect all increases in
minimum wages ( whether under any minimum
wage law amendment or otherwise , for all job
classifications ) placed into effect on or since
February 1, 1967.
WE WILL, upon application , reinstate to their
former or substantially equal jobs , without af-
fecting their wage rates , seniority, or other
rights and privileges , all employees who went
on strike on or after March 27, 1967; and, to
the extent necessary to accomplish that, WE
WILL discharge any and all employees , replace-
ments, or substitutes hired since then . And, in
the event we fail to reinstate any striking em-
ployee who applies for reinstatement , WE WILL
compensate each and every such employee by
paying to him or them moneys covering any
and all losses ( including backpay and interest)
sustained commencing 5 days after the applica-
tion for reinstatement . In the event there are
insufficient jobs open for the purpose of such
reinstatements , we will set up and hire such
striking employees from a preferential hiring
list on a nondiscriminatory seniority basis.
WE WILL NOT maintain and enforce against
employees for union organizational affiliation,
activity , support , or sympathy a discriminatory
prohibition of all talking while at work or a dis-
criminatory warning notice system in connec-
tion therewith ; but, instead , WE WILL bargain
with the Union about valid , nondiscriminatory
workrules.
WE WILL NOT contract out, or agree or ar-
range or offer to contract out, any work per-
formed by employees in the above bargaining
unit, without notice to and bargaining in good
faith with the employees' Union; and WE WILL
furnish to the Union , at its request , information
with regard to such contracting out or any
other appropriate information needed by the
Union for collective -bargaining purposes with
us.
WE WILL NOT threaten , warn , advise , or noti-
fy any employee striking because of any unfair
labor practice that he or any other such strik-
ing employee is subject to discharge, per-
manent replacement , or deprivation of benefits
(other than his wages while out on such strike)
unless he returns to work.
WE WILL NOT in any other manner interfere
with, restrain , or coerce any employee in the
exercise of his right to self-organization; to
form , join, or assist any labor organization; to
bargain collectively through representatives of
his own choosing ; to engage in concerted ac-
tivities for the purpose of collective bargaining
or other mutual aid or protection ; or to refrain
from any and all such activities.
WE WILL deal and cooperate with your
Union in every way that the law requires, so
that you may bargain collectively with us if this
is what you desire.
KING RADIO
CORPORATION, INC.
(Employer)
Dated By
(Representative ) (Title)
Note: We will notify the above employees if
presently serving in the Armed Forces of the
United States of their right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training and
Service Act , as amended , after discharge from the
Armed Forces.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions , they may
communicate directly with the Board's Regional
Office , 610 Federal Building , 601 East 12th Street,
Kansas City, Missouri 64106, Telephone 374-5181.
APPENDIX B
KING RADIO CORPORATION, INC. 1083
Table I: Chronology of Events Antedating Instant
Proceeding
3/7/66: Union organizational drive begins.
4/12/66: Union requests recognition.
4/28/66: In violation of § 8(a)(1) of the Act,
Respondent through its attorney, Haynes,
coercively interrogates employee Juanita
Hamblin. (King I)
6/13/66: Regional Director for Region 17 is-
sues direction of election.
6/16-6/22/66: Respondent forwards election
campaign letters to its employees. (King I)
6/22/66: In violation of § 8(a)(1) of the Act,
Respondent promulgates and thereafter dis-
criminatorily applies an unlawful no-solicita-
tion rule against employees in order to
restrict their union organizational efforts.
(King I)
6/30/66: NLRB holds secret election of
Respondent's employees; Union wins,
182-114. (King I)
6/30/66: After Board-conducted election (lost
by Respondent), in violation of § 8(a)(1) &
(5) of the Act Respondent unilaterally,
without consultation with employees' elected
Union exclusive bargaining representative,
promulgates and thereafter discriminatorily
applies (1) an unlawful "no-talking" rule
and (2) an unlawful "warning slips" policy
against employees to restrain their union or-
ganizational activities, and (3) discon-
tinuance of its longstanding savings bonds
payroll deduction system, in reprisal for em-
ployees' election of Union. (King I)
1966: Respondent files objections to Board-
conducted 6/30/66 election.
7/20/66: In violation of § 8(a)(3) & (1) of the
Act, Respondent discharges employee Marie
Thomas for union activity. (King I)
7/22/66: In violation of § 8(a)(1) & (5) of Act,
Respondent unilaterally, without consulta-
tion with employees' elected Union exclusive
bargaining representative, establishes and ef-
fectuates a new mandatory employee retire-
ment policy, retiring employee Helen West
thereunder on September 1 (following notifi-
cation on August 10) after threatening her
with loss of seniority, insurance, and other
benefits. (King I)
7/29/66: In violation of § 8(a)(3) & (1) of Act,
Respondent discharges employee Doris
Owens for union activity. (King I)
8/19/66: Overruling Respondent's objections
to Board-conducted 6/30/66 election, Re-
gional Director for Region 17 certifies Union
as exclusive bargaining representative of
conventional production and maintenance
unit of Respondent's employees. (King I)
1966: Respondent files request for review by
Regional Director for Region 17's 8/19/66
certification of Union.
8/31/66: Union files charge against Respon-
dent, Case 17-CA-3007. (King I)
9/1/66: In violation of § 8(a)(3) & (1) of the
Act, Respondent discharges employee Vivi-
an Waite for union activity. ( King I)
9/6/66: In violation of § 8(a)(3) & (1) of Act,
Respondent discharges employee Florence
Theis for union activity. (King I)
9/21/66: NLRB denies Respondent's request
for review of 8/19/66 certification of Union
as employees' duly elected exclusive bar-
gaining representative. (King I)
10/4/66: Collective-bargaining information
discussed preliminary to collective bargain-
ing; in violation of § 8(a)(1) & (5) of Act,
Respondent delayed collective bargaining
prior to this date, in order to undermine
Union. (King I)
10/5/66: Amended charge ( King I) filed by
Union.
10/7/66 (apx.): In violation of § 8(a)(1) & (5)
of Act, Respondent unilaterally, without
consultation with employees' elected Union
exclusive collective-bargaining representa-
tive, changes pay system for some bargaining
unit employees from weekly to biweekly.
(King I)
10/12/66: In violation of § 8(a)(3) & (1) of
Act, Respondent suspends employee Pat
Bennett for 2 weeks for noncompliance warn
invalid no-solicitation rule. (King I)
10/25/66: 1st collective-bargaining session
held.
11/3/66: Collective-bargaining session held.
11/8/66: Further amended charge ( King I)
filed by Union.
11/22/66: Collective-bargaining session held.
11/30/66: Complaint (King I) issued by Re-
gional Director for Region 17.
12/1/66: Collective-bargaining session held.
12/5/66: Collective-bargaining session held.
12/6/66: Further amended charge ( King I)
filed by Union; amended complaint (King I)
issued by Regional Director for Region 17.
12/7/66: Collective-bargaining session held.
12/9/66: Collective-bargaining session held.
12/19-12/23/66: King I hearing held before
Federal Trial Examiner Ladwig; continued
to 1/17/67.
1/9/67: Collective-bargaining session held.
1/ 17/67 & 1/ 18/67: King I hearing continued
before Trial Examiner Ladwig; continued to
2/28/67.
1/19/67: In violation of § 8(a)(1) of Act,
Respondent discharges its supervisor, Mar-
lene Jones, and places on probation its su-
pervisors, Martha Walker & Naomi Cesar,
for testifying or willingness to testify before
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NLRB in response to NLRB General Coun-
sel subpena in King I.
1/20/67: Union files charge against Respon-
dent in King II (166 NLRB 180).
1/26/67: Amended charge (King II) filed by
Union ; complaint in King II issued by Re-
gional Director for Region 17.
1/30/67: In violation of § 8(a )(1) of Act,
Respondent constructively discharges its su-
pervisor , Naomi Cesar, for willingness to tes-
tify before NLRB at behest of NLRB
General Counsel in-King I.
1/30/67: Union receives notification from
Respondent (dated 1/28/67, Saturday) that
Respondent will make pay changes ( includ-
ing statutory minimum wage increases) on
2/1/67.
1 /31 /67: Collective- bargaining session held.
2/1/67: Respondent makes pay changes (in-
cluding statutory minimum wage increases).
2/13/67. Respondent files petition with NLRB
to decertify Union as its employees ' collec-
tive -bargaining representative (Case
17-RC-5030).
2/16/67: Strike authorized by vote of Respon-
dent's unit employees , at meeting attended
by 138 employees (vote, 129-9).
2/23/67: Further amended charge in King II
filed by Union.
2/28/67: King I hearing concluded and King II
hearing commenced before Trial Examiner
Ladwig.
3/l/67: King II hearing concluded before Trial
Examiner Ladwig.
3/14/67: Respondent writes Osawatomie State
Hospital regarding contracting out work
there. (King III)
3/24/67: Collective-bargaining session held.
3/27/67: Respondent 's employees ( 250) go out
on strike. (King III)
4/4/67: NLRB denies Respondent 's petition to
decertify Union (Case 17-RC-5060).
4/17/67: Respondent receives shipment of
work contracted out by it to Osawatomie
State Hospital.
4/24/67 : Respondent receives further shipment
of work contracted out by it to Osawatomie
State Hospital.
5/1/67: Trial Examiner Ladwig issues decision
in King I finding Respondent violated §
8(a)(1), (3), & (5) of Act by: (1) coercive
interrogation by its attorney , Haynes; (2)
promulgation of discriminatory no-solicita-
tion rule ; ( 3) adoption and discriminatory
enforcement of "absolutely no talking" and
warning slip rule and harassment system, and
also without notifying or bargaining with
Union with respect thereto; (4) repriseful
[sic] cancellation of bargaining unit em-
ployees' U.S. Savings Bond payroll deduc-
tion system , and also without notifying or
bargaining with Union with respect thereto;
(5) establishment of new mandatory retire-
ment policy and compelling employee West
to retire thereunder on threat of forfeiture of
seniority , insurance , and other economic
benefits, and also without notifying or bar-
gaining with Union with respect thereto; (6)
establishment of change in pay system for
bargaining unit clerical employees , without
notifying or bargaining with Union with
respect thereo; (7) discharging employees
Marie Thomas on 7/20/66, Doris Owens on
7/29/66, Vivian Waite on 9/1/66, and
Florence Theis on 9/6/66, for union activi-
ties; ( 8) suspending employee Pat Bennett
on 10/12/66 for 2 weeks for noncompliance
with invalid no-solicitation rule; (9 ) delaying
after post-Board -election certification of
Union, in order to delay collective bargain-
ing, so as to undermine Board -certified
Union. Trial Examiner Ladwig recommends
that Respondent be required to: (1) cease
and desist from the foregoing conduct; (2)
cease and desist from promulgating, main-
taining , or enforcing a discriminatory no-sol-
icitation rule; (3) cease and desist from
"maintaining or enforcing its discrimina-
torily motivated no-talking and warning-
notice rules "; (4) cease and desist from mak-
ing unilateral changes in working conditions;
(5) cease and desist from attempting to un-
dermine Union by delaying good-faith bar-
gaining ; ( 6) cease and desist from "in any
other manner interfering with, restraining, or
coercing employees in the exercise of their
rights under Section 7 of the Act"; (7) offer
the discharged employees full reinstatement
with backpay; ( 8) rescind unilaterally an-
nounced mandatory policy of age 65 retire-
ment or loss of seniority and benefits ; ( 9) ex-
punge from its personnel records warning
notices issued to employees under its dis-
criminatory warning notice rule; (10) restore
unilaterally discontinued employees ' saving
bonds payroll deduction program ; ( 11) bar-
gain in good faith with Board-certified
Union; ( 12) post an appropriate notice to
employees , informing them of the foregoing.
(King I)
5/4/67: Trial Examiner Ladwig issues decision
in King II finding Respondent violated §
8(a)(1) of Act by : (1) discharging its super-
visor , Marlene Jones, and placing on proba-
tion its supervisors , Martha Walker and
Naomi Cesar on 1/19/67, for testifying or
willingness to testify before NLRB in King I
in response to subpena of NLRB General
Counsel; (2) constructively discharging its
supervisor, Naomi Cesar, on 1/30/67 for
same reason . Trial Examiner Ladwig recom-
mends that Respondent be required to: (1)
cease and desist from the foregoing conduct;
(2) cease and desist from " in any other
KING RADIO CORPORATION, INC. 1085
manner interfering with , restraining, or
coercing employees in the exercise of their
rights under Section 7 of the Act"; (3) offer
employees Jones and Cesar full reinstate-
ment with backpay ; ( 4) expunge from its
personnel records adverse entries based
upon Respondent 's foregoing actions; (5)
post an appropriate notice to employees, in-
forming them of the foregoing . ( King II)
5/5/67: Respondent receives further shipment
of work contracted out by it to Osawatomie
State Hospital.
5/9/67: Respondent receives further shipment
of work contracted out by it to Osawatomie
State Hospital.
5/9/67: Union requests information from
Respondent regarding work contracted out
by Respondent to Osawatomie State
Hospital . ( No response at any time from
Respondent.)
5/15/67: Respondent receives further shipment
of work contracted out by it to Osawatomie
State Hospital.
APPENDIX C
Table II: Chronology of Events after Institution of
Instant Proceeding
6/1/67: Respondent receives further shipments
(two) of work contracted out by it to
Osawatomie State Hospital.
6/1/67: Union files charge against Respondent
in instant case, King III.
6/13/67: Respondent receives further shipment
of work contracted out by it to Osawatomie
State Hospital.
6/16/67: Collective-bargaining session held.
6/19/67: Collective-bargaining session held.
6/20/67: Collective-bargaining session held.
6/28/67: NLRB issues Decision and Order
(166 NLRB 180) affirming 5/4/67 decision
of Trial Examiner Ladwig and adopting his
Recommended Order in King II.
6/30/67: NLRB issues Decision and Order
(166 NLRB 649) affirming 5/1/67 decision
of Trial Examiner Ladwig and adopting his
Recommended Order in King I.
8/29/67: Amended charge filed by Union in in-
stant case, King III.
8/30/67 : Complaint issued by Regional
Director for Region 17 in instant case, King
III.
9/11/67: Respondent moves in instant case to
(1) strike certain allegations from complaint
and (2 ) make complaint more definite and
certain or for bill of particulars.
10/6/67: Order by Trial Examiner Schneider
granting in part , denying in part , and defer-
ring in part until hearing , Respondent's
9/ 1 1 /67 motion.
10/11/67: General Counsel serves bill of par-
ticulars of complaint in instant case.
10/12/67: Regional Director for Region 17 de-
nies Respondent 's application to move place
of hearing of instant case from Kansas City,
Missouri , to Olathe , Kansas; and, at Respon-
dent 's request, extends time to answer to
10/23 and reschedules hearing from 11/6 to
11/14/67.
10/17/67; Respondent serves answer and mo-
tion to strike out certain allegations of com-
plaint.
10/23/67 . Regional Director for Region 17 de-
nies Respondent's application for further ad-
journment of hearing in instant case.
10/24/67 : Amendment to complaint in instant
case issued by Regional Director for Region
17.
10/26/67: Regional Director for Region 17
reschedules hearing in instant case from
11/14 to 11/20/67.
11/2/67: Respondent moves in instant case to
make amendment to complaint more
definite and certain or for bill of particulars.
11/8/67: General Counsel serves further bill of
particulars relating to amendment to com-
plaint in instant case, Regional Director for
Region 17 extends Respondent 's time to
answer amendment to complaint in instant
case.
11/20-11/22 and 12 /12-12/19/67: Hearings
held in instant case (King III) before Trial
Examiner Stanley N. Ohlbaum.
12/21/67: Charging Party (Union ) files offer of
proof (dated 12 / 19/67) in instant case.
2/5-2/7 /68: Briefs in instant case received
from counsel, time for submission thereof
having been extended from 1 /22/68 at their
request.
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX D
Table III: Work Contracted Out to Osawatomie
Workshop Invoice and/or
Delivery Date (1967) to
Resp.
Unit
Quantity
Cost
Charge
per
Unit
Amt. of
Billing to
Resp.
April 17 450 $.06 $27.00
April 24 450 .06 27.00
May 5 300 .06 18.00
May 9 100 .06 6.00
May 15 400 .06 24.00
June 1 700 .06 42.00
June 1 450 .06 27.00
June 13 500 .06 30.00
Totals . . . 3350 . . . . . . . . . . $201.00
KING RADIO CORPORATION, INC.
APPENDIX E
Table IV
Respondent 's Origingal ( November 22, 1966) Wage Proposal
1087
Job Category or 1Classification ExistingHourly Respondent ' s Proposed ( 11/22 / 66) Hourly Rate
Rate "Trainee " " Start" " Base Rate " "Top Rate"
Trainee $1 . 25-1.45 - - - - - - - -
Pre-Former 1.40-1 . 60 $1.40 $1 . 50 $1.75 $1.75
Carrier ? 1.40 1 . 50 1.75 1.75
Sub-Assembler 1.40-1.70 1 . 40 1.50 1.90 1.90
Stock Clerk
(Clerk, Office
:x Stores ) 1.40-1.80 1 . 40 1.50 1 . 90 1.90
Assembler (Fi-
nal Assembler 1.40-1 . 80 - - 1.50 1 . 90 2.05
Sheet Metal
Assembler ? 1.40 1 . 50 1.90 2.05
Inspector ? 1.40 1.50 1 . 90 2.20
Utility &
Rework ( Utili-
ty & Inspection) 1.40-1.90 - - - - 1.90 2.20
Truck Driver ? 1 . 50 1.60 1 . 90 2.20
Shipping Clerk ? 1 . 50 1.60 1 . 90 2.20
Helper, Machine
Shop 1 . 50-2.00 1 . 70 1.80 2 . 10 2.35
Technicians &
Machinists
(various
categories ) 1.95-? 2 . 50-? 2.60 -? 2.85-? 3.10-
1
APPENDIX F
Table V
Respondent ' s December 1, 1966, Wage Rate Proposal
Job Category
or
Respondent ' s Proposed Hourly Rates (12/1/66 vs. 11 /22/66)
"Trainee " "Starting Rate " " Base Rate " "Top Rate"
Classification 12-1 11-22 12-1 11-22 12-1 11-22 12-1 11-22
Pre-Former $1.40 $1.40 $1.50 $1.50 $1.65 $1.75 $1.75 $1.75
Carrier 1.40 1.40 1.50 1.50 1.65 1.75 1.75 1.75
Sub-Assembler 1.40 1,40 1.50 1.50 1.70 1.90 1.90 1.90
Stock Clerk 1.40 1.40 1.50 1.50 1.70 1.90 1.90 1.90
Final Assembler 1.50 1.50 1.80 1.90 2.05 2.05
Sheet Metal
Assembler 1.40 1.40 1.50 1.50 1.80 1.90 2.05
Inspector 1.40 1.40 1.50 1.50 1.85 1.90 2.20 2.20
Utility & Rework 1.50 -- 1.85 1.90 2.20 2.20
Truck Driver 1.50 1.50 1.60 1.60 1.85 1.90 2.20 2.20
Shipping Clerk 1.50 1.50 1.60 1.60 1.85 1.90 2,20 2.20
Production Clerk 1.50 -- 1.85 2.20
Helper , Machine
Shop 1.70 1.70 1.80 1.80 2.05 2.10 2.35 2.35
Technicians & Ma-
chinists (various
categories) 2.50- 2,50- 2.60- 2.60- 2.85- 2.85- 3.10- 3,10-
2.80 ? 3.60 ? 3.75 ? 3.90 3.90
KING RADIO CORPORATION, INC.
APPENDIX G
Table VI
Dates pf Megptoatopm Sessions and of Unfair Labor Practices i; ii
Year &
Month Dat
1 2 3 4 5 6 7 9 1 1
0
1 1
1
1
2
1
3
1
5
1
6
1
7
1 1
8
1 1
9
21
0
2
1
2
2
2
3
2
4
2
5
2
6
2
7
2
8
2
9
[,3 3
1
66 Apr V
May
Jun V Fs`
Jul V V V
Aug
Set) V V
Oct Va V b/ N
Nov N
I
N
Dec N N N N
19
67 Jan N V V N
Feb V c/
Mar (V) N
Aor V V
May V V
Jun V N N N
I.e., continuing unfair labor practice , unlawful delay of
bargaining until this date.
b/ I.e., on or about (unilateral pay system change for some
bargaining unit employees).
Cl Respondent files petition to decertify Union; dismissed by
NLRB 4-4-67.
i/ Does not include continuing violations here found (harassing
enforcement of "absolutely no talking" rule; surface bargaining).
ii Legend - - R : Union request for recognition
E : NLRB secret election, won by Union 182-114
V : Unfair labor practices by Respondent in viola-
tion of National Labor Relations Act
N : Negotiation session
1089
354-126 O-LT - 73 - pt. 1 - 70