King Radio Corp., Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1967

166 N.L.R.B. 649 (N.L.R.B. 1967)

KING RADIO CORP., INC. 649
King Radio Corporation, Inc. and Communications
Workers of America, AFL-CIO. Case
17-CA-3007
June 30,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On May 1, 1967, Trial Examiner Marion C. Lad-
wig 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 desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
further found that the Respondent had not engaged
in certain other unfair labor practices alleged in the
complaint and recommended dismissal as to them.
Thereafter, Respondent filed exceptions to the
Trial Examiner's Decision and a supporting 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
brief, and the entire record in the case, and hereby
adopts the findings,' conclusions,2 and recommen-
dations of the Trial Examiner.3
ORDER
fore deny the said request See Monroe Auto Equipment Company, 164
N LRB 501, at fn. I Further, in the absence of evidence that Respon-
dent's refusal to bargain continued after September 21, we do not adopt
that portion of the Trial Examiner's recommendation which extends the
certification for 1 year following Respondent's posting of the required
notice.
' We agree with the Trial Examiner's finding that Respondent ter-
minated Doris Owens in violation of Section 8(a)(3) and (I) of the Act
Upon the instant record, we further find that Respondent's discharge of
Owens, insofar as it resulted from enforcement of the discriminatorily
promulgated and applied no-talking rule, was independently violative of
Section 8(a)(1) of the Act
' In the absence of exceptions, we adopt pro forma the Trial Ex-
aminer's finding that Supervisor Like was not discharged in violation of
Section 8(a)(1) of the Act
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Trial Examiner: This proceeding
was heard at Kansas City, Missouri, on December
19-23, 1966,1 and on January 17-18 and February 28,
1967, pursuant to a charge filed on August 31 and
amended on October 5, November 8, and December 6
by Communications Workers of America, AFL-CIO,
herein called the Union, and pursuant to a complaint is-
sued on November 30 and amended on December 6. The
case involves primarily the issues as to whether the
Respondent, King Radio Corporation, Inc.,2 herein called
the Company, (1) during the election campaign, (a) en-
gaged in coercive interrogation, and (b) promulgated an
invalid no-solicitation rule; and (2) following a majority
vote for the Union on June 30, (a) made unilateral
changes in benefits and working conditions, (b) dis-
criminatorily suspended and terminated union suppor-
ters, and (c) delayed bargaining to determine the Union,
in violation of Section 8(a)(1), (3), and (5) of the National
Labor Relations Act, as amended.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due considera-
tion of the briefs filed by the General Counsel and the
Company,3 I make the following:
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, as modified
below, and hereby 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 herein modified:
1. Delete the second sentence from paragraph
2(e) of the Trial Examiner's Recommended Order.
2. Delete from the last indented paragraph of the
attached notice as an Appendix to the Trial Ex-
aminer's Decision the words, "as if the first year of
the certification were now beginning."
' The Charging Party has filed exceptions to the Trial Examiner's Deci-
sion, requesting a monetary remedy for losses and expenses incurred as a
result of the Respondent's unlawful refusal to bargain. We deem it inap-
propriate in this case to depart from our existing policy with respect to
remedial orders in cases involving violations of Section 8(a)(5), and there-
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE LABOR
ORGANIZATION INVOLVED
The Company is a Kansas corporation, which is en-
gaged in the manufacture of airplane radios and related
items at its Olathe, Kansas, plants, where it annually
receives materials and products valued in excess of
$50,000 directly from outside that State, and from where
it annually ships goods and products valued in excess of
$50,000 directly to customers outside the State. The
Company admits, and I find, that it is engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act. The Union is a labor organization within the mean-
ing of the Act.
Unless otherwise indicated, all dates refer to the year 1966.
2 Before hearing evidence of the extent of participation by Company
Counsel William G Haynes in the Company's allegedly unlawful preelec-
tion and postelection conduct, the Trial Examiner granted the Company's
motion to strike the counsel's name as a party respondent.
9 As noted hereafter, the Company's brief contains a number of inaccu-
racies
166 NLRB No. 70
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preelection Violations
I Interrogation by company attorney
The Union began its organizational drive at the Com-
pany's two plants on March 7, and requested recognition
on April 12. On an evening soon thereafter, the Company
held a meeting in which Company Counsel William G.
Haynes spoke and employee Juanita Hamblin asked a
number of questions. On April 28, Counsel Haynes went
to the Company's new plant to prepare for a hearing in
the representation case. After talking to several lead girls,
he summoned Mrs Hamblin from her work station and
questioned her, in private, in the conference room
Without advising her whether the interview was on a
voluntary basis, he reminded her that she had raised
"several questions the other night." and inquired if she
had any others. She said she did not, whereupon he sug-
gested that they "talk a little bit." that "maybe we can
both come to a better understanding of the situation " He
talked to her over an hour, causing her to begin crying at
one point Besides asking her why she was personally un-
happy at work, he asked her repeatedly if she knew who
else was dissatisfied and what they were unhappy about.
When she mentioned that there was some dissatisfaction
with wages, Haynes asked if there was anyone in particu-
lar who was dissatisfied about wages When she was on
cross-examination, the company counsel asked if she got
the impression that he was interrogating her about her
and others' union activities She answered that she did,
explaining that "we wound up comparing companies that
had unions to the one I was working for. which did not."
Also on cross-examination, she testified that she thought
the purpose of the questioning was to determine where
she stood with regard to the Union, which was not
directly mentioned
The company brief asserts that before the company
counsel questioned Mrs Hamblin, he announced "that
under no circumstances did he desire to talk about the
Union with her nor did he want to know how she or any
other employees felt about the Union or union activities "
The transcript references in the beef do not support such
an assertion, and there is no evidence that the counsel
made such a statement to her
Although Counsel Haynes did not refer directly to
union activities, I find that the above-described interroga-
tion of employee Hamblin on April 28, prying into her
subjective state of mind and delving into the attitudes of
other employees toward the Company and their identity,
constituted subtle, but unmistakable, inquiries about her
union support and about the union activities of others.
Such inquiries exceeded the necessities of the legitimate
purpose of preparing for the representation hearing, and
placed the employee under pressure to reveal information
about organizing activities and union sympathies I there-
fore find that the interrogation was coercive and violated
Section 8(a)(I) of the Act
B Invalid No-Solicitation Rule
Until June 22, 8 days before the election on June 30,
the Company had not had a no-solicitation rule, and had
permitted solicitation for various purposes during work-
ing hours. The Company also had been rather lenient in
permitting talking on the job, except when the talking
became too loud or excessive.
Vice President James Harris testified that on June 22,
after consulting with Counsel Haynes, he had the follow-
ing rule posted-
Inasmuch as we have received several complaints
from various employees that they have been
disturbed during working hours by other employees,
we feel that it is necessary to establish the following
rule.
It will be considered a violation of Company Policy
and cause for discharge for any employee to discuss
politics or religion or engage in any type of solicita-
tion for any cause during working hours in a work
area inside the plant.
Prior to this notice, a direction of election had been issued
on June 13, and the Company had mailed to its em-
ployees the first of nine election campaign letters on June
16 (follcwed by one on June 17, two on June 20, and one
on June 22).
Although the rule did not specifically mention
discussing the Union or soliciting for it during working
hours, the evidence is clear that the rule was intended to
appiy to union solicitation during working hours. Vice
President Harris testified that the rule was posted as a
result of a report he had on June 21 from employee Maria
England that two employees in the lunchroom had urged
her to sign a union card , using threatening language
Such a rule against union solicitations during working
time i^: presumptively valid, but only "in the absence of
evidence that the rule was adopted for a discriminatory
purpose." The Wm. H. Block Company, 150 NLRB 341,
342-343 (1964). Here, the General Counsel presented
sufficient evidence to rebut the presumption of validity,
and proved that the rule was not promulgated in
furtherance of a legitimate interest of serving production,
order, or discipline, but for the purpose of defecting its
employees' organizational efforts.
Despite the wording of the notice, that "we have
received several complaints from various employees that
they have been disturbed during working hours by other
employees," Harris testified about only the one com-
plaint by one employee, concerning one incident during
the employee's break for a drink of water. Undoubtedly,
if there had in fact been any disruption of production re-
ported to Harris, he would have so testified, rather than
agreeing unequivocally that the new rule "was posted as
a result of your conversation with employee Maria
England."
Moreover, the evidence demonstrates that Harris did
not in fact believe that Mrs England had been
threatened, and that he used her complaint as a pretext
for promulgating the rule. He admitted that when she told
him "that she was afraid because of the way she had in-
terpreted the statement" that the two employees had
made to her, he told her he "didn't think that it was maybe
as bad as she had first thought." (Mrs. England's
testimony about what she had been told varied sharply
from her pretrial affidavit. In the affidavit, sue stated that
two girls spoke to her at the water fountain in the
lunchroom, asked who she was for, and when she an-
swered that she did not know what to do yet, they told
her, "If you want better money and know what's good for
you, you'd better vote for the Union " On the stand, she
claimed that when she went to get a drink of water in the
lunchroom, the two employees asked her what she was
KING RADIO CORP., INC. 651
going to do, and she asked, "Going to do about what?"
They said, "About the union," and she answered, "I am
not going to do nothing." Then they purportedly told her:
"Well, if you know what's good for you, you better join
the union.") Quite significantly, Harris did not investigate
the alleged threat, did not discharge either of the two girls,
and made no mention of threats in the notice. Instead,
after conferring with counsel, he posted the rule, warning
of discharge for discussing "politics or religion," 4 or so-
liciting during working hours "in a work area." On its face,
the rule would not apply to soliciting in the lunchroom, a
nonworking area.
In an effort at the hearing to extend the application of
the rule to the lunchroom, Harris testified (upon examina-
tion by company counsel):
Q. And Maria England told you at that time that
this conversation where she was alleged to have been
threatened took place in the lunchroom?
A. Yes, sir.
Q. Did you intend this rule to apply to
lunchroom?
A. If it was during working hours.
Q. In the lunchroom?
A. Sure.
Q. The lunchroom is a working area of the plant
as far as you are concerned?
A. Well, there are people that go in there during
working hours other than break times, and lunch
time, there is a water fountain there.
Q. So this rule was to be enforced during working
hours throughout the plant in every place in the
plant?
A. That is right.
As if to add credence to this testimony, Production Su-
perintendent Bible testified that Harris interpreted the
rule for her at the time, telling her that if employees "went
to the lunchroom during their working hours to get a drink
or wet their sponges, which they quite often do, they were
not to solicit at that time." Both Harris and Mrs. Bible
appeared, as I observed them giving this and other
testimony on the stand, to be willing to fabricate whatever
might be believed to support the Company's cause. I dis-
credit this testimony as mere afterthoughts.
Harris' testimony was given when he was called as an
adverse witness by the General Counsel on December
23. According to him, Mrs. England's report of the one
lunchroom incident caused him to post the new rule.
However on January 17, 1967, when Mrs. England was
called as the Company's first defense witness following
an adjournment in the hearing, she claimed that on June
21, she also reported to Harris an earlier conversation, in
which a third person had talked to her at her work station
during working hours about joining the Union (thus, "dur-
ing working hours in a work area" as proscribed by the
rule). In response to an objection, the company counsel
explained: "We are offering this testimony basically for
the purpose of satisfying why the no-solicitation and no-
distribution rule was promulgated on or about June 22."
But this testimony conflicts not only with Harris'
testimony, but also with Mrs. England's pretrial affidavits
and with the testimony of Production Superintendent
Bible that Harris explained at the time that "Maria Eng-
land had come to him and told him she had been
threatened." I find that Mrs. England was mistaken about
reporting two different incidents to Harris on June 21.
Two of the General Counsel's witnesses (whom I
credit) gave some revealing testimony about the June 21
conversation between Harris and Mrs. England. Plant
clerical employee Marion Milstead testified that their
conversation "struck me as funny because they went over
to the corner of the room when his office was empty."
Mrs. Milstead testified that she did not hear much of
what was said, but "I remember two instances when she
[Mrs. England] got pretty loud, and I heard her say that
she had to eat, and then when she left, she said, well, she
would let him know what the girls said." Similarly, plant
clerical Vivian Waite (who worked in the same outer of-
fice) credibly testified: "I was sitting by my desk and
Maria England and Mr. Harris went over in the far corner
and ... I did hear that she would report anything that the
girls out on the line said." (Both Harris and Mrs. England
testified that the conversation was in Harris' private of-
fice. But in so testifying, they gave conflicting testimony:
Harris testifying that both doors to his office were closed,
and Mrs. England testifying that one was open and one
was closed.) I find that Harris arranged with Mrs. Eng-
land to report her observations of any union activities on
the job.
The Company admittedly continued to permit talking
on the job between June 22 and the June 30 election.
Furthermore, the Company continued both before and
after the election to permit solicitation for purposes not
connected with union activities, and enforced the rule
only against union solicitation as discussed hereafter. In
this connection, I rely particularly on the credited
testimony by Production Supervisor Marlene Jones (who
was corroborated in part by Production Supervisor
Martha Walker) that between June 22 and 30, the Com-
pany permitted, during working hours and in the working
area, a solicitation for the employees' annual birthday
present for Production Superintendent Bible. Thus, the
June 22 notice, which did not specifically mention the
Union nor union activities, was clearly intended to place
a special restriction on union organizational efforts while
the Company was permitting other discussions and so-
licitation during working hours in work areas.
I therefore find, from all the evidence, that the Com-
pany discriminatorily promulgated the June 22 no-so-
licitation rule for the purpose of defecting its employees'
organizational efforts, in violation of Section 8(a)(1) of
the Act.
C. Postelection Violations
1. Unilateral changes
a. No-talking rule and warning slips
The election was held on the morning of June 30. That
afternoon, according to credible testimony of Production
Supervisor Martha Walker, Assistant Production Su-
perintendent Roberta Johnson "came to me and told me
that from this moment on there was to be no talking and
she meant absolutely no talking, and this was an order
from [Production Superintendent] Bible, and I went
around and told each and every one of my [production]
i When asked why he mentioned religion in the notice, Harris testified
that he did not know. According to one witness, employees thereafter
began referring to Production Superintendent Bible as "Mrs Book" in
order not to violate the rule
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
girls." Likewise (according to credited testimony by
Production Supervisor Marlene Jones) Assistant Produc-
tion Superintendent Helen Lawson, on the same after-
noon , told Mrs. Jones that "as of today there will be no
further talking about anything " The change in the previ-
ously lenient policy regarding talking on the job was cor-
roborated by a number of other employees.
The Company had conflicting defenses one that there
was no change in the rule on talking, and the other, that
Company Counsel Haynes, himself, met with the super-
vision immediately after the election and recommended
a sharp restriction on talking.
Despite the wording of the June 22 notice, discussed
above, forbidding (apart from solicitation) only talking
about religion and politics, and despite the provision in
the "lead girl" job description concerning the control of
only "excessive" conversation, Company Counsel
Haynes contended at the beginning of the hearing that a
"no-talking" rule had existed "at the company's facilities
and plants since the inception of the company."
Thereafter in the hearing, despite overwhelming evidence
to the contrary, the Company presented as its first
defense witness Maria England, who testified that the no-
talking rule had "always" been the same: "No talking on
the line unless it's about your job," and that the no-talking
rule had "always" been handled the same When the com-
pany counsel asked her on direct examination: "Now, did
that rule change at any time, as far as you know," she an-
swered: "Not to my knowledge, no " Her testimony was
seriously impeached on cross-examination (Mrs.
England appeared eager to protect her job and to please
her Employer.) I do not credit her conflicting testimony,
and I reject the Company's no-change theory.
Next, Production Superintendent Bible (who, as a
woman, testified that "you can't have people not say a
word all day unless it is about their work") revealed the
postelection advice given by the attorney She testified
that on June 30, after the election, Counsel Haynes and
Vice President Harris called "everyone in supervision"
(which did not include the lead girls) into the conference
room and, after discussing the purported excessive talk-
ing, which "was becoming worse every minute"
... [Y]ou [Counsel Haynes] told us, and so did
Mr. Harris, that to enforce it [the no-talking rule],
and you said that anything that we did, very possibly
they can file an unfair labor practice against us, so we
must have something in writing, and this is what
brought on the warning notices.
This testimony, about the company counsel referring
after the election to possible unfair labor practice charges,
and to having "something in writing" as a defense, ap-
pears to be of primary importance in understanding the
Company's subsequent conduct, and its shifting positions
and conflicting testimony
Mrs. Bible further testified that Counsel Haynes had
told them in a previous meeting 2 or 3 weeks before the
election that he "felt sure that after the election it would
all calm down and get back to normal," but that they re-
ported to the counsel in the meeting following the election
that the excessive talking had caused the quality and
quantity of production to go down. As she testified, she
appeared to be revealing only part of the truth, and to be
fabricating parts of the defense. However, I have no
doubt that during the election campaign, the counsel did
meet with the supervision and told them then (when the
Company was seeking votes) not to clamp down on talk-
ing, and that after the Union won the election the counsel
made recommendations about prohibiting all talking ex-
cept concerning work.
I do not credit Mrs. Bible's claim that production had
been adversely affected by talking before the election. I
credit instead the testimony by Production Supervisors
Walker and Jones that the employees were not talking
more on the job during the 2 or 3 weeks before the elec-
tion than they had previously . I note that the Company
did not offer any records to show that production had fal-
len off either in quality or quantity Furthermore, I note
that the Company had scheduled its annual vacation shut-
down to begin the day after the election , to extend for
more than 2 weeks, until July 18. Assuming , contrary to
my findings , that there had been excessive talking before
the election and that the company counsel had been refer-
ring to this excess when he advised the Company 2 or 3
weeks earlier that he "felt sure that after the election it
would all calm down and get back to normal " (as claimed
by Mrs. Bible), it is unlikely that the counsel-in the
absence of a discriminatory motivation on the part of the
Company -would have changed this advice and recom-
mended such a strong no-talking rule prior to the shut-
down , before determining the extent of talking after the
return to work . (The Company ' s brief misstates the
above-quoted portion of Mrs. Bible's testimony, "you
told us ... to enforce it," by asserting : "On the day of the
election Respondent's counsel advised supervision that
ifthe excessive talking didn ' t improve that the established
rule should be enforced ... ( Emphasis supplied.).)
From all the evidence and the circumstances, I find
that there is merit to the General Counsel 's contention
that the Company had a "planned scheme or design" to
retaliate against its employees for their selection of the
Union, and that the Company "embarked upon a course
of action immediately after the election to show the em-
ployees that their statutory rights were meaningless." I
find that the Company acted in bad faith, for discrimina-
tory purposes and in violation of Section 8(a)(1) and (5)
of the Act, in making changes in working conditions by
adopting the no -talking rule on June 30 and instituting on
July 18 the procedure of giving warning slips for viola-
tions of the new rule , without notifying the Union and giv-
ing it an opportunity to bargain about the changes.
The unilateral actions are not excused by the fact that
they occurred before the Union was certified. In its brief,
the Company acknowledges the Board 's ruling in Laney
& Duke Storage Warehouse Co., Inc, 151 NLRB 248,
266-267 ( 1965), that where the Union received a majori-
ty of the votes but the Company filed objections to the
election , the Company acted at its peril in unilaterally
changing working conditions before the certifications.
Upon enforcement , N.L.R.B. v. Laney & Duke Storage
Warehouse Co., Inc., 369 F.2d 859, 869 (C.A. 5),
the court specifically held:
The change was made and announced by the com-
pany after the election and before certification,
without notice to or consultation with the union. This
unilateral action was a refusal to bargain.
The Company 's brief attempts to distinguish that case by
asserting , erroneously , that " the alleged change in the no-
talking rule . . [was] announced prior to June 30, 1966,
the date of the election ." (Emphasis supplied.) On the
contrary , the Company did not decide to make the change
until the meeting with the counsel , and Mrs Bible ad-
mitted that the meeting occurred "after the election, the
day of the election ." As noted above , the same brief
elsewhere asserted . " On the day of the election
KING RADIO CORP., INC. 653
respondent's counsel advised supervision that if the ex-
cessive talking didn't improve that the established rule
should be enforced." (Emphasis supplied.) In addition to
misstating Mrs. Bible's testimony, this assertion appears
to acknowledge that no such change was "announced
prior to June 30." I find that the Company's attempt to
distinguish Laney & Duke has no merit.
I also note that the company brief, after referring to
Mrs. Bible's testimony about Counsel Haynes' recom-
mendation to enforce the rule, asserts that the counsel
then recommended that "the Company should have
something in writing .... After receiving this advice, the
Company instituted warning notices." (Emphasis sup-
plied.) The same counsel, at the beginning of the hearing
when the parties were stating their positions, gave the fol-
lowing responses:
TRIAL EXAMINER: Did the company institute a
new warning notice procedure?
MR. HAYNES: Not to my knowledge. I have no
knowledge that it is new. They had such a rule and it
was enforced during the period of time alleged.
b. Deductions for savings bonds
One of the Company's employee benefits at the time of
the election was its practice of making payroll deductions
for savings bonds upon request. However, according to
the credible testimony of Financial Vice President Car-
roll Weltsch (who impressed me as an honest, reliable
witness), he had received about 10 complaints over an 18-
month period from his payroll clerk about employee
dissatisfaction with the program. The complaints resulted
from misunderstandings and from delays and mistakes of
the clerk and the bank.
Several months before the election, Weltsch recom-
mended that the payroll deductions be discontinued, but
Vice President Harris and Production Superintendent
Bible dissented, stating: "Well, it is a nice thing. We
started with it, why not continue with it." Then in April,
when the company counsel was retained, "Mr. Haynes
told us that ... during the time that the Union was con-
ducting their organization campaign that it was not only
unwise or [sic] unlawful to make changes in anything that
concerned wages, working hours, and working condi-
tions." However, on the afternoon of June 30, im-
mediately after the election, but without notice to the
Union, Weltsch had a notice (dated June 30) posted, stat-
ing that "Effective with the close of business today, the
Company will no longer make payroll deductions for U.S.
Savings Bonds."
I find that the Company's action, canceling the payroll
deductions for about 60 bargaining unit employees im-
mediately after a majority of the employees voted for the
Union, constituted a unilateral change in working condi-
tions and an obvious reprisal, in violation of Section
8(a)(1) and (5) of the Act. I find no merit, and reject, the
Company's various defenses, that the change was "an-
nounced prior to June 30" (which is untrue), that it ap-
plied to all employees (including about 11 employees out-
side the unit who were also having the deductions made
from their paychecks), and that the change was "for ap-
parent and good reasons" and therefore could not be
"concluded to have interfered with bargaining unit em-
ployees' Section 7 rights."
c. New retirement policy
At the time of the election on June 30, the Company
had on the payroll one employee, Helen West, who had
reached her 65th birthday on or before January 1.
Nothing had been said to her about retiring or losing any
of her fringe benefits. The only written policy which the
Company had on retirement at that time was stated in the
Company's profit-sharing plan which, in a section con-
cerning withdrawals on "disability, death or retirement,"
read:
Normal Retirement Date is the last day of the plan
year in which male Participants have reached age 65,
and female Participants have reached age 60.
An optional Retirement Date may be established
as some date prior to the Normal Retirement Date
but subject to a written consent between the Ad-
ministrative Committee and the Participants in-
volved. [Emphasis supplied.]
At the time this plan went into effect, on January 1, 1963,
Mrs. West was 62 years of age (2 years older than the
"normal" retirement age for women), yet she had been al-
lowed to participate in the plan. None of the company
employees had been retired before the election.
However on July 22, 4 days after the employees
returned from the vacation shutdown, the Company
(without conferring with the Union) posted a notice enti-
tled "Retirement," which read:
It is the policy of the Company, that when an em-
ployee attains the age of 65, they shall retire from
King Radio Corporation, Inc. However, employees
that have reached 65 years of age, may be retained
by the Company on a month basis, but in no case
shall a full time employee be retained past the age of
70.
All Fringe Benefits will be discontinued at the age
of 65.
About this same time, presumably before this notice
was posted, Mrs. West (according to her undisputed
testimony) told Production Superintendent Bible that she
was considering buying a new car and commented that
she was a little afraid to do so because of her age, whereu-
pon Mrs. Bible said, "You have nothing to worry about
there ...."
Nothing was said about the new retirement notice
being applied to Mrs. West until August 10, when Mrs.
Bible mentioned it and told her that September 1 would
be her last day. At the first opportunity, Mrs. West talked
to Vice President Harris, told him she did not know
anything about "this retirement thing," and asked him to
explain it. Harris said that on September 1 (at least 8
months after her 65th birthday) she would be taken out of
the profit-sharing plan, that all her insurance and other
benefits would cease, but that "You could stay until you
were 70 on a month-to-month basis." Shortly thereafter,
Mrs. West talked to Mrs. Bible, who said she knew about
what had happened and suggested, "Why don't you just
go ahead and retire, Helen?" Mrs. West told Mrs. Bible
she guessed the only thing to do was to leave, but later
talked again to Harris, and told him, "Well, I have about
decided to stay instead of leaving the 1st of September, if
it is all right." Then she (being No. 3 or 4 on the seniority
list) asked about her seniority. Harris said he was "pretty
sure" she would lose it, but that he would call and find out
about it. (This undenied testimony indicates that the
Company had not at that time, about August 25, decided
whether to cancel an employee's seniority upon her
reaching the newly posted retirement age.) After confer-
ring with someone over the telephone, Harris told Mrs.
West that she would lose her seniority too. Because of the
history of layoffs at the Company, Mrs. West stated that
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she could not work under those conditions, without any
protection from future layoffs. She said, "If the company
wants to retire me, that is all right, they can retire me, but
I don't want the word 'quit' on my record " The conver-
sation ended, as summarized in the Company's brief, with
"Harris agreeing that as far as the records were con-
cerned, they would reflect that the Company had retired
Mrs. West." She was retired on September 2 and she
began seeking employment elsewhere (registering for
unemployment compensation)
The Company's defense, as stated by its counsel at the
hearing, was that the retirement notice "did not constitute
a change, it just constituted a reaffirmance of an
established policy " Both Harris, who gave testimony to
support this defense, and the counsel, took the position at
the hearing that the above-quoted provision on an op-
tional retirement date was deliberately included in the
profit-sharing plan to permit a later retirement date for
women. Harris testified that in 1963, when the profit-
sharing plan was being devised, he had conferred with
President King and Financial Vice President Weltsch,
and "We had to decide what would be our retirement pol-
icy, because it had to be in and part of the profit-sharing
plan." When questioned by the company counsel specifi-
cally about the optional retirement provision, Harris
testified.
A. Well, we had a discussion that there really
wasn't any reason to have people, women, females,
retire specifically at age 60, and in keeping in mind
with the paragraph in here, where we state that an
optional date may be established, we decided at that
time that we would allow them to remain until age 65,
and then remain on a month-to-month basis if they
wanted to without any fringe benefits
Later in his testimony Harris appeared to equivocate,
concerning a definite decision then on a mandatory retire-
ment policy, and stated that in the 1963 conversation,
"we felt that we left ourselves the option in the case of
females, at least, that we could move that date from age
60 up to possibly age 65 " However, he positively
testified that this conversation was "where this whole
paragraph came from." Shortly thereafter at the hearing,
while stating the Company's position, the company coun-
sel apparently realized for the first time that the optional
retirement paragraph in the profit-sharing plan referred to
retirements "prior" to the age 60, not to retirements at a
later age. Thus, the counsel stated
Now, Mr Harris testified that in 1963 some of the
directors agreed on the language to he used in the
profit plan, left an optional area with regard to the
ages of 60 or 65 for women because of the problems
they had. In cther words, we were anticipating some
problems, and that as a result, they would not require
women employees-wait a minute, I had better look
at that
Despite this belated discovery, the counsel did not retract
the erroneous position he had taken, nor disclaim any of
Harris' testimony (which I find, because of all the circum-
stances, as well as his demeanor on the stand, was
fabricated insofar as Harris asserted that the Company
had decided on the compulsory retirement policy in 1963,
requiring employees working after age 65 to work on a
month-to-month basis without any fringe benefits). A
later witness, Financial Vice President Weltsch (whom I
find to have been an honest witness), was not questioned
about the matter.
In its brief, the Company revised its position, asserting
that the language included in the profit-sharing plan "has
nothing whatsoever to do with the respondent's mandato-
ry retirement policy," and arguing that "The very fact
that Mrs. West continued to be employed by respondent
at the time she reached the age of sixty-five, supports
Harris' testimony that respondent had determined as
early as 1963 that respondent's mandatory retirement age
would be sixty-five years for female employees, and not
sixty years of age." To the contrary, Harris' testimony
about a 1963 mandatory retirement policy is clearly er-
roneous. If that policy had been established years earlier
than the July 22 notice, as contended by the Company,
the policy would have been applied to Mrs. West when
she became 65, not 8 or more months later. Nowhere
does the brief even mention the inconsistency between
the Company's position that the mandatory policy had
previously been in effect, and the undisputed fact that
Mrs West retained all her fringe benefits after reaching
65, contrary to the purported earlier policy. (Also clearly
erroneous is the argument in the brief that the other al-
leged unilateral changes and "the alleged change in the
respondent's retirement policy all were announced prior
to June 30, 1966, the date of the election.")
I find that the Company unilaterally established the
mandatory retirement policy after the election, and
retired Mrs. West pursuant to the new policy, after
threatening her with the loss of her seniority, insurance,
and other fringe benefits. By making these changes in
working conditions without consulting with the Union,
the Company violated Section 8(a)(l) and (5) of the Act.
I so find
d. Changed payday for plant c lericals
There were eight plant clerical employees included in
the bargaining unit. The Company admitted at the hearing
that after the election , it stopped paying them weekly, as
all bargaining-unit employees were paid, and began pay-
ing them biweekly . Although the Company and Union
were then in negotiations (the first week in October), the
Company did not consult with the Union about the
change , which the Company made when it placed all its
clerical employees on the biweekly payroll.
I find that this unilateral change also violated Section
8(a)(1) and ( 5) of the Act.
2 Suspension and discharge of union supporters
a. Marie Thomas
Prior to the June 30 election, there had never been an
occasion which Vice President Harris could recall, during
the life of the Company, that he had personally
discharged or required to be discharged any of the women
who assembled radios on the production lines. The hiring
and firing of these assembly line employees at both plants
were the responsibility of Production Superintendent Bi-
ble. However, on July 20, Harris instructed Mrs. Bible
to discharge a production employee, Marie Thomas, who
had openly supported the Union. This was on the third
workday after Counsel Harris had met with the company
supervision on the afternoon of June 30 (following the
Union's winning of the election), and talked with them
about having "something in writing" for the purpose of
defending possible unfair labor practice charges.
KING RADIO CORP., INC. 655
Mrs. Thomas was involved in an automobile accident
on July 8, during the vacation shutdown. Before work
resumed on Monday morning, July 18, she called in to
speak to Mrs. Bible, and Harris answered the telephone.
According to Mrs. Thomas' credited testimony, she told
Harris she had been in a car wreck 10 days earlier and
that the doctor would not let her return to work until she
saw the doctor that afternoon. Harris responded, "All
right, but keep in touch." The next morning, July 19, she
again called Harris and told him that she was sending in
the slip from the doctor, and that "I wouldn't be able to
report until the next Monday," July 25. Harris said, "All
right." Mrs. Thomas had injured her ribs in the accident,
and the doctor had insisted that she stay at home for
another week to make sure that there was no other injury.
The next day, July 20, Mrs. Bible sent her a letter, stating
"your services with King Radio Corp. have been ter-
minated. Reason- excessive absenteeism."
Harris and Mrs. Bible gave conflicting testimony. Both
appeared to be endeavoring to conceal some of the facts.
According to Mrs. Bible, on the morning Mrs. Thomas
called in and reported to Harris that "she wouldn't be
able to return to work at least that week," Harris told
Mrs. Bible about the conversation, and "he asked me
about her record, how long she had been absent, how
much she had been absent, then he went up and got her
file." However, Harris, in his testimony, did not mention
Mrs. Thomas' asking for a 1-week sick leave, and
claimed that Mrs. Bible (not he) raised the question about
Mis. Thomas' absentee record. Thus, Harris testified
that Mrs. Thomas said she would not be able to return to
work for "some period of time," and that when he told
Mrs, Bible, "she made mention that the woman had been
off quite a bit." According to Harris, when he asked her
how often, she said she could not say, "So the quickest
way to find out is to go to the payroll records to find out."
Harris testified that he personally went and checked the
payroll records, made copies of the payroll sheets for
company counsel Haynes, marked on the copies where
Mrs. Thomas had been absent previously, and by the
next morning decided to discharge her for excessive
absences. He claimed that before making his decision, he
did not consult Mrs. Bible or anybody else, and denied
having any knowledge of Mrs. Thomas' union activity or
interest. He offered no explanation why he personally in-
tervened, checked the record himself, and took over Mrs.
Bible's function of deciding upon the discharge. Admit-
tedly, Harris did not check with the doctor, either to
determine the extent of her injury, or to ascertain her
state of health for future, uninterrupted employment.
During the winter and spring, Mrs. Thomas had been
in the hospital several times with an enlarged liver, "and
they just couldn't seem to get it straightened out."
Because of this trouble, she was on sick leave for nearly
12 weeks, from November 23, 1965, through February
11, and nearly 10 weeks, from March 29 through June 3.
Before her hospitalization in November, she had worked
27 weeks that year without missing work, and had been
off a total of 26-1/2 days in the remaining 16 weeks in
1965. In 1966, between her two long sick leaves, she had
missed 2 days in over 6 weeks. During the full 4 weeks
she worked immediately before the election, she missed
a half day from work.
Mrs. Bible had never objected to giving Mrs. Thomas
any of the sick leaves, and had given her seven periodic
wage raises, increasing her to near the top wage for as-
sembly workers in her nearly 2 years of employment.
Concerning Mrs. Thomas' union activities, I credit her
testimony that several times representatives of manage-
ment were present when she was discussing the Union
with other employees. One time, about 2 weeks before
the election, she was on break, talking with several other
employees in the presence of Assistant Production Su-
perintendent Dorothy Bowlin. Mrs. Thomas and others
expressed their support of the Union. (Mrs. Bowlin was
not called to deny this testimony.) Earlier, in late March
or early April, Mrs. Thomas specifically remembered
leaving to go on break when Assistant Production Su-
perintendent Emma McPherson came up and asked for
some completed work. As she was handing the work to
Mrs. McPherson, an employee walked up and asked if
she had filled out her union card and sent it in, and she an-
swered,"Yes, I sure have." (The Company does not
directly dispute the June conversation, but points out that
the earlier conversation was not included in Mrs.
Thomas' pretrial affidavit. However, Mrs. Thomas im-
pressed me as an honest, conscientious witness, and I
credit her testimony. The Company did not call Mrs.
McPherson to testify.)
Of course it is not unlawful for a company to discharge
an employee for past absenteeism. But after considering
all the credible evidence, and all the circumstances, I am
convinced that this stated reason for the discharge was a
mere pretext, and that the discharge was a part of the
Company's postelection "crackdown" on the employees
(as contended by the General Counsel), and was in
reprisal for the employees' vote in the recent election and
to undermine the Union. I therefore find that the
discharge of Marie Thomas was discriminatory, in viola-
tion of Section 8(a)(3) and (1) of the Act.
b. Doris Owens
On Tuesday, July 19, the same day the Company was
deciding to discharge Mrs. Thomas, it gave Doris Owens
(another supporter of the Union) a written warning for
violating the no-talking rule (which, as found above, was
adopted immediately after the election for discriminatory
purposes). On Friday of the following week, July 29, the
Company gave her a second written warning for violating
the same oral rule, and Production Superintendent Bible
discharged her later in the day. Mrs. Bible, whose
motivation for the discharge is in issue, gave such
patently fabricated testimony that it is ignored in the
Company's brief.
The great conflict in the evidence concerns whether
Mrs. Owens was warned about talking only twice during
the 2 weeks before her discharge, as she claimed, or
whether she and employee Pat Davis were warned re-
peatedly. Mrs. Owens and Mrs. Davis (who quit in Au-
gust to get married) both testified that after the vacation
shutdown, they and other employees continued to talk
from time to time, that that there were only two incidents
when they were warned. The first was on Tuesday, July
19, when each of them was given a written warning
(which Mrs. Owens would not sign). The second was on
Friday morning, July 29, about 10 o'clock, when they
were discussing work (and therefore not violating the no-
talking rule, as then interpreted). Mrs. Davis spoke first,
commenting that a box supplied by the lead girl for some
faulty parts was not large enough. As Mrs. Owens. was
making a reply, Assistant Production Superintendent
Janice Cockburn (who had given them the written warn-
ing the week before) saw Mrs. Owens saying something,
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and said to her: "Doris, stop talking." First Mrs. Owens,
and later Mrs. Davis, explained that they were talking
about their work, but Mrs. Cockburn proceeded to give
Mrs. Owens a second written warning, and told Mrs.
Davis (according to Mrs. Davis' undisputed testimony)
that she was going to move Mrs. Davis so she "wouldn't
get into any trouble." She did move Mrs Davis about an
hour later without giving her a second warning notice.
About 2:15 that afternoon, Mrs Bible had Mrs. Owens
summoned to the office, told her, "Doris, you are fired,"
said it was "Because you were talking," and refused to
talk with the other employee, Mrs Davis, about what had
happened.
In sharp contrast, Mrs. Bible claimed an extreme
amount of continual talking, both before and after the
election. Although not mentioned in the company brief,
Mrs. Bible testified that Mrs. Cockburn and Production
Supervisor (then lead girl) Maxine Keeney both re-
ported to her several times before the June 30 election
that Mrs. Owens would not quit talking. In direct con-
tradiction, Mrs. Cockburn testified that she never talked
to Mrs. Bible on any occasion before the week of July 18
about anything concerning Mrs. Owens. and Mrs.
Keeney testified that she did not have any trouble with
Mrs. Owens before the election. Also not mentioned in
the company brief is Mrs. Bible's testimony that after the
vacation period, Mrs. Cockburn "kept reporting to me
about twice a day that she kept warning Doris Owens."
(Emphasis supplied.) If this were true, it would have been
incredible for the Company to have retained Mrs. Owens
for the 2-week period.
In the brief, the Company cites as true the testimony by
Mrs. Cockburn and Mrs. Keeney about the utter incor-
rigibleness on Mrs. Owens' part, without mentioning the
conflicts in their testimony. Mrs Cockburn testified that
during the first week after the vacation (the week of July
18), she and Mrs. Keeney talked about Mrs Owens "off
and on that whole week," whereas Mrs. Keeney testified
that she talked to Mrs. Cockburn only once that week
about Mrs. Owens. On direct examination, Mrs Keeney
readily testified that during the last week of Mrs. Owens'
employment (the week of July 25), "I had to caution her
every day about her excessive talking." On cross-ex-
amination, she repeatedly denied remembering how often
it was, and would not say if it was twice a day, once a day,
or once every 2 days She appeared to be reciting a
fabricated account, and to be unwilling to risk its im-
peachment by giving details. I cannot credit either her
testimony, nor that of Mrs. Cockburn, whose conflicting
testimony is discussed further below Instead, I credit the
testimony of Mrs. Owens and Mrs. Davis that neither
Mrs. Cockburn nor Mrs. Keeney gave them any verbal
or written warnings about talking, with the exception of
the written warnings on July 19 and 29. In making this
finding, I note that at one point Mrs. Cockburn testified
that she told them, "Girls, you must watch your talking "
I do not doubt that such statements were made to groups
of production girls in an effort to enforce the new no-talk-
ing rule, but 1 credit the denials that such warnings were
directed specifically to Mrs. Owens and Mrs Davis
Mrs Owens was a satisfactory worker Mrs. Davis
credibly testified that Mrs. Owens "always had her quota
up," that "a lot of times she was over her quota." and she
had very little rework to do Mrs. Owens had worked
several months for the Company before, and had been an
assembler since August 1965. She had never been given
any kind of warning before the election She went to
union meetings, openly supported the Union, and had let
Mrs. Keeney (one of the three company witnesses who
gave discredited testimony against her at the hearing)
know that she was in favor of the Union.
Having considered the timing of the discharge, the ob-
viously fabricated testimony, and all the evidence and the
circumstances, I find that Mrs Bible discharged Mrs.
Owens discriminatorily. Moreover, the "something in
writing" which the Company prepared in defense of the
case also reveals the Company's discriminatory motiva-
tion. When the Company produced at the hearing what
purported to be the first warning notice, it bore the wrong
date (July 25 instead of July 19). Earlier in the hearing,
Mrs Davis had testified that it was "during the first
week" after vacation when Mrs. Cockburn gave her the
warning slip to sign, and Mrs. Owens had testified that it
was on July 19 (the second workday after vacation) when
Mrs. Cockburn tried to get her to sign one -not the next
week, on July 25, as suggested by the company counsel
on cross-examination. When Mrs Bible was called as a
defense witness, she agreed with Mrs. Davis and Mrs.
Owens, by testifying that Mrs. Cockburn gave Mrs.
Owens the first warning notice "about the middle of Ju-
ly." (Mrs. Bible acknowledged that she played a part in
the first as well as the second written warning, testifying
that about 2 weeks before the discharge, "just a day or
two after vacation," she told Mrs. Cockburn that if warn-
ing Mrs. Owens did not do any good, to give her a written
warning.) However, instead of clearing up any doubt
about the date by producing Mrs. Davis' warning notice
(which Mrs. Davis had signed), the Company called as a
defense witness Mrs. Cockburn, who identified what pur-
ported to be Mrs. Owens' first warning notice for "talk-
ing" and verified the date on it, July 25 (4 days before the
discharge). Then it was revealed that after Mrs.
Cockburn had turned in Mrs. Owens' first warning
notice, Mrs. Bible had instructed Mrs. Cockburn to
"complete" it, saying "she needed more details on it."
These "details" which Mrs. Cockburn filled in were the
comments at the bottom, that "Doris Owens was warned
for a week about her talking, by her lead Maxine Keeney
and [Mrs. Cockburn] before disciplinary action notice
was given." This addition to the notice apparently ac-
counts for the above-mentioned conflict between the
testimony of Mrs. Keeney (who testified that she talked
to Mrs. Cockburn about Mrs. Owens only once the week
before July 25) and Mrs. Cockburn's testimony that she
and the lead girl talked about Mrs Owens "off and on
that whole week." Considering all the circumstances, and
my impression of the witnesses (Mrs. Cockburn appear-
ing unduly nervous when testifying about the notices), I
draw the inference that Mrs Bible not only told Mrs.
Cockburn to "complete" the warning notice, but to
change the date from July 19, a date which might later ap-
pear to be early for a written warning, to July 25, when
Mrs. Cockburn could falsely claim that Mrs Owens had
been warned orally all week.
Furthermore, Mrs. Cockburn admitted that when Mrs
Bible went to the old plant to discharge Mrs. Owens,
Mrs. Cockburn handed the second warning notice to
Mrs Bible, who told her it was not complete either. At
that time, the notice was blank at the bottom, and the only
offense shown at the top was "talking ... 2nd warning "
Mrs. Cockburn then proceeded to fill in the bottom part
of the form, alleging not only continued talking and a
warning by the lead girl, but that "Also complaints was
turned in to me by other employees, about her tapping her
feet on bottom of table so the other girls could not solder
KING RADIO CORP., INC.
properly." (Both Mrs. Owens and Mrs. Davis credibly
testified that they knew nothing about any foot-tapping.)
Thereafter, Mrs. Bible wrote out a termination notice, ac-
cusing Mrs. Owens of "Refusing to obey an order, poor
attitude, causing a disturbance of the line," in an apparent
effort, even before the discharge, to conceal her unlawful
motivation for the discharge.
I note that the Company's brief makes no mention of
this revision of the second warning notice after Mrs.
Bible arrived from the new plant. Instead, the brief er-
roneously states that "After completing the notice," Mrs.
Cockburn telephoned Mrs. Bible and told her about hav-
ing issued a second warning-apparently relying on a part
of the earlier contradictory testimony by Mrs. Cockburn,
and disregarding her later positive testimony related
above. I also note that at the same place in the brief, the
Company cites Mrs. Cockburn's testimony that she "ob-
served Owens talking with [Mrs. Davis] on several occa-
sions on the afternoon of July 29 ... and cautioned them
both orally"5 and that "It was not until after she had ob-
served Owens and Davis talking on three different occa-
sions on that day that she prepared the second written
warning notice," and then telephoned Mrs. Bible, report-
ing that she "had issued a second warning and that Doris
was still talking." The brief does not mention, nor attempt
to reconcile this testimony with, Mrs. Bible's testimony
that "Early in the morning [Mrs. Cockburn] called me"
at the new plant, "told me she was having trouble with
Doris again .... So I told her to give her another written
warning notice, which she did. Then after lunch she called
me" again. (I draw the inferences that this conflicting
testimony resulted from the efforts of both witnesses to
conceal what actually happened-that Mrs. Bible was
seeking an excuse to discharge Mrs. Owens, and Mrs.
Cockburn gave Mrs. Owens the second written notice
upon observing her talking, disregarding the fact that
Mrs. Owens was properly talking about her work.)
I find that Mrs. Owens' discharge violated Section
8(a)(3) and (1) of the Act.
c. Vivian Waite
The discharge of the next two union supporters, Vivian
Waite (discharged September 1) and Florence Theis
(discharged September 6, and discussed later), involves
the question of whether each of them had been granted a
30-day sick leave by Quality Assurance Director Robert
Honn a few days earlier. Honn denied it.
Vivian Waite was the clerk typist for the quality control
department. She was involved in an automobile accident
on August 10, hospitalized until August 15, thereafter
given therapy treatments for a stiff neck, and released to
return to work on September 9. She testified that when
she telephoned Honn about August 29, she told him she
was still taking therapy treatments, and he said, "I'll put
you on a 30-day leave," although she told him "I didn't
think that I would need that long." Previously, he had as-
sured her that he would keep her job open for her. Honn,
on the other hand, claimed that when she called on Au-
gust 29, he advised her that her previous 1-week exten-
sion was up that day, and "She said that she was having
some trouble, but expected that the doctor would tell her
soon when she would be released, and that was about the
5 Mrs. Cockburn's actual testimony was that she "warned the girls"
once , and later "cautioned them again ." If she had in fact verbally warned
Mrs. Owens about talking twice that day, undoubtedly she would have
657
extent of the conversation." There are also other direct
conflicts between her testimony and his testimony. In
determining who was telling the truth, I give considerable
weight to the testimony on the matter given by clerical
employee Linda Higbee, who served as a company ob-
server at the election.
Concerning the necessity for permanently replacing
Mrs. Waite, Honn testified that the temporary replace-
ment he had hired from an employment service to do Mrs.
Waite's work had proved unsatisfactory and was ter-
minated after several days, and that he had been unable
to get Mrs. Waite's work done. Mrs. Higbee, however,
testified that once the position was explained to the tem-
porary girl "she pretty well got things going as far as I
know, they were pretty well caught up," and that as she
(Mrs. Higbee) recalled, the temporary girl worked until
Wednesday, August 31 (the day before the permanent
replacement was hired and Mrs. Waite was terminated).
Mrs. Higbee, who worked at a desk directly behind Mrs.
Waite's desk, also testified that she herself, had offered
earlier to help out, but Honn indicated that it was not
necessary. Furthermore, concerning the decision to make
the discharge, Honn testified that after talking with Mrs.
Waite on August 29, he told Vice President Harris "I
need to replace her," and Harris said, "You know your
work load, you know your responsibility, do it." Mrs
Higbee, on the other hand, testified that when Honn put
an ad in the paper that week for a secretary, she asked
him why he was hunting for another secretary, and he told
her he "had orders from higher up to relieve" Mrs. Waite.
Mrs. Higbee commented she thought Mrs. Waite was a
good worker and "I didn't understand why they were re-
lieving her," and Honn replied, "well, I don't either. She
is one of the best I have."
Mrs. Higbee appeared to be quite loyal to the Com-
pany, and most reluctant to give this testimony. When
asked about her conversation with Honn, her first
response was, "Do I have to answer that?" When told
that she did, she appeared willing to tell exactly what hap-
pened, respecting her oath to tell the truth. I credit her
testimony. (The Company's brief, while attacking Mrs.
Waite's credibility, completely ignores the testimony of
Mrs. Higbee, who corroborated Mrs. Waite on a number
of points.) Honn impressed me as a person who ordinarily
would be upright and honest, but felt himself under an
obligation, because of his position, to deviate from the
truth to help defend the Company' s position . I therefore
find his testimony to be unreliable.
Based on all the evidence, I find that when Vice Pres-
ident Harris learned about Mrs. Waite's continued
absence, Harris seized upon it as a pretext for discharging
another union supporter, and directed Honn to deny hav-
ing given the 30-day leave and to discharge her, contrary
to Honn's wishes. I credit Mrs. Waite's testimony that
Honn had promised to keep her job for her, and gave her
a 30-day leave on August 29. She impressed me as an
honest, forthright witness. I also credit her testimony that
immediately after the election, she was talking with
several persons in the office, including company observer
Higbee and Terry Forester (supervisor over the test de-
partment), and said she was glad the Union won the elec-
tion . I discredit Honn's denial that he was aware of her
union support.
mentioned it in the revised second warning notice, instead of mentioning
a purported warning "by her lead."
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The written evidence which Honn prepared at the time
indicates that Honn was attempting to conceal the reason
for the discharge. The check-out sheet which he prepared
gave as the reason for termination: "Vivian was injured
and unable to return to work for a minimum period of 6
weeks. I could not hold the job open for this length of
time." When asked how he arrived at that 6-week figure,
he answered: "I am unable to answer that. I really don't
know." He admitted that Mrs. Waite did not mention 6
weeks, and that he did not contact her doctor. (She was
released for work in less than a month from the date of the
accident.)
The discriminatory motivation is also revealed by the
fact that the Company did not employ Mrs. Waite to
replace another plant clerical employee, Marion Milstead
(who worked in the same office and who quit, without giv-
ing prior notice, on September 9, the same day Mrs.
Waite was released by her doctor), or Mrs. Milstead's
replacement (who, as credibly testified to by Mrs. Hig-
bee, "lasted about a week"). I credit Mrs. Waite's
testimony that Honn told her that he would give her file
to the new personnel director, Richard Johnson, that she
later asked Honn about any openings in the office, that
Honn replied that Johnson had promised to call her and
that he (Hann) would "see what he could do," but that
Johnson never contacted her about a job. The Company's
unwillingness to employ Mrs. Waite was demonstrated
by Johnson's evasion of the question on cross-examina-
tion: "Do you have any objection to calling Mrs. Waite
back to work when a vacancy occurs?" he responded that
it was his understanding that "if Mrs. Waite was in-
terested she was to contact us about employment, and I
would consider this thing at this time."
I find that the Company discriminatorily discharged
Mrs. Waite in violation of Section 8(a)(3) and (1) of the
Act.
d. Florence Theis
According to Quality Assurance Director Robert
Honn, he did not grant Inspection Lead Girl Florence
Theis a 30-day sick leave extension on August 22, as she
claimed. Instead, he claimed that he extended her leave
on August 18 to Thursday, September 1, and when she
"failed to report back" by the second workday thereafter,
September 6 (the Tuesday after Labor Day), he "as-
sumed she did not intend to return," and approved her
termination for being absent without leave. I consider this
assertion a fabrication.
A short time before the election, a new employee in
that department, Dorothy Waters, called in after working
about 2 or 3 weeks and said she was not able to work.
After Mrs. Waters was absent several weeks, Supervisor
Bob Stewart (Honn's assistant) asked Mrs. Theis if she
would visit Mrs. Waters and attempt to get her to return
to work because she was needed. (The Company had a
continued expansion during 1966, and also an abnormally
high turnover.) Mrs. Theis reported back that Mrs.
Waters said she would try to return within a week. She
did not do so, and Stewart went out himself and talked
with her. She still did not return, and only then did the
Company discharge her for not reporting to work.
In sharp contrast here, Mrs Theis held a responsible
job (as lead girl over 10 inspection girls), had received
periodic wage increases until she was making $2.10 an
hour, and was admittedly a good employee. She missed 2
days of work after the date Honn claimed her sick leave
expired. Without making any effort to contact either her
or her family, or to check with her doctor, Honn claimed
that he discussed her absence with Stewart, that Stewart
made the decision to terminate her, and that he approved
Stewart's decision. I find that the reasons for such
manifestly disparate treatment were the fact that Mrs.
Theis had been a union observer in the election, and the
fact that the Company had adopted a policy of decimating
the ranks of the Union before negotiations began, as
discussed hereafter.
Mrs. Theis testified that she telephoned Honn on Au-
gust 8, reporting her illness and informing him that the
doctor had recommended a 2-week leave of absence (un-
til August 22). Honn asked if she could get a note from
the doctor to this effect. She said that she could, and that
"If I couldn't be back on the 22nd, that I would call
back." She mailed in the note the same day or the next.
She did not recover by then, and telephoned Honn again
on August 22, reported that she had not been released by
the doctor, and asked for a 30-day extension. After
discussing her illness, Honn approved the extension, say-
ing it "would be all right." (The Employee's Guide pro-
vided that leaves could be granted for 30 days, and ex-
tended for 30 days at a time, not to exceed a total absence
of 3 months.) Honn's testimony was that Mrs. Theis did
not call him at all. He contended that the first leave of
absence was granted "in accordance with" the doctor's
August 8 written request when he received the request
about August 10. 1 note, however, that the doctor's slip
is not in the form of a request (it reads, "This patient is
under medical and is unable to work due to illness. She
should be able to return to work 8-22-66"), and that the
leave-of-absence memorandum which the Company in-
troduced into evidence was not dated August 10 (but the
next week, August 15), and did not expire on the pre-
dicted release date, August 22 (but was unaccountably
for a 3-week leave, from Monday, August 8, through
Sunday, August 28). Whereas Honn appeared to be
fabricating his version of what happened, Mrs. Theis im-
pressed me as a conscientious and forthright witness. I
discredit Honn's version, and credit Mrs. Theis'
testimony that Honn granted her a 30-day extension on
August 22
One week later, on August 29 (as found heretofore),
Vice President Harris directed Honn to deny having
given Mrs. Waite a similar 30-day sick leave extension.
Although Honn does not admit talking to Harris about
terminating Mrs. Theis, I draw the inference from
Honn's fabrication of the circumstances surrounding her
termination, and from the unexplained variance between
Honn's testimony and Mrs. Theis' first leave-of-absence
memorandum (noted above), that Harris not only
directed Honn to deny having given Mrs. Waite's 30-day
extension, but also Mrs. Theis'. Then, not wanting the
written records to show Mrs. Theis' first leave of absence
expiring on August 22 (the day she received the 30-day
extension), Honn probably had the first memorandum
redrafted to show an unrequested 3-week leave. Next, re-
calling a second report on file from the doctor dated Au-
gust 17, predicting Mrs. Theis' release on September 1
and requesting an extension until then Honn probably
made out a second memorandum, dated it back to August
19, and extended her leave 4 days, from August 28 to
September I -without notifying her. This Would explain
why the Company was terminating Mrs. Theis for failing
to report after September 1, when she believed her leave
extended until September 22. (Mrs. Theis credibly
testified that Honn did not mention receiving the doctor's
August 17 report when she called Hann on August 22,
KING RADIO CORP., INC.
asking for the longer leave extension .) However, even as-
suming that the two leave-of-absence memorandums,
dated August 15 and 19, were made out in good faith on
those dates , I find that absent a discriminatory motiva-
tion, the Company would not have terminated this valued
employee as it did for not returning 2 workdays after the
release date predicted by the doctor over 2 weeks earlier,
without notifying her of that leave expiration date or
checking with either her or the doctor. The Company's
discriminatory motivation is also shown by Mrs. Theis'
credited testimony that after the election (in which she
acted as a union observer), Supervisor Stewart started
treating her differently and "Just didn 't have very much
to do with me , stayed away from me"- that "I don't
think I have been able to carry on a decent conversation
with Mr. Stewart since the day of the election , because
Mr. Stewart would not allow it . . . Nine times out of
ten he just walked off. He wouldn 't even give me an
answer. " (Stewart was not called to testify.)
The Company also contends that Mrs. Theis was a su-
pervisor. However, it is clear from Honn 's testimony that
she did not have any supervisory authority. Honn
testified that at the new plant where Mrs. Theis worked,
he was in charge of the quality assurance department, and
Quality Control Supervisor Stewart reported to him.
Under Stewart were three inspection lead girls, and under
them, about 28 inspectors . Explaining their respective du-
ties, Honn testified that "an inspector 's job is to make a
decision, to accept or reject the item she is inspecting in
accordance with specific standards . . . . In turn ... if the
inspector was unable to make a decision firmly based on
the standards ... the lead lady was to attempt to assist
her in making this decision . If the lead lady was unable to
interpret or help her make the decision ... the lead lady
would, in turn, get Bob Stewart , and ... if Stewart came
to no decision, I would be called in to make the decision."
The lead girls "would assign the work as it came in to
people to see we had a flow of material through inspec-
tion. ... She would confer with Bob Stewart as to the
needs for additional inspectors or less inspectors on a
specific production line she might be responsible for." At
the time in question, the Company had not published a
job description for the inspection lead girls , and the com-
pany counsel indicated that he did not know if the job
description published later changed their duties in any
way. I find that Honn and Stewart responsibly directed
and supervised the 31 inspectors and lead girls in the
quality assurance department at the new plant , that the
duties of the inspection lead girls in assigning the work
and conferring with Stewart regarding the staffing
problems on the different production lines were merely
routine, that the lead girl ' s advising with an inspector on
whether a particular item met inspection standards con-
stituted the type of advice which a more skilled and ex-
perienced employee would give to a newer employee, and
that Mrs. Theis was therefore not a supervisor as defined
in the Act.
In view of the obviously discriminatory nature of Mrs.
Theis ' discharge , I find that the discharge violated Sec-
tion 8(a)(3) and ( 1) of the Act.
e. Pat Bennett and Betty Like
On October 12, the Company suspended production
line employee Pat Bennett and Production Supervisor
Betty Like for soliciting union membership in violation of
the no-solicitation rule (which , as found heretofore, was
659
discriminatorily promulgated on June 22 during the
preelection campaign). Solicitation for various other pur-
poses had continued during working hours in working
areas at the new plant , supervisors had participated in
such solicitation , and October 22 was the first time the
violations were not overlooked and the rule was enforced.
Production Superintendent Bible herself implied com-
pany knowledge of the continued solicitation by testifying
that since June 22, she participated in one collection, and
"There has been other collections . They wasn 't supposed
to do it on company time, but I couldn 't prove they
didn 't." The Company had not investigated to find out.
On the morning of October 12, the Company learned
(in the words of Personnel Director Richard Johnson)
that "the cards were really coming in the back door and
[that] was the day for the big drive for membership." He
"expected that sometime during that day we were going
to have problems in the area of violation of a rule on sol-
iciting." That afternoon , he was notified by Mrs. Bible
that Mrs. Bennett had been observed soliciting for the
Union during working hours . Johnson and Mrs. Bible
summoned Mrs. Bennett to the conference room. Ac-
cording to Johnson , he asked her if she had been soliciting
union memberships during working hours, and she said
she did not know exactly what "soliciting " meant, but
that she had asked a girl to join the Union during working
hours. Mrs. Bennett acknowledged that she should have
known better because of the way the matter was handled:
that Mrs. Like had whispered to her, "Here is your union
card to fill out, and would you ask the rest of the girls that
started to work for the company at the same time you did
because you know them better than I?" Then , according
to Mrs. Bennett 's testimony , Johnson told her, "Well,
don't you know that companies don't want unions?"
(Although I find that Johnson was generally a trustworthy
witness, and credit most his testimony , he appeared on
the defensive , seeking to conceal his indiscretion, when
he denied making this statement . I credit Mrs. Bennett's
testimony to this effect, finding that she likewise ap-
peared to be a truthful witness. ) Thereafter she agreed to
put her statement about Mrs . Like in writing , and signed
a statement which Johnson prepared , to the effect that
Mrs. Like had given her a union card during working
hours and asked her to sign it and to solicit other girls.
Johnson then suspended Mrs. Bennett until further
notice.
Mrs. Like was called in and questioned next. Accord-
ing to Johnson 's credited testimony, he questioned her
and she at first admitted asking one girl to join the Union
during working hours. ( I discredit Mrs. Bible's testimony
that Mrs. Like first denied passing out cards on company
time. ) Thereafter as testified by Johnson , Mrs. Like
began changing her story , stating that she was on break at
the time but the girl was not, and then that the girl was on
break but she was not. Johnson further credibly testified
that Mrs. Like made other conflicting statements and
kept changing the time of the incident . (Mrs. Like had
given a different account on the stand about what had
transpired . Although she appeared to be a truthful wit-
ness when testifying about other matters, I got the im-
pression that she was fabricating her account of what hap-
pened on October 12 in the hope of regaining her job. I
therefore credit the testimony of Johnson and Mrs.
Bennett where their accounts of the incident differ from
Mrs. Like's.) Johnson concluded the conference by
telling Mrs. Like he was sure she was aware of the rule
and the reason for it, that she had violated it in a willful
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manner , "asking employees to join, interfering with their
work during working hours," and that the Company was
placing her on indefinite suspension . The Company did
not make any further investigation of the matter. No
other violations were reported.
Thereafter, according to Johnson's testimony, he
discussed the matter with Company Counsel Haynes,
and Vice Presidents Weltsch and Harris, giving his
recommendation that "it is two entirely different situa-
tions. . . [O]n the one hand we had an employee [Mrs.
Bennett ] that did violate a rule, but was certainly honest
and straightforward about it, and . she wasn't fully
aware of the seriousness of the situation. On the other
hand ... Betty Like was far less than completely truthful
. was a supervisory person, and indicated a lack of
judgment, and . . because she seemed to he more instru-
mental in the situation than Pat Bennett did, I recommend
her termination ." On October 18, the Company wrote
letters, placing Mrs. Bennett on a 2-week disciplinary
suspension, and discharged Mrs Like for "misconduct."
Mrs. Bennett did not return to work after the suspension.
One day earlier, on October 17, the Company posted
a "clarification" of the no-solicitation rule "and of the
laws governing union membership," stating that "Em-
ployees who do interfere with production and conduct
such activities during work hours will be subject to
disciplinary action," but that "We have no objection to
those activities during non-work hours and in non-work
areas, providing such activities do not interfere with
production " The notice also stated that the employees'
right to join or refrain from joining a union was protected
by law and "The Company takes no position in the matter
one way or the other." Although the evidence clearly
shows that this "clarification" did nothing to stop the con-
tinuing solicitation on company time for nonunion pur-
poses, and that it was posted in response to the Union's
drive for membership after bargaining began, the General
Counsel did not allege it as a separate violation, and I do
not rule on its legality. However, I do find that its posting,
one day before the disciplinary action was taken against
the two suspended persons, demonstrated to the plant
employees why Mrs. Bennett and Mrs. Like had been
suspended even though other solicitation had been con-
doned or ignored
At the time of her suspension, Mrs Bennett had been
employed less than 3 weeks. Johnson admitted that she
was a good worker, "As far as I know," and Mrs. Bible
told Mrs. Bennett on October 12 at the time of her
suspension that she had done a good job at the Company.
From the credited evidence and all the circumstances,
I find that the real reason for Mrs Bennett 's 2-week
suspension, as well as Mrs Like's discharge, was not
their mere violation of the no-solicitation rule (which was
not otherwise being enforced), but their violation of the
rule in a particular way- soliciting membership in the
Union. I find that Mrs Bennett's suspension was dis-
criminatorily motivated, to discourage membership in the
Union, in violation of Section 8(a)(3) and (1) of the Act.
Mrs Like, however, was then a supervisor. At the time
of the election, the parties were in dispute whether she
and the 12 other production lead girls did in fact have su-
pervisory authority The "lead girl" job description,
adopted years before, was in large part outdated. The Re-
gional Director, finding that the record in the representa-
tion case failed to disclose that the lead girls possessed or
exercised any of the powers of a supervisor, but noting
the high ratio of employees to admitted supervisors, held
in his Decision and Direction of Election, in Case
17-RC-5060, that the production lead girls could vote
subject to challenge. Since the election, an assistant
production superintendent (then called an assistant
production supervisor under Production Supervisor Bi-
ble) told Mrs Like about 2 months before her discharge
that the "assistant production supervisors" were no
longer responsible for the girls talking, but that the
production lead girls were fully responsible. Thereafter,
the Company reclassified the production lead girls, mak-
ing them production supervisors, issuing them superviso-
ry badges to wear, and conducting a supervisory training
program. Previously there was a serious question (as in-
dicated by credited testimony herein) concerning whether
the Company in fact permitted the lead girls to exercise
any supervisory authority, and as already mentioned,
Mrs. Bible revealed that the Company did not regard
them to be a part of supervision (by excluding them when
Counsel Haynes met with "everyone in supervision" on
the afternoon after the election). However, on October
12, the production supervisors were supervisors as
defined in the Act. I so ruled at the hearing.
Despite Mrs. Like's supervisory status at the time, the
General Counsel contends in his brief that she "was
discharged not for engaging in union activities but for
violating a no-solicitation rule which the Respondent dis-
criminatorily promulgated and published," and that "the
record clearly demonstrates that the net effect of Mrs.
Like's discharge was to cause non-supervisory em-
ployees to fear that the Respondent would take the same
action against them if they violated this unlawful no-so-
licitation rule. Thus Mrs. Like's discharge by the Respond-
ent must be found to have been in violation of Section
8(a)(1) of the Act." I do not agree. I find that the Com-
pany had promulgated among the employees the super-
visory status of the production supervisor, and that its
discharge of Mrs. Like as a supervisor did not tend to in-
terfere with the employees' legitimate union activities.
I therefore find that the discharge of Production Super-
visor Like did not violate Section 8(a)(1) of the Act.
3. Delay in bargaining
On June 30 the Union won the election by a vote,
among the unchallenged ballots, of 182 to 114. The Re-
gional Director overruled the Company's objections and
certified the Union on August 19. Thereafter, the Com-
pany filed a request for review, which the Board denied
on September 21. The Company then recognized the
Union as the certified bargaining representative of the
unit employees , and entered into negotiations with the
Union.
On August 4 and 30, the Union wrote the Company
letters, seeking grievance meetings to discuss the alleged
discriminatory discharge of employees Doris Owens and
Marie Thomas. On August 25, the Union made a written
request for certain payroll and other information to
prepare for negotiations . The Company answered the
requests for grievance meetings by writing that the
Union's letters had been forwarded to Company Counsel
Haynes, and ignored the request for bargaining informa-
tion until September 23, when Haynes answered, "I now
have authority to meet with you." Negotiations began on
October 4, and the Company thereafter furnished the
Union information on 8 of the I I items requested in the
August 25 letter, and promised to furnish additional in-
formation when compiled.
KING RADIO CORP., INC.
The Company denies that it was obligated to bargain
with the Union until the Board ruled on its request for
review. I assume , without deciding, that an employer who
is acting in good faith may delay meeting with a union,
furnishing information, and bargaining until the certifica-
tion is issued and until any request for review is denied.
Here, however, the General Counsel had made out a
strong case of bad faith
Immediately after the election on the afternoon of June
30, when the company counsel met with the supervision,
the Company began making unilateral changes in working
conditions. That afternoon, it canceled its program of
making payroll deductions for savings bonds, and promul-
gated a new, discriminatorily motivated no-talking rule.
Thereafter it adopted various pretexts for discriminatori-
ly discharging union supporters, and gave no response to
the Union's repeated requests for grievance meetings to
discuss this allegedly discriminatory action It announced
a new retirement policy, and stripped an employee of her
seniority and fringe benefits, thereby inducing her in the
absence of union representation to accept retirement. It
ignored the fact that eight plant clerical employees were
part of the bargaining unit , and changed their payday from
the weekly basis for unit employees to the biweekly basis
for excluded employees
After carefully evaluating all the evidence, and con-
sidering all the circumstances (including the patent fabri-
cations in the testimony of Harris, Mrs. Bible, and Honn
at the hearing), I find that the Company decided at the
above-mentioned June 30 meeting of supervision to at-
tempt to overcome the election defeat by (a) "cracking
down" on the employees and changing working condi-
tions "to show the employees that their statutory rights
were meaningless," as contended by the General Coun-
sel, (b) discouraging future support of the Union through
a discriminatory enforcement of the no-solicitation and
no-talking rules, and (c ) utilizing the expected delays in
the representation proceeding to find pretexts for deci-
mating the ranks of the Union, thereby undermining the
Union and weakening its bargaining position In making
these findings, I rely in part on the notice the Company
mailed its employees early in September, predicting that
"It may be a matter of several months before we receive
any word from the N L.R.B." on the Company's request
for review, and stating that the Company was not legally
obligated to negotiate in the meantime. This was sent in
the context of four discriminatory discharges of union
supporters, the failure of the Company to respond to the
Union's requests for grievance meetings, and the an-
nouncement of the new retirement policy, resulting in the
retirement of one employee already. I also rely in part on
the conduct of the Company on October 12, when the
Union inaugurated a campaign to secure memberships
(after the Company started negotiating on October 4).
Although solicitations for various purposes had con-
tinued on company time for months, the Company im-
mediately suspended a new employee, without prior
warning, when she admitted soliciting one membership
during working hours.
I therefore find that the Company acted in bad faith, to
undermine the Union, when it refused until after Sep-
tember 21 to discuss the discriminatory discharges and to
supply the information requested for bargaining, in viola-
tion of Section 8(a)(5) and (1).
It is noted that the Company contends that a deter-
mination should be made in this proceeding whether the
certification was valid and whether the Company is
661
legally obligated to recognize the Union. Those may have
been issues if the Company had refused to bargain after
the denial of the request for review, and then had attacked
the certification. However, the Company clearly waived
those issues when, after September 21, it honored the
certification, recognized the Union, and began bargain-
ing. Such a waiver would obviously follow, as recognized
in N.L.R.B. v. Blades Manufacturing Corporation, 344
F.2d 998, 1005 (C.A. 5) The court, indicating that
there the employer was exercising its only means to ob-
tain review of the question of validity of the Union's cer-
tification, stated: "To have bargained collectively with
the employees' representative would have prejudiced
litigation of the Company's contrary position." Here,
having waived any challenges it may have had to the Au-
gust 19 certification, the Company is bound to honor the
certification, in a unit of "all production and maintenance
employees at the 400 North Rogers Road and 139 South
Brockway, Olathe, Kansas, plants of King Radio Cor-
poration, Inc., including plant-clerical employees, but ex-
cluding the office-clerical employees, accounting depart-
ment employees, research and development employees,
and professional employees, guards, and supervisors
within the meaning of the Act."
I also note that in his brief, the General Counsel does
not challenge the Trial Examiner' s dismissal at the hear-
ing of the allegation of additional violations in the com-
plaint.
CONCLUSIONS OF LAW
1. By discharging Marie Thomas on July 20, Doris
Owens on July 29, Vivian Waite on September 1, and
Florence Theis on September 6, because of their union
activities, the Company engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(3)
and (1) and Section 2(6) and (7) of the Act.
2. By suspending Pat Bennett on October 12, for a 2-
week period, for violating the discriminatory no-solicita-
tion rule, the Company violated Section 8(a)(3) and (1) of
the Act.
3. The Company did not violate the Act by discharg-
ing Production Supervisor Betty Like for violating the no-
solicitation rule on October 12.
4. By promulgating an invalid no-solicitation rule and
engaging in coercive interrogation before the election,
and by making unilateral changes in working conditions
and delaying bargaining after the election to undermine
the Union, the Company violated Section 8(a)(1) and (5)
of the Act.
5. 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-clerical employees, but excluding the of-
fice-clerical employees, accounting department em-
ployees, research and development employees, and
professional employees, guards, and supervisors within
the meaning of the Act, constitute an appropriate bargain-
ing unit.
THE REMEDY
Having found that the Respondent has committed cer-
tain unfair labor practices, I shall recommend that it be
ordered to cease and desist from such conduct, and to
take certain affirmative action, which I find necessary to
308-926 0-70-43
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remedy and to remove the effect of the unfair labor prac-
tices and to effectuate the policies of the Act
The Respondent having discriminatorily discharged
Marie Thomas, Doris Owens, Vivian Waite, and
Florence Theis, I shall recommend that it be ordered to
offer them reinstatement with backpay computed in the
manner set forth in F. W. Woolworth Company, 90
NLRB 289, with interest at 6 percent per annum, as pro-
vided in Isis Plumbing & Heating Co., 138 NLRB 716.
Because of Respondent's unlawful campaign to decimate
the ranks of the Union after the election in order to
weaken the Union's bargaining position, I shall not only
recommend that the Respondent be ordered to make Pat
Bennett whole for the loss of pay suffered by reason of
her discriminatory 2-week suspension (plus 6 percent in-
terest), but also that the Respondent be ordered to rein-
state her. Assuming to be true Respondent's contention
(not supported by evidence) that it and the Union had
agreed in negotiations before the hearing that the retire-
ment policy would continue, such an agreement on the
matter would have been reached following Respondent's
campaign to undermine the Union, and months after the
mandatory policy had become an accomplished fact and
employee Helen West had been induced to accept retire-
ment by depriving her of all fringe benefits and her
seniority. In order to remove the coercive effects of
Respondent's unlawful conduct, I shall recommend that
the Respondent be ordered to rescind the mandatory
retirement policy and to offer Mrs West reinstatement
with backpay computed in the manner described above.
In view of Respondent's bad faith in delaying bargain-
ing, and its unilateral and discriminatory actions after the
election, designed to undermine the Union, I find that a
further remedy is necessary to dissipate the effect of this
unlawful conduct on the bargaining. In order to permit a
full year of untrammeled bargaining, I shall recommend
that the Respondent be ordered, for 1 year following
Respondent's posting of the attached notice, to regard the
Union as if the initial year of the certification has not ex-
pired.
Because of the serious nature of the unfair labor prac-
tices which the Respondent has committed, showing a
disregard for the policies of the Act, I shall recommend
that it be ordered to cease and desist from in any manner
infringing on the rights guaranteed to its employees by
Section 7 of the Act.
Accordingly, on the basis of the foregoing findings and
conclusions, and on the entire record, I recommend, pur-
suant to Section 10(c) of the Act, issuance of the follow-
ing:
ORDER
Respondent , King Radio Corporation , Inc , its officers,
agents, successors , and assigns , shall-
1. Cease and desist from:
(a) Attempting to undermine Communications Work-
ers of America , AFL-CIO, by delaying bargaining in
bad faith , discriminating against union supporters, and
making unilateral changes in working conditions.
(b) Discharging , suspending , or otherwise discriminat-
ing against any employee because of his membership in,
or his activities on behalf of, the above-named Union or
any other labor organization.
(c) Promulgating, maintaining, or enforcing a rule
prohibiting employees from soliciting on behalf of the
Union while permitting solicitation for other purposes.
(d) Maintaining or enforcing its discriminatorily
motivated no-talking and warning-notice rules, without
prejudice to its right to bargain with the Union concerning
valid, nondiscriminatory rules.
(e) Coercively interrogating employees concerning
their union sympathies and union activities.
(f) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Marie Thomas, Doris Owens, Vivian Waite,
Florence Theis, Pat Bennett, and Helen West full rein-
statement to their former or substantially equivalent posi-
tions, without prejudice to their seniority, their status in
the profit-sharing plan, and other rights and privileges,
and make them whole in the manner set forth in the sec-
tion of the Trial Examiner's Decision entitled "The
Remedy."
(b) Rescind its mandatory retirement policy, requiring
employees to retire at age 65 or lose their seniority and
fringe benefits.
(c) Expunge from its personnel records all warning
notices issued pursuant to its discriminatory warning-
notice rule.
(d) Restore its program of making payroll deductions
for savings bonds upon the request of bargaining unit em-
ployees.
(e) Upon request, bargain in good faith with the Union
as the exclusive representative of the employees in the
appropriate unit and, if an understanding is reached,
reduce it to writing and sign it. For 1 year following the
posting of the attached notice marked "Appendix," re-
gard the Union as if the initial year of the certification has
not expired.
(f) Notify the above-named 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 Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
(g) 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 and reports, and all records
necessary to analyze the amount of backpay due under
the terms of this Order.
(h) Post at its plants in Olathe, Kansas, copies of the
attached notice marked "Appendix."e Copies of such
notice, on forms provided by the Regional Director for
Region 17, aftei being duly signed by an authorized
representative of the Respondent, shall be posted by the
Respondent immediately upon receipt thereof, and be
maintained for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices are
^ 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"
KING RADIO CORP., INC.
not altered, defaced, or covered by any other material.
(i) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of the receipt of this
Decision, what steps the Respondent had taken to
comply herewith.7
IT IS ALSO ORDERED that the complaint be dismissed in-
sofar as it alleges violations of the Act not specifically
found herein.
7 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 17, in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL OFFER Marie Thomas, Doris Owens,
Vivian Waite, Florence Theis, Pat Bennett, and
Helen West reinstatement, and pay them for earnings
they have lost as a result of our unlawful actions
against them.
WE WILL NOT try to undermine Communications
Workers of America, AFL-CIO, by delaying bar-
gaining , discriminating against union supporters, and
unlawfully changing working conditions without bar-
gaining.
WE WILL NOT enforce any rule against soliciting
for the Union while permitting solicitations for other
purposes.
WE WILL NOT enforce the no-talking rule we un-
lawfully adopted after the election without bargain-
ing with the Union.
WE WILL cancel all written warnings given under
the warning-notice rule we adopted after the election
without bargaining.
WE WILL withdraw the policy we adopted after
the election without bargaining, requiring employees
to retire at age 65 or lose their seniority and fringe
benefits.
663
WE WILL restore our program of making payroll
deductions for savings bonds.
WE WILL, NOT coercively interrogate employees
about their union sympathies and union activities.
WE WILL NOT discharge, suspend, or discriminate
against any employee for supporting Communica-
tions Workers of America, AFL-CIO, or any other
union.
WE WILL NOT interfere with our employees' union
activities.
WE WILL bargain in good faith with the Union, as
if the first year of the certification were now
beginning, and reduce to writing and sign any agree-
ment reached, covering:
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-clerical
employees, but excluding the office-clerical em-
ployees, accounting department employees,
research and development employees, and
professional employees, guards, and supervisors
within the meaning of the Act.
Dated By
KING RADIO CORPORATION,
INC.
(Employer)
(Representative) (Title)
NOTE: Notify the above-named 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 consecutive
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, Room 610,
Federal Building, 601 E. 12th Street, Kansas City, Mis-
souri 64106, Telephone 374-5181.