Petition — King Radio Corp. v. National Labor Relations Board

In the Supreme Court of the United States

OCTOBER TERM, 1974

74-1615

KING RADIO CORPORATION, INC..,

Petitioner,

VS.

NATIONAL LABOR RELATIONS BOARD.

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT AND APPENDIX

WILLIAM G. HAYNES

O. B. Ermson

1300 Merchants National Bank Bldg.

Topeka, Kansas 66612

Counsel for Petitioner

FE. L. Menomnnant, Inc., 924 Cherry Street. Kansas City, Mo. #4108, 421-8080

Opinions Below ....................-

ESS I a

ESET I RE I a a

a

Reasons for Granting the Writ -............0....ccccccseseseseeeeeeeees

I. Appropriate Test to Be Applied at Time Recog-

I I iciicricsnncetinnsinccscestenesnasletbarblecnenicaes

II. Both the Board and Court of Appeals Failed to

Apply the Gissel Standards ..........0....00..0..cccceeeeee

III. Turnover and Expansion of Bargaining Unit Are

Sufficient Evidence to Cast Doubt on the

Union’s Continuing Majority Status ...0000000000000......

IID scnctnicrenatnecnercsserentstienicaneiesenitatisiatasiiiinitbatiet deadiaceainictiniictaasiiis

Appendix A—Opinien of the United States Court of

Appeals, Tenth Circuit, dated February 12, 1975 ........

Appendix B—Judgment of the United States Court

of Appeals, Tenth Circuit, dated March 5, 1975 ........

Appendix C—Decision and Order of the National Labor

Relations Board issued January 22, 1974, and De-

cision of the Administrative Law Judge issued April

UA, SUPITT siscssciesiccusiincitineciesrinseaabadiiinehbhiaiasahtin scales tia

Appendix D—Relevant Provisions of the National

ee NI IT is icensscnccecciescccntseebascinlatinusdiidantaemamiddasianint

II

Citations

CASES

Allied Industrial Workers Local 289 vy. NLRB, 476 F.2d

I Ue I 12

Automated Business Systems, 205 NLRB 35, 84 LRRM

Ss I se - 16

Automated Business Systems v. NLRB, 497 F.2d 262

UN NT aca i 4,11, 12, 18,19

Bally Case and Cooler v. NLRB, 416 F.2d 902, 906 (6th

Cir. 1969), cert. denied 399 U.S. 910, 90 S.Ct. 2201

RESALES IES SURE! CEA Se i 12

Brooks v. National Labor Relations Board, 348 U.S. 96,

104, 75 S.Ct. 176, 99 L.Ed. 125 (1954) ooo. 10

C&C Plywood Corporation and Veneers, Inc., 163 NLRB

I INTE heithieadiscbieiesinntlcuailiiiccat eshte 8

Capital Aviation, Inc. v. NLRB, 355 F.2d 875 (7th Cir.

SUITED. sesdosaiansesouinabisialansenisnadboemlnebiabanscedassaciba ciubelt-eitataceas dessa, 19

Celanese Corporation of America, 95 NLRB 664 (1951) 12

Ingress Plastene, Inc. v. NLRB, 430 F.2d 542 (7th Cir.

1970)

Laystrom Mfg. Co., 151 NLRB 144, enf. denied 359 F.2d

OE I I acca ca 12

Lodges 1746 and 743, International Association of Ma-

chinists and Aerospace Workers, AFL-CIO, 416 F.2d

809, 811-813 (D.C. Cir. 1969), cert. denied 396 U.S.

1058, 90 S.Ct. 751, 24 L.Ed. 2d 752 (1970) ................ 11-12

Miami Coca-Cola Bottling Co. d/b/a Key West Coca-

Cola Bottling Co., 150 NLRB 892 (1965) .................... 8

National Cash Register v. National Labor Relations

Board, 494 F.2d 189 (8th Cir. 1974) 0 19

NLRB vy. Dayton Motels, 474 F.2d 328 (6th Cir. 1973) 11

NLRB v. Frick Co., 423 F.2d 1327 (3d Cir. 1970) ........ 12

ae

Il

NLRB vy. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918,

STON I I iia 4,18

NLRB v. Gulfmont, 362 F.2d 588, 589 (5th Cir. 1966) .... 12

NLRB vy. H.P. Wasson and Company, 422 F.2d 558 (7th

RLS AS PM a RE RS ee TPE 19

NLRB v. Laystrom Mfg. Co., 359 F.2d 799 (7th Cir.

1966), den. enf. of 151 NLRB No. 144 200... 19

NLRB vy. Leatherwood Drilling Co., Nos. 74-2415 and

74-2421 (5th Cir. May 27, 1975), 89 LRRM 2460 ........ 12

NLRB v. Little Rock Downtowner, Inc., 414 F.2d 1084,

I 10, 12, 19

NLRB v. Rish Equipment Co., 407 F.2d 1098, 1101 (4th

SIG” STII sasssicshdeseihhbginilestbevitbieelhdidaastngi a i 10

NLRB vy. Tesoro Petroleum Corp., 431 F.2d 95, 97 (9th

SO I aa ee 12

Orion Corporation, 210 NLRB 371, 86 LRRM 1193, 1197

SEITEN: csachcaisaceseitiencenebbnitaabaniniamieicacieaiidentteeirdegd cake ae eee 14

Orion Corporation v. NLRB, No. 74-1432 (7th Cir.

April 28, 1975), 89 LRRM 2135, 2137 oe .. 13

Stoner Rubber Company, 123 NLRB 1440 (1959) ........ 8, 11

Taft Broadcasting, WDAF-TV, AM-FM, 201 NLRB No.

EE MINI sicenticatniddaniinbdedienduapiadeiebicaeddaiummunnciaamadaambicentels Lan 8

Terrell Machine Company v. NLRB, 427 F.2d 1088, 1090

(4th Cir. 1970), cert. denied 398 U.S. 929 (1970) .... 12

STATUTES

Se ies ME CIT ciccetccccccnctsertecesicmserenetnreonenissemasennloee 2

Labor Management Relations Act

iy 7s sacessienegipisidesitecigipinamaeiaapibammiimiapadianiadiasscesieldatg aati al 20

National Labor Relations Act, as amended

SPINE - sce sobaeiiskonubaabiedatsaaeeausbeitaniaipimeniimein initia thie. o 2,5, 6

SRE RARE a Tata nen am eR one eet ae 2, 4, 5, 6, 11, 12

SI coisietieamseesiedesibaigaivetieoneinmceiiatciniahas iii ct alas 2,11, 12

3

In the Supreme Court of the United States

OCTOBER TERM, 1974

A

KING RADIO CORPORATION, INC.,

Petitioner,

vs.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT AND APPENDIX

Petitioner, King Radio Corporation, Inc., petitions for

a Writ of Certiorari to review the judgment and decision of

the United States Court of Appeals for the Tenth Circuit

entered in this case on February 24, 1975, enforcing an

order of the National Labor Relations Board; petition for

rehearing denied on March 24, 1975.

OPINIONS BELOW

The opinion of the United States Court of Appeals 74-

1421, was issued February 12, 1975, 510 F.2d 1154, 88

LRRM!? 2819. The Court of Appeals enforced the decision

of the National Labor Relations Board reported at 202

NLRB No. 82. Both the opinions of the National Labor

Relations Board and the Court of Appeals are printed

herewith at Appendix A and C (pp. Al-A6, A9-A33).

1. LRRM refers to Labor Relations Reference Manual, Bu-

reau of National Affairs.

a Ss alec

2

JURISDICTION

Jurisdiction to review by Writ of Certiorari the judg-

ment and decision of the United States Court of Appeals

for the Tenth Circuit, entered March 5, 1975 (App. pp.

Al-A8), petition for rehearing denied March 24, 1975, is

involved under the provisions of 28 U.S.C. Section 1254(1)

and Section 10(e) of the National Labor Relations Act, as

amended (61 Stat. 136, 73 Stat. 519, 29 U.S.C. Sec. 151,

et seq.).

QUESTION PRESENTED

The question presented is whether an employer vio-

lated the good faith bargaining provisions of Section 8(a)

(5), (1) and (d) of the National Labor Relations Act by

withdrawal of recognition of a union certified as a collec-

tive bargaining representative more than six years previ-

ously in reliance upon considerable turnover and a sub-

stantial increase in the number of bargaining unit per-

sonnel.

STATUTE INVOLVED

The relevant provisions of the National Labor Rela-

tions Act, as amended (61 Stat. 136, 73 Stat. 519, 29 U.S.C.

Sec. 151, et seq.) which are involved in this case are set

forth in Appendix pages A69-A72. For the convenience of

the Court, however, the pertinent provisions of Section

8(d) of the National Labor Relations Act are set forth

immediately below:

“(d) For the purposes of this section, to bargain col-

lectively is the performance of the mutual obligation

of the employer and the representative of the em-

ployees to meet at reasonable times and confer in

‘

———————e UL LCL

3

good faith with respect to wages, hours, and other

terms and conditions of employment, or the negotiation

of an agreement, or any question arising thereunder,

and the execution of a written contract incorporating

any agreement reached if requested by either party,

but such obligation does not compel either party to

agree to a proposal or require the making of a con-

cession... .”

STATEMENT OF THE CASE

The judgment and decision, of which review by this

Court is now sought, enforced the order of the National

Labor Relations Board requiring the petitioner to cease

and desist from:

(a) Failing and refusing to bargain collectively con-

cerning rates of pay, wages, hours of employment, or other

terms and conditions of employment with Communication

Workers of America, AFL-CIO, as the exclusive repre-

sentative of its employees. . .

(b) In any like or related manner interfering with,

restraining, or coercing employees in the exercise of their

rights under Section 7 of the Act;

Take the following affirmative actions necessary to

effectuate the policies of. the Act:

(a) Upon request, bargain collectively with the above

named labor organization as the exclusive representative

of the employees in the above described appropriate unit

with respect to rates of pay, wages, hours of employment,

and other terms and conditions of employment, and, if an

understanding is reached, embody such understanding in

a written, signed agreement.

4

King Radio Corporation, Inc. (hereinafter referred to

as the “Company” or “Petitioner”) contends that evidence

presented establishing turnover of employees and expan-

sion of the bargaining unit was sufficient to cast doubt on

the Communication Workers’ (hereinafter referred to as

the “Union’’) continued majority status and since the Gen-

eral Counsel failed to come forward with evidence to prove

majority status on the critical date, the Company did not

violate Section 8(a) (5) of the Act when it withdrew rec-

ognition and declined to continue to negotiate with the

Union. Furthermore, that the Board and the Court of

Appeals, Tenth Circuit (hereinafter referred to as the

“Court of Appeals”) have ordered the Company to bargain

with the Union without finding that the Company engaged

in “outrageous” and “pervasive” unfair labor practices; or

less pervasive practices which nonetheless still have the

tendency to undermine majority strength and impede the

election processes (Automated Business Systems v. NLRB,

497 F.2d 262 (6th Cir. 1974) and NLRB v. Gissel Packing

Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed. 2d 547 (1969)).

This case initially arose from negotiations between the

Company and the Union for a collective bargaining agree-

ment after twenty or more negotiation periods during the

years 1968, 1969, 1970, 1971 and 1972 (LJD, App. A63-

A64).*

At the time of the election, resulting in the Board’s

certification, there were 343 eligible voters in the unit;

182 votes were cast for the Union and 114 against it with

three void ballots and 26 challenged ballots (LJD, App.

A58). Between the period of 1967 and August 9, 1972,

the date recognition was withdrawn by the Company, 4,214

employees were employed and 3,423 employees were termi-

nated. There were 876 hourly employees employed within

2. References to LJD refer to the Administrative Law Judges’

Decision, printed in the Appendix hereto at pages A33-A68.

_

5

the bargaining unit on the date recognition was with-

drawn. Twenty-four of the 876 hourly employees em-

ployed at that time were employed by the Company during

the June, 1966 election (LJD, App. A58-A59). The last

bargaining session between the parties was held on Febru-

ary 18, 1972. Wages, holidays and dues collections were

still in disagreement at the conclusion of this meeting

(LJD, App. A59-A60). Thereafter Paul Scales, a new staff

representative for the Union, was designated in March of

1972, as the Union’s negotiator with the Company (LJD,

App. A49). After attempting to reach the Company’s at-

torney on several different occasions, the Union repre-

sentative finally spoke with the Company’s attorney on

May 22, 1972 (LJD, App. A49). The Union representa-

tive confirmed the conversation by letter which concluded,

“I will keep my calendar as open as possible on the as-

sumption we will resume talks soon after June 20, 1972.”

(LJD, App. A49-A50). The Union representative wrote a

letter dated July 17, 1972 informing the Company that he

would be available on July 25, 27, 28, August 1 and 3, 1972,

to resume negotiations. After not receiving a response to

this letter, the Union representative wrote the Company’s

attorney again on July 27, 1972.

On August 3, 1972, the Union filed an unfair labor

practice charge against the Company claiming a violation

of Section 8(a)(1) and (5) of the Labor Management

Relations Act.

On August 11, 1972, the Company’s attorney wrote the

Union representative a letter in which he informed him

that he had been away from his office for the past two

weeks; that the Union and the Company had been engaged

in negotiations for over five years, which included a series

of meetings; the last meeting held had resulted in a num-

ber of agreements on various subjects, but that disagree-

6

ments still remained; that the Company had not changed

its position on the subjects in disagreement and had not

been informed that the Union had changed its position on

them; that in the interim the Company had experienced

an almost one hundred percent turnover in bargaining

unit employees; that less than twenty percent of the em-

ployees employed with the Company that were employed

in June, 1966, when the NLRB election was conducted re-

mained employed and that inasmuch as the number of

employees in the bargaining unit had more than doubled,

the Company believed that the Union’s majority status had

been affected (LJD, App. A50-A52).

On August 29, 1972, the Union representative re-

sponded to the Company’s attorney’s letter taking issue

only with the Company’s refusal to return to the bargain-

ing table but without indicating a change of position on the

subjects still in disagreement during the last negotiation

session in February of 1972 and without asserting a con-

tinuing majority status (LJD, App. A52-A53).

During this same period of time, the Regional Office

of the National Labor Relations Board was in the process

of computing back pay resulting from a previous decision

of the Board enforced by the Court of Appeals that the

Company had violated Section 8(a)(1) and (5) of the

Act in cases 166 NLRB 180 and 166 NLRB 649. These

Board decisions were enforced by the United States Court

of Appeals, Tenth Circuit, on July 22, 1968 (398 F.2d 14).

Thereafter, the Board issued its decision in 172 NLRB 1051

on July 9, 1968, finding that Respondent had violated Sec-

tion 8(a)(5) of the Act. This decision was enforced in

part by the Tenth Circuit Court of Appeals on September

17, 1969 (416 F.2d 596), and certiorari was denied by the

United States Supreme Court on April 27, 1970 (397 US.

1007).

7

The Law Judge herein concluded that the Company

“had sufficient objective grounds for believing that a

majority of the employees no longer desired Union repre-

sentation and that since the General Counsel failed to

come forward with the evidence that the Union in fact did

represent a majority of the employees in the unit the Com-

pany was not barred from questioning the Union’s majority

status because of unremedied unfair labor practices as it

was undisputed that the Company similarly posted the

notice required by the Board’s 1968 order and thereafter

met with the Union for the purpose of negotiating a col-

lective bargaining agreement on some twenty or more occa-

sions during 1968, 1969, 1970, 1971 and 1972.” The Law

Judge further held, “The only subject remaining unre-

solved in the Board’s third unfair labor practice order is

computation of back pay and, in view of the joint motion

of the parties for clarification of the Board’s order and the

Board’s order of clarification which issued on October 7,

1971, I do not regard the alleged back pay obligation as

unremedied unfair labor practices sutficient to bar the em-

ployer from asserting a good faith doubt of the Union’s

continued majority status. Some five years have elapsed

since Respondent committed unfair labor practices; Re-

spondent has posted the required notices and complied in

other respects; many months of bargaining have since

taken place; no independent violations have been alleged

and proven.” (LJD, App. A63-A64).

In reaching the conclusion that the Company presented

sufficient evidence to cast doubt on the Union’s continued

majority status, the Law Judge stated:

“In sum, the evidence of record establishes that from

the date -f the election to August 1972, when recogni-

tion was withdrawn, the size of the unit increased from

343 to 876; there was a turnover of some 4,000 em-

8

ployees; and only 22 of the employees who were em-

ployed on the date of the election remained employed

during August 1972. And, these facts must be con-

sidered in the context of an Employer who, as found

herein, has engaged in no subsequent unfair practices

and has been engaged in good faith bargaining with

the Union for some five years to negotiate a contract.”

(LJD, App. A65).

The Law Judge reached this conclusion in reliance

upon the Board’s decision in Stoner Rubber Company, 123

NLRB 1440 (1959) and Taft Broadcasting, WDAF-TV, AM-

FM, 201 NLRB No. 113 (1973).

Thereafter, the Board reversed the Administrative

Law Judge stating, “Because the Union maintained the

majority status at the time of the certification, it must be

presumed that it still maintains its majority status absent

other strong evidence which may form a reasonable basis

for believing that the Union has lost its majority status.

In this case, we do not find the required other strong evi-

dence which may form a reasonable basis for believing that

the Union lost its majority status.” (See page A24 of Board

decision). In doing so the Board applied the “good faith

doubt test” and distinguished Board cases relied upon by

the Company by emphasizing that in those cases employers

were not engaged in any unfair labor practices while in

the instant case the Company had not fully complied with

the Board’s previous orders, enforced by the Court of Ap-

peals. In reaching the conclusion that prior unremedied

unfair labor practices preclude an employer from question-

ing the majority status of the Union, the Board relied on

C&C Plywood Corporation and Veneers, Inc., 163 NLRB

1022 (1967); Miami Coca-Cola Bottling Co. d/b/a Key West

Coca-Cola Bottling Co., 150 NLRB 892 (1965). In conclu-

sion the Board stated at pages A27-A28 of its decision:

9

“Based on the above, it is clear that the Respondent

has not established the existence of objective facts

establishing a reasonable basis for a good faith doubt

of the Union’s majority status as of August 1972, when

it withdrew recognition from the Charging Party. It

is obvious that the claim of such doubt of the Union’s

majority status was an afterthought in response to the

charge filed by the Union on August 3, 1972, and

merely constituted another effort by the Respondent

to avoid the possibility of entering into an agreement

with the Charging Party. This is clear from the fact

that during the critical negotiating sessions involved

herein and following them up until August 11, 1972,

the Respondent had never made a claim to the Union

that it doubted its majority status, even though the

factors upon which it relied to establish the alleged

doubt in this case were well known to the Respondent

during all critical times herein.

“Taking into account all the objective considerations on

which the Respondent relies, we find that they are in-

sufficient to demonstrate that the Respondent had rea-

sonable grounds for believing that the Union no longer

commanded majority employee support at the time of

its refusal to bargain. This, coupled with the fact that

the Respondent made clear when it refused to bargain

that it did not want to deal further with the Union,

i.e., it is not obligated to continue a ‘fruitless marathon

of bargaining’, leads us to the conclusion that the Re-

spondent’s asserted doubt of majority lacks sufficient

basis to justify its refusal to bargain. We conclude

from Respondent’s conduct in delaying further negoti-

ations by its delay in answering the communications

of Scales to resume bargaining, its admitted statement

that an agreement was close at hand, and its unsup-

10

portable position that an impasse was reached, that

the Respondent was not bargaining in good faith.”

On August 23, 1974, the Board filed with the United

States Court of Appeals for the Tenth Circuit (hereinafter

referred to as the “Court of Appeals”) a petition seeking

enforcement of the Board’s original decision and order.

The matter was argued on January 24, 1975, and on Febru-

ary 24, 1975, the Court of Appeals enforced the Board’s

original order (510 F.2d 1154).

The Court of Appeals agreed with the Board’s appli-

cation of the “good faith doubt test” applying the rationale

of National Labor Relations Board v. Rish Equipment Co.,

407 F.2d 1098, 1101 (4th Cir. 1969) and National Labor

Relations Board v. Little Rock Downtowner, Inc., 414 F.2d

1084, 1091 (8th Cir. 1969). It further interpreted Brooks v.

National Labor Relations Board, 348 US. 96, 104, 75 S.Ct.

176, 99 L.Ed. 125 (1954) as standing for the proposition

that the question concerning an employer’s refusal to bar-

gain when he doubts a Union’s continued majority is a

matter appropriately determined by the Board’s adminis-

trative authority. At the same time the Court rejected

the Board’s argument that the Company could not question

the majority status of the Union because it had not paid

the back pay award inasmuch as three years had gone by

since the Board clarified that award and the employer of-

fered to pay the amount which the Board attorney esti-

mated to be due prior to withdrawing recognition from the

Union. In conclusion the Court of Appeals stated:

“The record shows no indication of employee opposi-

tion to Union. Employer’s reliance on increase in unit

size and personnel turnover does not impress us. The

claim of loss of majority status was not made until

after Union filed an unfair practice charge based on

failure to negotiate. The Board was justified in find-

ing that Employer was not bargaining in good faith.”

11

REASONS FOR GRANTING THE WRIT

This Writ presents issues involving withdrawal of

recognition of a collective bargaining representative which

form the basis for considerable disagreement and conflict

among the Courts of Appeals as well as the Board mem-

bers. The issues are of paramount importance in the ad-

ministration of labor relations statutes and enforcement

of the refusal to bargain provisions of the Labor Manage-

ment Relations Act throughout the nation.

I. Appropriate Test to Be Applied at Time Recognition

Is Withdrawn.

In the instant case, the Board and the Court of Ap-

peals have found the Company violated Section 8(a) (5)

and 8(d) of the Labor Management Relations Act since it

withdrew recognition and declined to bargain with the

Union relying primarily upon considerable turnover of

employees and a substantial increase in unit size as a suffi-

cient basis to cast doubt on the Union’s continued majority

status. This test has been viewed as “substantially an ob-

jective test” and was adopted by the National Labor Rela-

tions Board in Stoner Rubber Company, supra. The doc-

trine requires that once sufficient evidence has been

presented to cast a doubt on the continuing majority

status, the burden shifts to the general counsel to prove

on the critical date the Union in fact represented a ma-

jority of the employees. The following courts have ap-

plied the “Stoner” test in these cases: Automated Busi-

ness Systems v. National Labor Relations Board, 497 F.2d

262, 269-272 (6th Cir. 1974); NLRB v. Dayton Motels, 474

F.2d 328 (6th Cir. 1973); Lodges 1746 and 743, Interna-

tional Association of Machinists and Aerospace Workers,

AFL-CIO, 416 F.2d 809, 811-813 (D.C. Cir. 1969), cert.

12

denied 396 U.S. 1058, 90 S.Ct. 751, 24 L.Ed. 2d 752 (1970);

Allied Industrial Workers Local 289 v. NLRB, 476 F.2d

868 (D.C. Cir. 1973); and NLRB v. Frick Co., 423 F.2d 1327

(3d Cir. 1970).

In this case, the Board and the Court of Appeals, con-

trary to the Administrative Law Judge, have applied the

reasonable “good faith doubt” rule enunciated earlier by

the Board in Celanese Corporation of America, 95 NLRB

664 (1951) which places the emphasis on an “employer’s

subjective intent” at the time of the withdrawal of rec-

ognition to conclude that the Company has violated Sec-

tions 8(a)(5) and 8(d) of the Act. Other Courts of Ap-

peals have also concluded that the “good faith doubt” sub-

jective test is the appropriate test to be applied when an

employer withdraws recognition after the end of the certi-

fication year. Terrell Machine Company v. NLRB, 427

F.2d 1088, 1090 (4th Cir. 1970), cert. denied 398 U.S. 929

(1970); NLRB y. Little Rock Downtowner, Inc., 414 F.2d

1084, 1091 (8th Cir. 1969); Bally Case and Cooler v. NLRB,

416 F.2d 902, 905, 906 (6th Cir. 1969), cert. denied 399 US.

910, 90 S.Ct. 2201 (1970); NLRB v. Gulfmont, 362 F.2d 588,

589 (5th Cir. 1966); NLRB v. Tesoro Petroleum Corp., 431

F.2d 95, 97 (9th Cir. 1970); Laystrom Mfg. Co., 151 NLRB

144, enf. denied 359 F.2d 799 (7th Cir. 1966); and NLRB

v. Leatherwood Drilling Co., Nos. 74-2415 and 74-2421 (5th

Cir. May 27, 1975), 89 LRRM 2460.

The two views have been recognized by the Court of

Appeals, Sixth Circuit, in Automated Business Systems v.

NLRB, supra, at footnote seven:

“The board has characterized the Stoner holding as a

minority rationale since only two members concurred

in the quoted language. Taft Broadcasting, WDAF-

TV AM-FM, 201 NLRB No. 113, was decided on the

13

Stoner theory. The Board characterizes the Taft

Broadcasting reliance on Stoner as dictum. The Board

ruled that the correct rule was still that adopted in

Celanese Corporation of America, 95 NLRB 664 (1951).

In Celanese, the Board applied a good faith doubt test

in determining whether an employer was justified in

refusing to bargain with the union. The Board held

that a good faith doubt of the union’s majority was a

complete defense to § 8(a)(5) unfair labor practice

charges, regardless of the actual majority status of the

union. While the Board indicated that some basis in

fact must exist to support the employer’s doubt, the

test was largely subjective. In Stoner, emphasis was

placed on the production of evidence to cast a serious

doubt on the Union’s majority status. This test is

substantially an objective test. Since the test is ob-

jective and governed by the evidence produced by the

employer rather than the employer’s intent, there ap-

pears to be no reason for adopting a different test for

rebutting the presumption of majority status than for

withdrawing recognition... . We find the Stoner

rationale to be persuasive and to be the better rule

and the one adopted by the courts. Allied Industrial

Workers, Local 289 v. NLRB, 155 U.S.App.D.C. 112,

476 F.2d 868 (1973); NLRB v. Frick Co., 423 F.2d 1327

(3d Cir. 1970). The General Counsel is in a much

better position to prove the majority status of the

union than is the employer.” 497 F.2d at 271 n. 7.

Moreover, the Court of Appeals (7th Circuit) also has

recognized the two lines of cases. In Orion Corporation vy.

NLRB, No. 74-1432 (7th Cir. April 28, 1975), 89 LRRM

2135 at page 2137 wherein it stated:

“The principal difficulty in resolving the central legal

issue in this case is reconciling divergent treatments

14

accorded the allocation and measure of the burden of

proof in several of the leading refusal to bargain

cases....

“At issue here are the weight and effect of that re-

buttable presumption of continued majority status.

“There are two lines of cases, one emphasized in the

Board’s order relying on Terrell and the other in the

Company’s brief relying on Stoner. The Terrell ap-

proach holds that the presumption of continued ma-

jority is ‘sufficient to establish prima facie a continuing

obligation to bargain’ (427 F.2d at 1090), or in the

words of this Court, following Terrell

‘The effect of the presumption is merely to require

the employer to bargain with a previously recog-

nized representative unless it can show (1) that the

union in fact has lost its majority, or (2) at the

least, that reasonable grounds exist for good faith

doubt as to continuing majority support for the rep-

resentative. Celanese Corp., 95 NLRB 664, (1951);

Terrell Machine Co. v. NLRB, supra.’ Zim’s Food-

liner, Inc. v. NLRB, supra, 495 F.2d at 1139.

“The Stoner approach varies this formulation slightly:

‘. . . to overcome the presumption of majority the

employer need only produce sufficient evidence to

cast serious doubt on the union’s continued majority

status. The presumption then loses its force and the

General Counsel must come forward with evidence

that on the refusal-to-bargain date the union in fact

did represent a majority of employees in the appro-

priate unit.’” 123 NLRB at 1445.

Board member Kennedy also emphasized the conflict-

ing views in the Board’s decision in Orion Corp., 210 NLRB

371, 86 LRRM 1193, 1197 (1974):

I —————ssss—“(“‘“itsé*C*C*‘C ee

15

“My colleagues ignore the fundamental principle that

an employer may not deal with a minority union. The

Employer’s mistaken good-faith belief that a union

represents a majority is no defense. International

Ladies’ Garment Workers’ Union, AFL-CIO, v. NLRB,

366 U.S. 731, 48 LRRM 2251 (1961). We have said

that an employer may not continue to deal with an

incumbent union if he has reasonable cause to believe

that the union does not command majority support.

In Anderson Pharmacy, 187 NLRB 301, 76 LRRM 1163,

the Board found that the employers violated Section

8(a)(1) and (2) by executing a new contract with an

incumbent union when there was ample evidence that

the employers were aware that the status of the Guild

as the bargaining agent of the employees was open to

serious question. The same reasoning must apply in

the instant case.

“I reject the suggestion in the majority opinion that

my ‘rationale would permit an employer at its whim

to withdraw recognition.’ It is totally inaccurate to

suggest or imply that Respondent’s withdrawal of rec-

ognition was based on a mere whim. In this case, I

adhere to precisely the same rationale I expressed in

Southern Wipers, Inc., supra, and Taft Broadcasting,

201 NLRB No. 113, 82 LRRM 1338. I think it is note-

worthy that Member Jenkins joined me in my ratio-

nale in the Southern Wipers case and Member Penello

joined me in my rationale in the Taft Broadcasting

case. In the last paragraph of the Taft Broadcasting

case we said:

‘In sum, we conclude that, at the time it withdrew

recognition, the Respondent had sufficient objective

grounds for believing that a majority of the em-

16

ployees no longer desired union representation.

Since the General Counsel failed to come forward

with evidence that on the refusal-to-bargain date

the Union in fact did represent a majority of em-

ployees in the unit in question, the allegations in the

complaint are found to be without merit.’ ”

Also, in Automated Business Systems, 205 NLRB 35,

84 LRRM 1042, 1049 (1973), both Chairman Miller and

member Kennedy voiced separate dissents.

Mr. Kennedy stated the following: *

“The majority is clearly correct in not finding a

violation of Section 8(a) (5) of the Act....

“The majority’s conclusion with respect to the pre-

sumption of majority is contrary to established law.

The principles that govern withdrawal of recognition

of an incumbent union were articulated by the District

of Columbia Circuit Court of Appeals in Lodges 1746

and 743, International Association of Machinists and

Aerospace Workers, AFL-CIO [United Aircraft Cor-

poration] v. NLRB, 416 F.2d 809, 811-812, 71 LRRM

2336 (C.A.D.C., 1969). The court stated:

‘The legal principles relating to withdrawal of rec-

ognition of bargaining representatives are well set-

tled. Absent special circumstances, the union en-

joys an irrebuttable presumption of majority status

for one year after certification. Thereafter, the

presumption continues but becomes rebuttable upon

a showing of “sufficient evidence to cast serious

doubt on the union’s continued majority status.” At

that point, the burden shifts to the General Counsel

3. Neither Chairman Miller nor Board Member Kennedy par-

ticipated in the Board’s decision in the instant case.

17

to prove that, on the critical date, the union in fact

represented a majority of the employees.’

“The Court’s view as to the burden of proof, with

which the majority expressly disagrees, is in accord

with the Board’s view as set forth in Stoner Rubber

Company, Inc., 123 NLRB 1440, 44 LRRM 1133. The

Board recently predicated its dismissal of a complaint

alleging a refusal to bargain on this longstanding prin-

ciple that the General Counsel has the burden of

proving that the union, in fact, represents a majority

of the employees. Taft Broadcasting, WDAF-TV,

AM-FM, 201 NLRB No. 113, 82 LRRM 1338. We there

said: ‘Since the General Counsel failed to come for-

ward with evidence that on the refusal-to-bargain

date the Union in fact did represent a majority of

employees in the unit in question the allegations in

the complaint are found to be without merit.’

“. . . The Dayton Motels, Inc., case, cited in footnote

17 above, is clearly in accord with my view of the ap-

plicable law. The Court stated:

‘In order to establish that an employer’s withdrawal

of recognition and refusal to bargain with an in-

cumbent union transgresses Section 8(a) (5) of the

Act, the burden of proof is upon the Board to show

that the union actually represented a majority of

the employees in an appropriate unit. Machinists

Lodges 1746 & 743 v. NLRB, 416 F.2d 809, 71 LRRM

2336 (D.C. Cir. 1969).

‘Failure to prove a majority-status of the Union re-

lieves an employer of any duty to bargain. Maphis

Chapman Corp. v. NLRB, 368 F.2d 298, 303, 63

LRRM 2462 (4th Cir. 1966).

18

‘Furthermore, even if the Union is proved to be

actually representative of a majority, the employer

is not guilty of a Section 8(a)(5) violation if the

employer had a reasonably-grounded belief that the

union did not represent an uncoerced majority of

its employees. Pulley v. NLRB, 395 F.2d 870, 68

LRRM 2464 (6th Cir. 1968); NLRB v. John S. Swift

Co., 302 F.2d 342, 50 LRRM 2017 (7th Cir. 1962).

A good faith c»ubt exculpates the employer even

if the Union in fact represented a majority of the

employees. NLRB v. Ben Duthler, Inc., 395 F.2d

28, 68 LRRM 2324 (6th Cir. 1968).’”

II. Both the Board and Court of Appeals Failed to

Apply the Gissel Standards.

The Court of Appeals herein declined to review the

Board’s bargaining order in light of the standards set forth

in NLRB v. Gissel Packing Co., Inc., 395 U.S. 575, 89 S.Ct.

1918, 23 L.Ed. 2d 547 (1969). In Automated Business Sys-

tems v. NLRB, supra, the Court stated:

“. .. Admittedly, this is not an original organization

situation as in Gissel, but we think the guidelines es-

tablished in Gissel can be applied to the present situ-

ation.” 497 F.2d at 267.

and further stated at footnote one:

“We recognize that distinctions have been drawn be-

tween refusals to recognize a union and withdrawal

of recognition from a union. See NLRB v. Frick Co.,

423 F.2d, 1327, 1331 n 6 (3d Cir. 1970). We have

applied the good faith test in dealing with the pre-

sumption of majority status, a test which the Board,

with approval of the Court in Gissel, abandoned in

refusal to recognize cases. The Board, however still

19

applies the good faith test in withdrawal of recogni-

tion cases. We think, that the guidelines for issuing

a bargaining order in original organization cases can

be applied to cases where recognition of a certified

union has been withdrawn... .”

The Court in Automated Business Systems v. NLRB,

supra, then went on to find that the Board’s decision and

explanation for its order did not undertake the analysis

required by Gissel, supra, and it remanded the case to the

Board for the purpose of making the analysis.

III. Turnover and Expansion of Bargaining Unit Are

Sufficient Evidence to Cast Doubt on the Union’s Con-

tinuing Majority Status.

The Court of Appeals in disagreement with the Law

Judge was not “impressed” with the substantial turnover

and considerable expansion of the bargaining unit. While

the Eighth Circuit Court of Appeals in National Cash Reg-

ister v. National Labor Relations Board, 494 F.2d 189

(1974) a more recent Eighth Circuit Court of Appeals

case than NLRB v. Little Rock Downtowner, Inc., 414 F.2d

1084 (1969) wherein there were 71 terminations within

a bargaining unit consisting of 222 employees stated:

“Nevertheless, it is clear that a turnover in the num-

ber shown here could conceivably affect the majority

status of a bargaining representative.”

Other Court of Appeals decisions following this view

are Ingress Plastene, Inc. v. NLRB, 430 F.2d 542 (7th Cir.

1970); NLRB v. Laystrom Mfg. Co., 359 F.2d 799 (7th Cir.

1966), den. enf. of 151 NLRB No. 144; Capital Aviation, Inc.

v. NLRB, 355 F.2d 875, 877 (7th Cir. 1966); and NLRB v.

H.P. Wasson and Company, 422 F.2d 558 (7th Cir. 1970)

wherein the Court held that a “large turnover and the

20

decrease in check off cards could reasonably give rise to

genuine doubts of a certified union’s continuing majority

support.”

The questions presented herein which need to be

answered are of paramount importance to the adminis-

tration of labor relations statutes and the enforcement of

the refusal to bargain provisions of the Labor Manage-

ment Relations Act. Continuation of the conflicting views

between Board members and Courts of Appeals as dem-

onstrated herein places a needless burden upon the Board,

the Courts and rights of employees protected by Section 7

of the Labor Management Relations Act as well as employ-

ers who have an obligation pursuant to the Act to question

a union’s majority status where the appropriate facts be-

come evident.

It is respectfully submitted, that this case provides

this Court with an excellent vehicle to decide issues of

paramount importance to the administration of the na-

tion’s labor relations law, which have been recognized by

other Courts of Appeals and the members of the National

Labor Relations Board as in disagreement and as remain-

ing unsettled.

CONCLUSION

For the foregoing reasons, the petitioner respectfully

requests that this Petition for Writ of Certiorari be granted.

Respectfully submitted,

WILLIAM G. Haynes

O. B. Erpson

of Erpson, Lewis, Porter & HAYNES

1300 Merchants National Bank Bldg.

Topeka, Kansas 66612 233-2332

Attorneys for Petitioner

Al

APPENDIX A

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JANUARY TERM, 1975

No. 74-1421

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

Vv.

KING RADIO CORPORATION,

Respondent,

COMMUNICATIONS WORKERS OF AMERICA,

AFL-CIO,

Intervenor,

ON APPLICATION FOR ENFORCEMENT OF AN ORDER

OF THE NATIONAL LABOR RELATIONS BOARD

Alan D. Longman, Attorney, National Labor Relations

Board (Peter G. Nash, General Counsel, John S. Irving,

Deputy General Counsel, Patrick Hardin, Associate Gen-

eral Counsel, Elliott Moore, Deputy Associate General

Counsel, and William H. DuRoss, III, Attorney, National

Labor Relations Board, on the brief) for Petitioner.

William G. Haynes (Eidson, Lewis, Porter & Haynes on

the brief) for Respondent.

A2

Blake, Uhlig & Funk and Kane and Koons, Of Counsel,

filed a brief for Intervenor.

Before BREITENSTEIN, McWILLIAMS and DOYLE, Cir-

cuit Judges.

BREITENSTEIN, Circuit Judge.

For the third time in six years the National Labor

Relations Board asks us to enforce an award against King

Radio Corporation requiring it to bargain with the Union.

No contract has been made. Employer withdrew its rec-

ognition of Union and refused to bargain. Board sustained

an unfair labor practice charge filed by Union and ordered

Employer to bargain. We enforce the award.

Union was certified as exclusive bargaining repre-

sentative of an appropriate unit of employees in August,

1966. In King Radio Corporation v. National Labor Re-

lations Board, 10 Cir., 398 F.2d 14, we enforced a Board

award holding Employer guilty of various unfair prac-

tices and requiring it to bargain with Union. Over a year

later, in 1969, the controversy was back with us. In Na-

tional Labor Relations Board v. King Radio Corporation,

10 Cir., 416 F.2d 569, cert. denied 397 U.S. 1007, we en-

forced those portions of an award requiring back pay and

bargaining.

After denial of certiorari in the last case, the General

Counsel and Employer filed a joint motion for clarifica-

tion of the award. On October 7, 1971, Board made a

clarifying order having to do with back wages, not duty

to bargain. See 193 NLRB 614.

A3

In the 40-month period from October 9, 1968, to Febru-

ary 18, 1972, Employer and Union met for collective bar-

gaining on 21 occasions. At the last mentioned session

two items, wages and checkoff, prevented total agree-

ment. Union offered for the first time to pay Employer

two or three cents a card for processing dues checkoff.

Employer rejected the offer. At the February 18 meeting

Employer . d not express a doubt as to Union’s majority

status.

With regard to the February 18 meeting Board said

that “at no time in the history of this bargaining rela-

tionship Fave the parties been so close to reaching an

agreement.” During the next three months Union repre-

sentative tried several times to reach Employer rep-

resentative on the phone and his calls were not returned.

In the period May 22 to July 27 Union representative

wrote three letters to Employer representative requesting

resumption of bargaining negotiations. There was no re-

sponse. On August 3, Union filed an unfair labor prac-

tice charge against Employer. Eight days later Employer

wrote Union that it had no obligation to continue a “fruit-

less marathon of bargaining,” and questioned, for the first

time, the majority status of Union on the basis of increase

in unit size and employee turnover.

At the time of the 1966 election, 343 employees in

the unit were eligible to vote. The result was 182 for

Union and 114 against. On August 9, 1972, Employer had

876 employees within the unit. In the period 1967-1972

Employer hired 4,214 workers and terminated 3,423. Twen-

ty-two of those employed on the date of the election re-

mained employed in August, 1972.

The Administrative Law Judge found that when Em-

ployer withdrew recognition it had sufficient grounds for

A4

belief that a majority of the unit employees no longer

wanted union representation. Board disagreed saying (1)

Employer did not present objective facts showing good

faith doubt of majority status; (2) the claim of doubt as

to majority status was an afterthought in response to

Union’s unfair practice charge; and (3) Employer’s ac-

tion was another effort to avoid an agreement with Union.

Board went on to hold, 208 NLRB No. 82:

“This is clear from the fact that during the criti-

cal negotiating sessions involved herein and follow-

ing them up until August 11, 1972, the Respondent

had never made a claim to the Union that it doubted

its majority status even though the factors upon

which it relied to establish the alleged doubt in this

case were well known to the Respondent during all

critical times herein.”

More than a year passed after Union certification

without a contract. Thereafter, the presumption of rep-

resentative status is rebuttable and an employer may re-

fuse to bargain if he has a good faith, reasonable doubt

of Union majority status. National Labor Relations Board

v. Frick Company, 3 Cir., 423 F.2d 1327, 1330-1331. Proof

of an employer’s frame of mind is not enough. He must

show a rational basis in fact for doubt of majority status.

National Labor Relations Board v. Rish Equipment Com-

pany, 4 Cir., 407 F.2d 1098, 1101. Employee turnover alone

does not provide a reasonable basis for concluding that a

union has lost majority status. National Labor Relations

Board v. Little Rock Downtowner, Inc., 8 Cir., 414 F.2d

1084, 1091.

Employer emphasizes disagreement among Board mem-

bers as to the application of the law when an employer

withdraws recognition. Differences of opinion have arisen

A5

over the burden placed on the General Counsel in such a

situation and other related matters. We decline to be con-

cerned with such problems and we make no attempt to

reconcile Board decisions. In Brooks v. National Labor

Relations Board, 348 U.S. 96, 104, the Court, in discussing

an employer’s refusal to bargain when he doubts a union’s

continuing majority, said: “This, too, is a matter appro-

priately determined by the Board’s administrative au-

thority.”

Employer urges that bargaining had reached an im-

passe. Board found no merit in this contention. We re-

jected the claim of impasse when the controversy was

here the second time, 416 F.2d at 571. We agree with

Board that the February 18 meeting showed agreement

on many issues and progress on those then in disagree-

ment. Determination of an impasse is a fact question

peculiarly within Board expertise. National Labor Rela-

tions Board v. J. H. Bonck Company, 5 Cir., 424 F.2d 634,

638. The record before us sustains Board’s action.

We reject Board’s argument that Employer cannot

question majority status because it has not paid the back

pay award. More than three years has gone by since Board

clarified that award. At argument Board attorneys said

that the award had not yet been computed and paid. In

1972 a Board attorney estimated that “back pay would be

around $25,000.” Employer offered to pay that amount

and the offer was declined. The failure of Board to com-

pute the award is inexcusable. Board cannot now take

advantage of a situation of its own making.

The record shows no indication of employee opposition

to Union. Employer’s reliance on increase in unit size

and personnel turnover does not impress us. Claim of

loss of majority status was not made until after Union

A6

filed an unfair practice charge based on failure to nego-

tiate. Board was justified in finding that Employer was

not bargaining in good faith.

Neither Employer, Union, nor Board can be proud of

the manner in which this controversy has been handled.

In 1968 we ordered enforcement of an order to bargain.

In 1969 we ordered enforcement of an order requiring

back pay and bargaining. It is now 1975. The parties

have neither agreed nor reached an impasse, and the back

pay has not been computed by Board. A prompt conclu-

sion of the dispute is desirable.

The award is enforced. The mandate shail issue forth-

with.

A7

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 74-1421

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

Vv.

KING RADIO CORPORATION,

Respondent,

COMMUNICATIONS WORKERS OF AMERICA,

AFL-CIO,

Intervenor.

Judgment

(Filed March 5, 1975)

Before: Breitenstein, McWilliams and Doyle, Circuit

Judges.

THIS CAUSE came on to be heard upon the appli-

cation of the National Labor Relations Board for the en-

forcement of a certain order issued by it against Re-

spondent, King Radio Corporation, its officers, agents,

successors and assigns on January 22, 1974. The Court

heard argument of respective counsel on January 24, 1975,

and has considered the briefs and transcript of record filed

in this cause. On February 12, 1975, the Court being fully

advised in the premises, handed down its opinion granting

enforcement of the Board’s order.

A8

ON CONSIDERATION WHEREOPF, it is ordered and

adjudged by the United States Court of Appeals for the

Tenth Circuit that the said order of the National Labor

Relations Board in said proceeding be enforced, and that

King Radio Corporation, its officers, agents, successors and

assigns abide by and perform the directions of the Board

in said order contained.

/s/ Jean S. Breitenstein

Judge, United States Court

of Appeals for the Tenth

Circuit

DATED: March 5, 1975

Ag

APPENDIX C

UNITED STATES OF AMERICA

BEFORE THE

NATIONAL LABOR RELATIONS BOARD

Case 17—CA—5274

KING RADIO CORPORATION

and

COMMUNICATIONS WORKERS

OF AMERICA, AFL-CIO

Decision and Order

On April 30, 1973, Administrative Law Judge Frank

H. Itkin issued the attached Decision in this proceeding.

Thereafter, the General Counsel and the Charging Party

filed exceptions and supporting briefs.

Pursuant to the provisions of Section 3(b) of the Na-

tional Labor Relations Act, as amended, the National Labor

Relations Board has delegated its authority in this proceed-

ing to a three-member panel.

The Board has considered the record and the Admin-

istrative Law Judge’s Decision in light of the exceptions

and briefs and has decided to affirm the Administrative

Law Judge’s rulings, findings, and conclusions only to the

extent consistent herewith.

The Administrative Law Judge found that at the time

Respondent withdrew recognition it had sufficient grounds

for believing that a majority of unit employees no longer

wanted union representation, and the General Counse! has

not come forward with any evidence that the Union did

Al0

represent a majority of employees. He also found that

the General Counsel has failed to prove that since about

February 18, 1972, Respondent failed and refused “to fur-

nish the Union with the contract language of items agreed

upon, as promised by Respondent.” Accordingly, he con-

cluded that the Respondent did not violate Section 8(a) (1)

and (5) of the Act and recommended that the complaint

be dismised in its entirety. The General Counsel and the

Union have filed exceptions to the above findings and rec-

ommendations, some of which we, for reasons hereinafter

set forth, find meritorious.

The Respondent is engaged in the manufacturing of

aircraft radios and related navigational systems in its two

plants in Olathe, Kansas. The Union began an organiza-

tional campaign at the plants during early March 1966 and

requested recognition from the Company about April 12,

1966. A Board-conducted representation election was held

on June 30, 1966, which the Union won by a vote of 182

to 114, and the Union was certified by the Board as the

bargaining representative of Respondent’s production and

maintenance employees at the plants on August 19, 1966.

Thereafter, a complaint issued as a result of an unfair

labor practice charge filed by the Union and the Board

found the Employer violated Section 8(a)(1) and (5) of

the Act in cases 166 NLRB 180 and 166 NLRB 649. These

Board Decisions were enforced by the United States Court

of Appeals, 10th Circuit, on July 22, 1968 (398 F.2d 14).

Thereafter, the Board issued its Decision in 172 NLRB

_ 1. The appropriate unit for Purposes of collective bargaining

within the meaning of Sec. 9(b) of the Act consists of all pro-

duction and maintenance employees at the 400 North Rogers

Road and 139 South Brockway, Olathe, Kansas, plants of King

Radio Corporation, Inc., including plant clericals, but excluding

the office clerical employees, accounting department employees,

research and development employees, professional employees,

guards, and supervisors within the meaning of the Act.

All

1051 on July 9, 1968, finding that Respondent had violated

Section 8(a)(5) of the Act. This decision was enforced

in part by the 10th Circuit Court of Appeals on September

17, 1969 (416 F.2d 596), and certiorari was denied by the

United States Supreme Court on April 27, 1970 (397 U:S.

1007). The Board’s Decision required that the Respon-

dent:

Forthwith abrogate, cancel, and disestablish, in all

respects, the wage structure system which Respondent

unilaterally established and placed into effect for bar-

gaining unit employees on and since February 1, 1967;

provided, however, (1) that all increased minimum

wage rates, whether statutory or otherwise, for all job

classifications, placed into effect by Respondent for

said unit employees on or since February 1, 1967, shall

not be abrogated, reduced, or otherwise changed with-

out bargaining in good faith with the Union thereon,

and (2) that in all respects other than said increased

minimum wage rates (whether statutory or otherwise,

for all job classifications) the wage rate progression,

system (including automatic wage rate progressions),

and all other features of Respondent’s wage structure

system which were in effect immediately prior to Re-

spondent’s said February 1, 1967, unilateral change,

shall forthwith be reinstituted and restored, and shall

not be changed without bargaining in good faith with

the Union thereon. .

and

Forthwith abrogate, cancel, and disestablish all changes

in any term or condition of employment of said bar-

gaining unit employees, other than any increase in

minimum wage rates (whether statutory or otherwise,

fur all job classifications) as hereinabove provided,

which have been established for said unit employees

Al2

by Respondent at any time since said unit employees

have been represented for collective bargaining by

Communication Workers of America, AFL-CIO, unless

said changes are bargained in good faith with said

Union.

and

Upon request, bargain in good faith with Communica-

tion Workers of America, AFL-CIO, as the exclusive

bargaining representative of Respondent’s employees

in said bargaining unit and embody in a signed contract

any agreement reached. For purposes of such bargain-

ing, the period of 1 year following posting by Respon-

dent of the attached notice marked “Appendix” shall

be deemed and considered to be the initial certification

year of Communication Workers of America, AFL-CIO,

and the Board certificate issued to said Union shall be

deemed to be amended and conformed accordingly.

The Employer posted the notice to employees pursuant

to the Board’s Order in the above case.

After the Respondent’s petition for writ of certiorari

was denied by the Supreme Court, a disagreement arose

concerning the interpretation and application of the re-

medial portions of the Board’s Decision in 172 NLRB 1051.

In an effort to resolve the controversy, the General Counsel

and Respondent filed a joint motion for clarification with

the Board, which was granted on June 28, 1971. The Board

issued an Order on October 8, 1971 (193 NLRB 614), clari-

fying its Order.’

2. As noted in the Administrative Law Judge’s Decision,

fn. 7, backpay has not been effected in the above proceeding and,

because of the large number of employees involved, the total may

amount to $25,000 or upwards. General Counsel asserts that back-

pay totaling $25,112.33 is owed to 821 employees and that interest

thereon is approximately $4,935.98. How many of the 821 em-

ployees that are owed backpay are presently in Respondent’s em-

ployment is unknown.

Al3

The position of the Charging Party and the General

Counsel in this case is that the Respondent illegally with-

drew recognition and refused to honor the Charging Party’s

certification as of August 11, 1972, not because objective

circumstances justified doubting the Union’s majority as

Respondent asserts, but because the parties were close to

reaching an agreement on the contract which the Respon-

dent did not want, and because there is an outstanding un-

fair labor practice case against the Respondent involving

unit employees herein which has not been complied with.

In addition, the Charging Party and the General Counsel

take the position that the Respondent violated Section 8

(a) (5) of the Act by failing to provide the Union with

retyped copies of articles agreed upon in the February 18,

1972, bargaining session.

The Respondent’s position is that it withdrew recogni-

tion or refused to honor the certification because it was

justified in doubting the majority status of the Union and

that its bases for such doubt were that the unit had ex-

panded considerably since the certification, there had been

a great deal of turnover at the plant since the certification,

and the Union had allegedly been inactive for certain

periods of time.

The Administrative Law Judge found in his Decision

that the question of inactivity of the Union in this case is

not pertinent in view of the pattern of resumption of

bargaining with the Union. We agree with this finuing.

Before and after April 13, 1970, the date Respondent

posted the notice to employees pursuant to the Board’s De-

cision the Respondent and Union met for purposes of ne-

gotiating a collective-bargaining agreement on 21 different

occasions. These meetings were held over a period of 40

months on the following dates:

Al4

October 9, 1968 May 14, 1969

October 22, 1968 January 27, 1970

November 19, 1968 February 9, 1970

November 20, 1968 February 10, 1970

December 5, 1968 February 11, 1970

December 6, 1968 February 12, 1970

December 10, 1968 August 19, 1971

December 23, 1968 August 24, 1971

December 30, 1968 August 27, 1971

January 9, 1969 December 20, 1971

February 18, 1972

On November 3, 1971, William L. Brown, union repre-

sentative, sent a letter to William Haynes, attorney for

Respondent, requesting a bargaining meeting and stating

that Brown “would like to establish a date that is to our

mutual agreement in getting back to the bargaining table,”

and suggested meeting dates of either November 18 or 19,

1971. Receiving no reply from Haynes, Brown sent another

letter dated November 19, 1971, requesting that the nego-

tiations resume and suggesting that Resnondent suggest

the dates for the meeting. By letter dated December 3,

1971, Respondent’s counsel answered Brown’s letter of

November 19 and suggested a meeting date of either De-

cember 16 or December 20, 1971.

A meeting was arranged and held on December 20,

1971. Prior to the meeting, Brown had sent the Respondent

a complete contract proposal and this proposal was dis-

cussed during the 3-hour meeting. The meeting adjourned

with the understanding that Haynes wanted to look over

the Union’s contract proposals and make certain correc-

tions. No representatives of the Respondent stated at that

meeting that the Respondent doubted the Union’s majority

Al5

status. Brown was to make changes requested by the Re-

spondent at the December 20, 1971, meeting and submit

them to the Respondent.

Brown submitted changed or redrafted proposals to

Haynes, and another meeting was held on February 18,

1972. During the intervening period, although there were

various telephone discussions between Brown and Haynes,

Haynes did not question the Union’s majority status.

It appears that at the February 18, 1972, meeting many

provisions of a contract were agreed to. There is an ap-

parent dispute regarding which particular contract items

were agreed to in toto at the February 18, 1972, meeting.

However, numerous items were agreed to at that particu-

lar meeting because of changes made and agreed to at that

meeting. Richard Johnson, personnel director for Re-

spondent, noted that there was a change made in the

preamble and the item was agreed upon; Respondent sub-

mitted to the Union a proposal on management rights,

which was agreed upon; an item on new classifications was

agreed upon after a change; the Union accepted Respon-

dent’s proposal on arbitration; an item on job vacancies

and transfers was agreed to after changes; an item on rules,

benefits, and privileges was withdrawn by the Union; and

an item on subcontracting was agreed to after a change.

It thus appears that the February 18, 1972, meeting

was a fruitful bargaining session with considerable progress

made toward the completion of a contract. There is agree-

ment that at the conclusion of the February 18, 1972, meet-

ing there were only two items standing in the way of total

agreement; namely, wages and dues checkoff. There was

considerable discussion of these matters. There was agree-

ment reached on the second- and third-year wages of the

contract; agreement was not reached on the first-year

wages of the contract, the Union first requesting a 15-

Al6

percent increase and then coming down to 10 percent.? The

Respondent did not move from its position that there

would be no increase during the first contract year.*

Regarding the dues-checkoff item, Haynes said that

he would agree to a checkoff system providing the Union

paid him 15 percent for each member’s dues collected.

Brown acknowledged that he didn’t have the authority to

do this and, at Haynes’ request, Brown tried to get the

authority. Brown phoned Stanley Hubbard, area director

of the Un.on, and was instructed to make a counteroffer of

2 or 3 cents a card for processing. This was rejected by

the Respondent. This was the first occasion that the Union

had offered any payment whatsoever to the Respondent for

processing dues checkoff.

At the close of the February 18, 1972, meeting, Brown

informed Haynes he would be dealing with Mr. Lovett, a

CWA representative, in the future. Haynes said he was

withdrawing the “total package,” that is, the holiday item,

the checkoff item, and the wage item. According to Brown,

with regard to the agreed-upon proposals, Haynes stated

3. Brown said that he mentioned to Haynes that the Union

would be bound by the 5.5 percent ceiling of the wage-price freeze

in existence at the time, although apparently this was not yet

reduced to a firm proposal by Brown. Johnson testified that he

“did not hear such a statement” made at the February 18, 1971,

session.

4. At the December 20, 1971, meeting, there was agreement

on an immediate wage increase at that time. Brown testified:

Mr. Haynes and the gentleman at the table [Mr. Johnson]

asked me to agree to a wage increase for the hourly rated

employees. With Christmas coming on and so forth we didn’t

want to deprive these people of a wage increase and it would

have no effect on future bargaining, and I did agree to it

and the committee agreed to it and we initialed the proposed

increases for these people. ... We did agree on this wage

increase at this time to be effective the third of January 1972.

Based upon this, Mr. Haynes felt [on February 18, 1972]

that there was no wage increase due at the first year of the

contract.

Al7

he wanted some language changes made, and he (Brown)

agreed at Johnson’s suggestion to retype and submit the

entire contract to the Union for proofreading with no in-

tent to change any substantive terms. At no time during

the February 18, 1972, meeting did any representative of

the Respondent express any doubt of the Union’s majority

status.

Thereafter, Brown submitted a memorandum to Union

Representative Lovett, dated February 18, 1972, stating:

Subject: Bargaining—King Radio Corporation

Final offer made by the Company as of this date was

as follows:

3 year contract

no raise the first year

5% 1st Anniversary

5% 2nd

15% to activate dues deduction to be paid to the Com-

pany by the Union

Veterans Day

Final offer made by the Union:

10% ist year

5% 2nd year

5% 3rd year

Dues deduction and the Union will pay .02 per card

per month for processing.

Veterans Day

We are apart on three (3) items - - - wages, dues

deduction and Veterans Day withdrawn by the Com-

pany. All other Articles acceptable.

Alg

About the middle of March 1972, Paul Scales, CWA

staff representative, assumed the responsibilities of continu-

ing the bargaining negotiations with the Respondent. In the

early part of April 1972, Scales attempted to contact Haynes

by leaving a message at Haynes’ office. Haynes did not

return this call and Scales called Haynes again about the

early part of May 1972. Again, Haynes did not return the

call. Scales called a third time on May 22, 1972, and did

speak with Haynes. On the same date, Scales sent a

letter to Haynes confirming the phone conversation and

stating that “I will be waiting for a projected date [to con-

tinue bargaining negotiations] from you.” There being no

response from Haynes, Scales sent a second letter to him

en July 17, 1972. Receiving no reply Scales sent a third

letter to Haynes dated July 27, 1972, again requesting re-

sumption of negotiations.

Respondent’s counsel, Haynes, sent to Scales the fol-

lowing letter dated August 11, 1972:

I’m sorry for the delay in responding to your let-

ter dated July 27, 1972, as I have been away from the

office for the past two weeks.

As you know, Company representatives have met

with representatives of the Union on approximately

five different occasions for a series of meetings rang-

ing from five to fifteen meetings during the past five

(5) years, during which time written proposals and

counter proposals have been exchanged in an effort

to reach an agreement on wages, hours and other con-

ditions of employment. The last series of meetings

were conducted through November and December of

1971 and January of 1972. Although these meetings

resulted in agreement on a number of subjects dis-

agreement remained on others and the disagreement

was never resolved. The Company has not changed

Al9

its position on those subjects which were in disagree-

ment and it has never been advised that the Union

has changed its position. The Company does not be-

lieve that it is obligated to continue a “fruitless mara-

thon of bargaining” indefinitely, and thus believes it

has met its bargaining obligation.

In the interim, the Company has experienced al-

most 100% turnover in bargaining unit employees and

there is less than 20% of the employees employed with

the Company that were employed in 1966 when the

NLRB election was conducted. Further, the number

of employees in the bargaining unit has more than

doubled.

Moreover, the Union representation for bargaining

unit employees has been nonexistent except to request

a return to the bargaining table on an intermittent,

almost annual basis, to rediscuss, with no change in

position, subjects which had been previously discussed,

and continue to be in disagreement.

Accordingly, the Company believes it has met its

bargaining obligation. The majority status of the

Union has been affected by the large turnover of em-

ployees as well as the doubling of the work force with-

in the past year.

On August 29, 1972, Paul Scales replied to Respon-

dent counsel’s letter as follows:

I was extremely disappointed to receive your let-

ter to me dated August 11, 1972, wherein you state

that continued bargaining between the Union and the

Company had developed into a “fruitless marathon of

bargaining”’.

It is my understanding that the last bargaining

sessions between you and Mr. Bill Brown had been

A20

very fruitful, in fact much progress was made. I un-

derstand the Company and the Union were apart only

on first year wages and the cost of payroll deduction of

union dues. I also understand from Mr. Brown that

at the last bargaining session, which was held Feb-

ruary 18, 1972, you had agreed to prepare a contract

on all items and send to my office for initialing on

all items but the above mentioned items, wages and

payroll deduction of union dues. As of this date, of

course, we have not received the contract from you.

The Communication Workers of America, AFL-

CIO still is a certified representative of all conven-

tional production and maintenance employees of King

Radio Corporation, certified by the National Labor

Relations Board. Consequently, you as the bargaining

agent for the company and I, as the bargaining rep-

resentative for the union have a responsibility to con-

tinue bargaining until such time as a true stalemate

has been reached. I do not feel that the point has

been reached. I base my thinking on the gains made

at the last session with Mr. Brown.

I feel we are close to a settlement and should again

meet at the bargaining table in hopes of consummating

an agreement.

May I hear from you as to a date to continue bar-

gaining.

Scales assertedly received no response to the above

letter.

Richard Johnson, the Company’s personnel manager,

testified with respect to the Company’s turnover in person-

nel for the years 1967 through 1972. Johnson indicated the

number of people employed and the number of people

terminated in the hourly classifications, which is the bar-

gaining unit, as follows:

Year Employed Terminated

1967 593° 371

1968 702 554

1969 580 504

1970 208 353

1971 558 453

1972 1,573 1,188

4,214 3,423

*Does not include 1967.

It was stipulated by the parties that there were 343

eligible voters in the unit at the time of the June 1966 elec-

tion. There were 182 votes cast for the Union, and 114

against it, with 3 void ballots and 26 challenged ballots.

Johnson testified that beginning in February 1968 the Com-

pany began preparing weekly reports on the number of

employees in each classification and on August 9, 1972,

the Company had 876 hourly employees who were em-

ployed within the bargaining unit.

Johnson further testified that the Company’s ques-

tioning the majority status of the Union “was based upon

the turnover of personnel . . . the increase of the work

complement in the bargaining unit . . . plus the fact we

had observed or seen or heard of absolutely no union

activity in the plant.” Johnson claimed that “annually

since 1967” the Company has not “been notified as to local

representation within the plant,” however, the Company

has “recently been notified of a change in local representa-

tion in the plant.” Johnson said that since March 1967

he could recall one visit by the local union president, and

that was in 1971, although he acknowledged that during

the strike employees carried picket signs at the plant.

A22

On the above facts, the Administrative Law Judge

found that at the time the Respondent withdrew recogni-

tion the Respondent had sufficient grounds for believing

that a majority of the unit employees no longer wanted

union representation, and the General Counsel has not

come forward with any evidence that the Union did repre-

sent a majority of employees. Therefore, he concluded

the Respondent did not violate Section 8(a) (1) and (5) of

the Act. He further found, based on credibility resolu-

tions, that the General Counsel failed to prove that since

about February 18, 1972, Respondent failed and refused

“to furnish the Union with the contract language of items

agreed upon, as promised by Respondent.”

We do not agree with the Administrative Law Judge’s

finding that the Respondent had sufficient grounds for be-

lieving that a majority of the unit employees no longer

wanted union representation.

The law applicable to the withdrawal or failure to

honor the certification of a union has been succinctly stated

in Laystrom Manufacturing Co., 151 NLRB 1482, 1483, as

follows:

Absent unusual circumstances, there is an irrebut-

table presumption that the majority status of a certi-

fied union continues for 1 year from the date of certifi-

cation. After the first year the certification still cre-

ates a presumption of majority status, but the pre-

sumption is normally rebuttable by an affirmative

showing that the union no longer commands a major-

ity. Moreover, where the certificate is a year or more

old an employer may withhold further bargaining

without violating the Act and insist that the union

reestablish its statutory representative status if, but

only if, he in good faith has a reasonable doubt of the

union’s continuing majority.

A23

Two prerequisites for establishing whether or not an

employer was acting properly in questioning a certified

union’s majority status, as set forth in Celanese Corpora-

tion of America, 95 NLRB 664, 673, are (1) that the em-

ployer has “some reasonable grounds for believing the

union had lost its majority status,” and (2) “the majority

issue must not have been raised by the employer in a

context of illegal antiunion activities, or other conduct

by the employer aimed at causing disaffection from the

union or indicating that in raising the majority issue the

employer was merely seeking to gain time in which to

undermine the union.” In Viking Lithographers, Inc., 184

NLRB No. 16, the Board concluded that in a context free

of unfair labor practices or even of manifest union animus

the factors relied on by the employer provided an objec-

tive basis which could properly furnish reasonable grounds

for the respondent to believe that the union had lost its

majority status.’ Similarly, in Southern Wipers, Inc., 192

NLRB 816, the Board held that an employer had suffi-

cient objective considerations on which to ground a belief

that a majority of the employees no longer desired union

representation. As in Viking Lithographers, the employer

had not engaged in any unfair labor practices.

More recently, in Emerson Manufacturing Company,

Inc., 200 NLRB No. 33, the Board set forth its rationale

on the conditions precedent to be met by an employer

in refusing to negotiate further with a union under similar

circumstances as exists in the instant case. One considera-

tion, as expressed in the Emerson case, is as follows:

The initial question to be considered is whether

the record as a whole supports a finding that doubt

of the Union’s continued majority was the real reason

for the Respondent’s refusal to bargain.

5. Citing Lloyd McKee Motors, Inc., 170 NLRB 1278.

A24

We turn first to the issue of whether or not Respondent

in this case had objective grounds for a reasonable belief

that the Union had lost its majority status. We agree

with the Administrative Law Judge that the question of

the inactivity of the Union in this case is not pertinent

in view of the pattern of resumption of bargaining with

the Union. With this exclusion, the only two grounds

that Respondent could properly rely on for belief of a

loss of majority status by the Union are the increase in

size of the unit from the time of the certification until

August 1972, and the large amount of turnover in the

unit. With respect to these two grounds, the Board has

held on numerous occasions, and specifically, in Laystrom

Manufacturing Co., supra, and Emerson Manufacturing Co.,

Inc., supra, that new employees will be presumed to sup-

port a union in the same ratio as those they may replace.

Thus, because the Union maintained a majority status at

the time of the certification, it must be presumed that

it still maintains its majority status absent other strong

evidence which may form a reasonable basis for believing

that the Union has lost is majority status. In this case,

we do not find the required other strong evidence which

may form a reasonable basis for believing that the Union

lost its majority status.

The Administrative Law Judge relies upon two cases,

Taft Broadcasting, WDAF-TV, AM-FM, 201 NLRB No.

113, and Stoner Rubber Company, Inc,, 123 NLRB 1440,

to support his conclusion that the Respondent had a good-

faith doubt of the Union’s majority status. We find that

such reliance is misplaced in view of the fact that those

two cases can clearly be distinguished from the instant

case. Thus, in Taft, the conclusion that the employer

had a sufficient basis for doubt of the union’s majority

status was reached after a consideration of a number of

objective factors, including an employee poll which showed

A25

that the union did not have majority support, some

expression of employee dissatisfaction with the union, the

fact that the union had been certified for more than 20

years and had never negotiated a contract with the em-

ployer, employee turnover, and the fact that the employer

had been engaged in continuous good-faith bargaining for

4 years in an attempt to negotiate a contract. None of

these factors is present in the instant case except for

turnover. Also, in the Taft decision, the Board stated

that the prior Board Order was “extremely narrow in

scope . . . and would not be apt to have detrimental

or lasting effects upon employees in the unit.” In the

instant case, however, the three prior Board Orders and

court decrees are broad in scope and it cannot be said

that the payment of a total of approximately $30,000 to

past and present unit employees as a result of Respondent’s

prior violations of the Act would not be apt to have lasting

effects upon employees in the unit, at least until a reason-

able time after the payments are made to the employees.

Further, in the Taft case, the Board placed some re-

liance on the fact that a voluntary poll of employees was

taken, the results of which showed that the union therein

did not have majority support. Based on the above facts,

it is clear that the objective considerations in Taft were

much broader than those in this case.

Prior unremedied unfair labor practices preclude an

employer from questioning the majority status of the union.

C & C Plywood Corporation and Veneers, Inc., 163 NLRB

1022; Miami Coca-Cola Bottling Co. d/b/a Key West

Coca-Cola Bottling Co., 150 NLRB 892. As stated in Taft,

however, the nature of the unremedied violation is a factor

to be considered.

With respect to the Stoner case, the facts there were

also quite different from those in the instant case. There,

enact acacia ae ee

A26

the union had won an election by only a small majority

14 months prior to the withdrawal of recognition. A strike

had been in progress approximately 5 months during which

there had been no bargaining meetings and the union

had not communicated with the respondent for a period

of 3 months. On the date of withdrawal of recognition,

the plant was operating with a complement of 18 per-

manent replacements for strikers and a fairly high per-

centage of strikers who had crossed the picket line to

return to work. In the instant case, the Union won the

original election by a much larger percentage than did

the union in the Stoner case. Also at the time of Respon-

dent’s withdrawal of recognition, the strike was over, un-

like the Stoner case where the strike was continuing. Fi-

nally, contrary to the facts in Stoner, here, just prior

to the withdrawal of recognition, there had been a great

deal of contact between the parties, and the Union had

been making every effort to sit down at the bargaining

table with the Respondent although such bargaining had

been successfully avoided in bad faith by the Respondent

for approximately 5 months. Thus, the facts presented

here are quite different from the facts in Stoner. As

the Board has held on several occasions, the return of

an employee to work by crossing a picket line during

a strike, even an economic strike, does not give rise to

a presumption that such action demonstrates a rejection

of the union as the employee’s bargaining representative.

See Frick Company, 175 NLRB 233; Palmer Asbestos &

Rubber Corporation, 160 NLRB 723; and Medo Photo Sup-

ply Corp. v. N.L.R.B., 321 U.S. 678, 687 (1944). Thus,

without the additional facts present in the Stoner case,

no conclusion can be reached that those employees cross-

ing the picket lines in the instant case were abandoning

their support of the Union.

A27

Based on the above, it is clear that the Respondent

has not established the existence of objective facts estab-

lishing a reasonable basis for a good-faith doubt of the

Union’s majority status as of August 1972, when it with-

drew recognition from the Charging Party. It is obvious

that the claim of such doubt of the Union’s majority status

was an afterthought in response to the charge filed by

the Union on August 3, 1972, and merely constituted an-

other effort by the Respondent to avoid the possibility of

entering into an agreement with the Charging Party. This

is clear from the fact that during the critical negotiating

sessions involved herein and following them up until Au-

gust 11, 1972, the Respondent had never made a claim

to the Union that it doubted its majority status even though

the factors upon which it relied to establish the alleged

doubt in this case were well known to the Respondent

during all critical times herein.

Although the Administrative Law Judge found it un-

necessary to rule on the Respondent’s contention that an

impasse was reached at the conclusion of the February

18, 1972, meeting, we find this contention lacking in merit.

The record evidence shows that there was considerable

movement by the parties at that bargaining session; that

there was agreement on items that had been in conten-

tion for years; and that there was even movement in

bargaining positions on the two items that remained open.

The evidence established that at no time in the history

of this bargaining relationship have the parties been so

close to reaching an agreement.

Taking into account all the objective considerations

on which the Respondent relies, we find that they are

insufficient to demonstrate that the Respondent had rea-

sonable grounds for believing that the Union no longer

commanded majority employee support at the time of its

A28

refusal to bargain. This, coupled with the fact that the

Respondent made clear when it refused to bargain that

it did not want to deal further with the Union, i.e., it

is not obligated to continue a “fruitless marathon of bar-

gaining,” leads us to the conclusion that the Respondent’s

asserted doubt of majority lacked sufficient basis to justify

its refusal to bargain. We conclude from Respondent’s

conduct in delaying further negotiations by its delay in

answering the communications of Scales to resume bargain-

ing, its admitted statement that an agreement was close

at hand, and its unsupportable position that an impasse

was reached, that the Respondent was not bargaining in

good faith.®

Accordingly, we find that the Union at all times ma-

terial herein was, and now is, the exclusive representative

by virtue of Section 9(a) of the Act of the Respondent’s

employees in the appropriate unit described in footnote

1, above, and that the Respondent, by its refusal to bar-

gain with the Union on August 11, 1972, and thereafter,

violated Section 8 (a) (5) and (1) of the Act, thereby en-

gaging in unfair labor practices affecting commerce within

the meaning of Section 2 (6) and (7) of the Act.

The Remedy

Having found that Respondent has engaged in unfair

labor practices proscribed by Section 8(a)(5) and (1) of

the Act, we shall order it to cease and desist therefrom

and take certain affirmative action designed to effectuate

the policies of the Act.

6. Because the Administrative Law Judge based his finding

that the General Counsel has failed to prove that since on or

upon, as promised by Respondent” on credibility, we are reluctant

to disturb this finding.

A29

Having found that the Respondent unlawfully refused

to bargain with the Union as the exclusive bargaining

representative of the employees in the appropriate unit

described in footnote 1, above, we shall order it do so,

upen request, and, if an agreement is reached, to embody

the agreement in a signed contract.”

Conclusions of Law

1. The Respondent is an employer engaged in com-

merce with the meaning of the Act.

2. Communication Workers of America, AFL—CIO,

is a labor organization within the meaning of Section 2(5)

of the Act, and at all times material has been the exclusive

certified representative of unit employees for the purposes

of collective bargaining with respect to rates of pay, wages,

hours of employment, and other terms and conditions of

employment.

3. By failing or refusing to bargain collectively con-

cerning rates of pay, wages, hours of employment, or other

terms and conditions of employment with the certified

representative of the unit employees, Respondent has en-

gaged in unfair labor practices affecting commerce within

the meaning of Section 8(a) (5) and (1) of the Act.

ORDER

Pursuant to Section 10(c) of the National Labor Rela-

tions Act, as amended, the National Labor Relations Board

7. The Charging Party in its brief has specifically requested

that Respondent be ordered to give the Charging Party the option

to begin negotiations at the point where they left off at the end

of the February 18, 1972, meeting with only two issues outstand-

ing, wages and dues checkoff, or to start over from the beginning.

We deem it unnecessary to provide specifically for such an op-

tion in our Order, inasmuch as our Order requires the Respon-

dent, upon request, to bargain in good faith with the Union.

A30

hereby orders that Respondent, King Radio Corporation,

Olathe, Kansas, its officers, agents, Successors, and assigns,

shall:

1. Cease and desist from:

(a) Failing and refusing to bargain collectively con-

cerning rates of pay, Wages, hours of employment, or other

terms and conditions of employment with Communication

Workers of America, AFL—CIO, as the exclusive represen-

tative of its employees in the following appropriate unit:

All production and maintenance employees employed

at the 400 North Rogers Road and 139 South Brock-

way, Olathe, Kansas, plants of King Radio Corporation,

Inc., including plant clericals, but excluding office

clerical employees, accounting department employees,

research and development employees, professional em-

ployees, guards, and Supervisors within the meaning

of the Act.

(b) In any like or related manner interfering with,

restraining, or coercing employees in the exercise of their

rights under Section 7 of the Act.

2. Take the following affirmative action found neces-

Sary to effectuate the purposes of the Act:

(a) Upon request, bargain collectively with the

above-named labor organization as the exclusive represen-

tative of the employees in the above-described appropriate

unit with respect to rates of pay, wages, hours of employ-

ment, and other terms and conditions of employment, and,

if an understanding is reached, embody such understanding

in a written signed agreement.

(b) Post at its plants at 400 North Rogers Road and

139 South Brockway, Olathe, Kansas, copies of the attached

A31

notice marked “Appendix.’’* Copies of said notice, on

forms provided by the Regional Director for Region 17,

after being duly signed by the Respondent’s representative,

shall be posted by it immediately upon receipt thereof,

and be maintained by it for 60 consecutive days thereafter,

in conspicuous places, including all places where notices

to employees are customarily posted. Reasonable steps

shall be taken by the Respondent to insure that said notices

are not altered, defaced, or covered by any other material.

(c) Notify the Regional Director for Region 17, in

writing, within 20 days from the date of this Order, what

steps the Respondent has taken to comply herewith.

IT IS FURTHER ORDERED that the complaint herein

be, and it hereby is, dismissed in as far as it alleges

violations not found herein.

Dated, Washington, D.C., J anuary 22, 1974.

John H. Fanning, Member

Howard Jenkins, Jr., Member

John A. Penello, Member

(Seal) National Labor Relations Board

TIONS BOARD” shall read “POSTED PURSUANT TO A JUDG-

MENT OF THE UNITED STATES COURT OF APPEALS EN-

FORCING AN ORDER OF THE NATIONAL LABOR RELATIONS

BOARD.”

A32

APPENDIX

NOTICE TO EMPLOYEES

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

WE WILL NOT refuse to recognize and bargain

collectively in good faith with Communication Workers

of America, AFL—CIO, as the exclusive representative

of the employees in the appropriate unit stated below.

All production and maintenance employees em-

ployed at 400 North Rogers Road and 139 South

Brockway, Olathe, Kansas, plants of King Radio Cor-

poration, Inc., including office clerical employees,

but excluding accounting department employees, re-

search and development employees, professional em-

ployees, guards, and Supervisors within the meaning

of the Act.

WE WILL NOT in any like or related manner

interfere with, restrain, or coerce employees in the

exercise of their rights under the National Labor Rela-

tions Act.

WE WILL, upon request, recognize and bargain

collectively in good faith with the above-named Union

as the exclusive representative of the employees in

the appropriate unit with respect to wages, hours,

and conditions of employment, and, if an understand-

ing is reached, we will embody such understanding

in a signed agreement.

King Radio Corporation

(Employer)

(Representative) /( Title)

A33

This is an official notice and must not be defaced

by anyone.

This notice must remain posted for 60 consecutive

days from the date of posting and must not be altered,

defaced, or covered by any other material.

Any questions concerning this notice or compliance

with its provisions may be directed to the Board’s Office,

616—Two Gateway Center, Fourth at State, Kansas City,

Kansas 64101, Telephone 816—374—4518.

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

DIVISION OF JUDGES

WASHINGTON, D.C.

Case No. 17-CA-5274

KING RADIO CORPORATION

and

COMMUNICATIONS WORKERS OF AMERICA,

AFL-CIO.

Gerald A. Wacknov, Esq., for the General Counsel.

Robert E. Funk, Jr., Esq., of Little Rock, Arkansas, for

Charging Party Union.

William G. Haynes, Esq., of Topeka, Kansas, for Respon-

dent Company.

DECISION

FRANK H. ITKIN, Administrative Law Judge: This

case was tried at Kansas City, Kansas, on March 1, 1973.

The unfair labor practice charge was filed by the Union

on August 3, 1972. The complaint, which issued on Decem-

A34

ber 22, 1972 and was amended on March 1, 1973, alleges

that Respondent Company violated Sections 8(a)(1) and

(5) of the National Labor Relations Act by failing and

refusing since about February 18, 1972 to furnish the Union

with certain agreed upon contract items as promised by

Respondent and, further, by failing and refusing since

about August 11, 1972 to recognize and bargain with the

Union as the duly certified bargaining representative of

the Company’s employees in an appropriate unit. Respon-

dent, in denying the alleged unfair labor practices, claims

a good faith doubt as to the Union’s continued majority

status.!

Upon the entire record, including my observation of

the witnesses, and after due consideration of the briefs

filed by counsel, I make the following:

Findings of Fact

I. Jurisdiction

The complaint alleges, the answer admits and I find

and conclude that Respondent Company, a corporation of

Kansas, has been engaged in the manufacture of airplane

radios and related items at its two facilities in Olathe,

Kansas; that in the course and conduct of its business

operations Respondent annually purchases materials and

products in excess of $50,000 from suppliers located outside

of the State of Kansas and annually sells goods and prod-

ucts in excess of $50,000 to customers located outside the

State of Kansas; and that Respondent is an employer en-

gaged in commerce within the meaning of Section 2(6)

and (7) of the Act.

1. Alternatively, counsel for Respondent asserts that “a

genuine impasse was * * * reached at the conclusion of the Feb-

ruary 18 meeting * * *” (br. p. 21).

A35

The complaint alleges, the answer admits and I find

and conclude that the Charging Party Union is a labor

organization within the meaning of Section 2(5) of the

Act.

Il. Background; The Prior Proceedings

As stated, the Company manufactures airplane radios

and related items at its two plants in Olathe, Kansas.

The Union began an organizational campaign at the plants

during early March 1966 and requested recognition from

the Company about April 12, 1966; a Board-conducted

representation election was held on June 30, 1966, which

the Union won by a vote of 182 to 114; and the Union

was certified by the Board as the bargaining representa-

tive of the Company’s production and maintenance em-

ployees at the plants on August 19, 1966.2

Thereafter, the Company was involved in three related

unfair labor practice proceedings. In the first proceeding,

166 NLRB 649 which issued on June 30, 1967, the Board

found that the Company violated Section 8(a)(1) of the

Act by counsel’s coercive interrogation of an employee

and by discriminatorily promulgating a no-solicitation rule.

The Board found that the Company violated Section 8 (a)

(5) and (1) of the Act by unilaterally adopting a no-

2. The complaint alleges, the answer admits and I find

and conclude that “all Production and maintenance employees

at the 400 North Rogers Road and 139 South Brockway, Olathe,

A36

talking rule and instituting the use of warning slips, can-

celling payroll deductions for savings bonds, establishing

a mandatory retirement policy and retiring an employee

under that policy, changing plant clericals from weekly

to bi-weekly paydays and by delaying bargaining after

the representation election in order to undermine the

Union. The Board also found that the Company violated

Section 8(a)(3) and (1) of the Act by discharging some

four employees because of their Union activities and by

Suspending an employee for violating the no-solicitation

rule.* The Court of Appeals for the Tenth Circuit sus-

tained the Board’s unfair iabor practice findings and en-

forced its order on J uly 22, 1968, in 398 F. 2d 14.

In another proceeding, 166 NLRB 180 which issued

on June 28, 1967, the Board found that the Company

violated Section 8 (a) ( 1) of the Act by discharging a super-

visor and placing another supervisor on probation because

they gave testimony adverse to the Company in the earlier

proceeding and by placing on probation and discharging

another supervisor because she appeared at the Board

hearing in response to a subpena from the General Coun-

sel.‘ The Court of Appeals also sustained these findings

and enforced the Board’s order on July 22, 1968, in 398

F. 2d 14.

4. The Board’s order directs the Company to cease and desist

from the unfair labor practices found and from in any other

A37

Negotiations between the Company and the Union

commenced during October 1966. In the third proceeding,

172 NLRB 1051 which issued on July 9, 1968, the Board

found that the Company violated Section 8 ( a) (5) and (1)

of the Act by conducting bargaining negotiations without

a sincere desire to reach agreement; by unilaterally in-

stituting wage changes; by contracting out unit work; and

by refusing to supply the Union with relevant informa-

tion pertaining to the contracting out of unit work. The

Board found that the Company violated Section 8(a) (1)

by maintaining and discriminatorily enforcing no-talking

and warning notice rules and by threatening unfair labor

practice strikers with discharge or permanent replacement

if they did not return to work by April 3, 1967.5 The

Tenth Circuit enforced in part the Board’s decision and

order on September 17, 1969, in 416 F. 2d 569. The Court

stated:

7 * +

When this case was here in 398 F. 2d 14, to enforce

an order of the Board, we sustained the Board’s find-

ing to the effect that the no-talking and warning notice

rule was a discriminatorily inspired violation of Sec-

tion 8(a)(1) and (5). The no-talking and warning

notice rule involved here is but a continuation of the

rule formerly condemned both by the Board and this

5. The rd found that the employees’ strike commencing

on March 27,1967, was caused and prolonged by the Company’s

unfair labor practices and by its failure to rectify previous unfair

labor practices.

The Board’s order requires the Company to cease and desist

from the unfair labor practices found; to abrogate the unilaterally

established wage system: to bargain in good faith; to reinstate

upon request all employees who went on strike to their former

or substantially equivalent positions: and to post the required

notice.

A38

Court. We again Sustain the finding and order of

the Board based upon the condemned practice.

This brings us to the unilateral wage changes

in the bargaining unit found to be a Section 8 (a) (5)

and (1) violation. Respondent Suggests that a part

of the wage change was required by the federally

established minimum wage and prompted a good faith

wage increase for al] bargaining unit employees.

This argument seems plausible on its face. But

the Board thought, not without justification, that the

wage changes instituted as they were during negotia-

tions on that very subject, were Suspect of an 8(a)

(5) violation. And when considered with the fact

that the wage increases were inequitably distributed

among the employees in the bargaining unit without

regard to merit, a clear Violation was shown.

* * *

The most then that can be said for respondent’s

Position is that the unilateral wage changes were insti-

tuted after the point of impasse had been reached.

Respondent insists that they were so instituted. The

Board found to the contrary. And we quite agree.

The wage changes were instituted during purported

negotiations concerning that very Subject. And if re-

spondent was not bargaining in fact, it was not bar-

gaining in good faith. And the violation is clearly

manifest.

om * .

The Board found that the strike was an unfair

labor practice strike from its inception and has been

Prolonged by the unfair labor practices of respondent.

A39

And we sustain that finding as supported by the evi-

dence.

« a *

The Board found respondent violated Section 8 (a)

(1) by sending to the striking employees a letter

threatening them with loss of employment and bene-

fits unless they returned to work by a designated

date. Respondent denied the letter was an unfair

labor practice because the strike was economic in na-

ture. This contention has been disposed of by our

characterization of the strike.®

On March 30, 1970, the Supreme Court denied the Com-

pany’s petition for a writ of certiorari, 397 U.S. 1007.

Thereafter, on June 28, 1971, the Board issued an

order in the above proceeding granting a joint motion

for clarification of its previous order. And, on October

7, 1971, the Board issued an order of clarification, reported

at 193 NLRB No. 98. After reciting the disputed portion

of the earlier order and the positions of the parties, the

Board held:

7 * s

We find no justification for reading the Order

in the manner now Suggested by the Respondent. On

the contrary, the Respondent itself previously recog-

nized the Order as demanding what the General Coun-

sel contends it does, for in its brief to the court of

appeals in the instant case the Respondent stated:

cerning the work, in violation of Section 8(a) (5) and (1) * * *”

The Court declined to enforce the Board’s order in this and

related aspects.

A40

The Board’s order apparently intends to require

the Company to reinstitute the Progression increases

of 5 cents for four consecutive months for employees

who were below the $1.40 an hour rate on February

1, 1967, totally disregarding the Company’s increas-

ing those employees from $1.25 to $1.40 an hour,

at the same time granting them an additional 10

cents to $1.50 an hour, after 60 days of employment,

and 5 [cent] increases each 90 days thereafter . ia

We agree that this is the intention of the Board’s

Order and see no reason to construe it otherwise. * * *

The Respondent was directed forthwith to reinstitute

the wage rate progressions in effect prior to February

1, 1967, thereby paying to its employees all increments

‘upward from the minimum wage rates (statutory or

otherwise) that they would have received had the

wage progression system not been unilaterally

changed. The Order did not, as contended by the

General Counsel, either explicitly or implicitly direct

the Respondent to reimburse the employees for any

increments they failed to receive from the time the

progression system was changed unilaterally up to

the time the formula for remedying the unfair labor

practice was set forth by the Board. Instead, the

Board’s Order, in directing reconstitution of the wage

rate progressions forthwith, fixes the date of Respon-

dent’s obligation as of the date of the Order; it con-

templates payment of the increases due under the

reconstituted progression system from the date of the

Order forward, until changed after bargaining as [re-

quired] by the Act. [ Footnote omitted ]

The Board’s order of clarification directs “the Respondent

to reconstitute and restore its wage rate progression in

existenve immediately prior to the changes adopted on

—

A4l

February 1, 1967, such restoration not to be restricted,

limited or diminished by that provision of the [earlier]

order directing Respondent to retain its increased minimum

wage rates.”

III. The Evidence Pertaining To The Company’s

Withdrawal of Recognition From The Union

William L. Brown testified that he acted as negotiator

on behalf of the Union with the Company from about

August 1971 to February 1972. Brown explained that

after he became the Union’s negotiator, he went to Com-

pany Personnel Manager Richard Johnson, “to introduce

[himself] and to assume the responsibilities of bargain-

ing.” According to Brown, Johnson stated that William

G. Haynes, Respondent’s counsel, “was handling the bar-

gaining * * *.” Brown testified that he later telephoned

Haynes in an attempt “to set up an appointment * * *

so we could continue with the bargaining” and, on Novem-

ber 3, 1971, sent Haynes a letter stating in part:

This is a request for future bargaining on contract

between King Radio Corporation and the Communica-

tions Workers of America. I would like to establish

a date that is to our mutual agreement in getting

back to the bargaining table.

7. According to counsel, backpay has not been effected in

the above proceeding and, because of the large number of em-

ployees involved, may amount to $25,000 or upwards. Counsel

for General Counsel asserts in his post-hearing brief (p. 2):

“* * * subject to correction, it now appears that backpay totaling

$25,112.33 is owed to 821 employees and that the interest thereon

to date totals about $4,935.98. How many of the 821 employees

owed backpay are presently in Respondent’s employment is

unknown.” And, on the record before me, it is uncontroverted

that Respondent has complied with the Board’s orders in all other

respects.

A42

I am free for a meeting on the 18th or 19th of No-

vember, 1971. If these dates are agreeable with you

please pick the place and we will be there.

Brown, as he testified, received no response to his letter

and telephoned Haynes approximately three times in a

further attempt to “try to establish an appointment * * *.”

Consequently, on N ovember 19, 1971, Brown sent a letter to

Haynes stating in part:

* A *

Once again I am making a request for future bargain-

ing on a contract between King Corporation and the

Communications Workers of America. I would like

to establish a date that we can get back to the bar-

gaining table.

In a prior request I recommended the 18th or 19th

of November, 1971 which was ignored. Now I would

recommend that you pick a date, place and time for

such bargaining. I am available for daily bargaining

around the clock (24 hours a day) until we can reach an

agreement.

Quite frankly, I am very disappointed in the fact that

you did not return my phone call or answer my letter

dated November 3, 1971. Being new as a Staff Repre-

sentative (no professional) and given a free hand to

negotiate an agreement, I would appreciate any and

all help you might offer me since I have only held

this job two months next week.

~ » .

On December 3, 1971, Haynes wrote Brown in part

as follows:

* * -

A43

I want to apologize for the delay in responding

to your recent letter suggesting dates to resume ne-

gotiations with King Radio Corporation, Inc.

We understood during our last meeting, on Friday,

September 24, 1971, with Mr. Hubbard, that he would

review the Company’s last proposal discussed during

that meeiing and notify me as to whether or not

it was acceptable.

To date, the Company has had no response to

proposals submitted and discussed during the Septem-

ber 24 session and the sessions immediately prior there-

to.

The Company’s negotiating team has been in-

volved in other matters and will not be available to

meet again until either December 16 or December

20, 1971. Prior to meeting, however, we would like

to receive from you in writing your understanding

of agreements previously agreed upon as we are under

the impression that all items have been agreed upon

other than wages. The Company proposed a wage

adjustment during the last session on September 24,

and Mr. Hubbard indicated he preferred not to respond

to the proposal until such time as the Presidential

Freeze was lifted. Now that the Freeze is lifted, it

would seem appropriate for the Union to respond to

the Company’s last wage proposal.

* * *

And, on December 14, 1971, Brown wrote Haynes in part

as follows:

As suggested in your letter of December 3, 1971 to

me we are agreeable to meet on Monday, December

20,1971. Please advise place and time.

A44

The reason for the delay is that I need to include

the changes where possible which you requested.

Changes should be in your office this week.

* * *

Brown testified that he met with Haynes at the Holi-

day Inn on December 20, 1971. Also present were Virginia

Jamison and Wilma Correl, employees of Respondent serv-

ing on the Unicn’s negotiating committee, and Company

Vice-President William Holiday and Personne! Manager

Richard Johnson. The meeting started about 9 a.m. and

ended at noon. Brown recalled that Prior to this meeting

he had prepared a “complete contract proposal” and mailed

copies of the proposal to Haynes in Topeka and to the

Company in Olathe. At the meeting, according to Brown,

the contract proposal was discussed and there was agree-

ment on items contained in the proposal. Brown testified

that “Mr. Haynes wanted to look over [the proposals]

* * * he wanted certain corrections made in the pro-

posals that [Brown] had submitted to [Haynes] and there

was no date agreed upon for a future meeting.” At no

time during this meeting, according to Brown, did Haynes

or any Company representative express a doubt over the

Union’s continued majority status as bargaining representa-

tive.®

Brown testified that about one week later he “had

redrafted the proposed changes [Haynes] had made and

[he] submitted [them] to [Haynes] in Topeka”; that

another bargaining session was scheduled for February

15, 1972; and that Haynes called Brown to change the

scheduled meeting date to February 18, 1972. According

8. Brown testified on cross-examination that “on December

20 the Company and the Union’s negotiating team went through

each and everyone of [the] articles contained in the package

which he proposed and discussed it * * *,”

ee

R |

A45

to Brown, Haynes did not question the Union’s continued

majority status pending the second session.® Brown wrote

Haynes on J anuary 11, 1972, in part as follows:

- * *

Bill, I believe that I have incorporated most all of

the changes that you required in our last bargaining

session on December 22, [ sic] 1971. I feel that with

the understanding in which both sides approached our

last bargaining session, we are only apart on three

Articles—Holidays, Wages and Dues Deduction. If

you can see your way clear for agreement on these

three Articles we have an Agreement.

As you will know after reading this new contract,

I have removed stumbling blocks that have been

around for years. I have also renumbered the Articles

to coincide with your proposals which should help.

I would like to request that, if possible, we sign as

tentatively agreed to any or all Articles so that we

will not have to rehash or keep going over the same

things. I will further state that in the event we cannot

reach agreement on the three Articles mentioned above

at any time in the future before complete agreement

is reached I will tear up or destroy all Articles that

have been tentatively agreed to and start over on

bargaining if you so desire. We need a date and

9. On cross-examination, Brown acknowledged that he as-

sumed responsibility for redrafting the provisions which had

been tentatively agreed upon at the earlier December 20 meeting

and for mailing them to Haynes. Brown acknowledged that pre-

viously he had included in his draft items which in fact had not

been agreed upon although he attempted to reduce to writing

“what [he] understood the parties had tentatively agreed to pre-

viously.” Brown also acknowledged that the Company submitted

to the Union at the subsequent February 18 meeting a “complete

counter-proposal.”

A46

place for our next bargaining session. I will] leave

this up to you if some time soon.

* * *

The February 18 meeting was held at the Company’s

premises. Present for the Union were Brown, Jamison

and Correl. Present for the Company were Haynes, John-

son and Holiday. According to Brown, the parties agreed

upon the following contract items:

Article II. Management’s Rights:

Article III. Hours of Work;

Article IV. Seniority And Loss Of -

ArticleV. Layoffs And Recalls;

Article VII. Leaves Of Absence:

Article VIII. Vacations;

Article IX. Holidays;

Article XV. New Classifications:

Article XVII. Discipline And Discharge;

Article XVIII. No Strike—No Lockout;

Article XX. Arbitration;

Article XXI. Job Vacancies And Transfers;

Article XXIII. Non-Discrimination;

Article XXVI. Sub-Contracting;

Article XXXIII. Duration And Termination.

Brown explained that the above articles had not been

agreed upon at the various bargaining sessions conducted

prior to the February 18 meeting. Brown testified that

items remaining open at the end of the February 18 meet-

ing principally pertained to check-off and wages. Accord-

ing to Brown, the Union had requested a 15 percent wage

increase for all hourly-rated employees for the first year

of the contract: the Company would grant no rate or

A47

pay increase for the first year of the contract and would

grant a 5 percent increase for the second and third years

of the contract. Brown recalled that the item pertaining

to a 5 percent increase for the second and third years

of the contract was also agreed upon at the February

18 meeting.” Further, Brown testified that at the Feb-

ruary 18 meeting, the Union had modified its requested

wage increase during the first year from 15 to 10 per-

cent; Haynes, however, declined to offer any increase dur-

ing the first year. As for check-off, Haynes, according

to Brown’s testimony, would agree to a check-off system

“provided the Union paid * * * 15 percent for each

member’s dues collected.” Brown responded that he

“didn’t have authority to do this * * *.” Haynes “of-

fered [Brown] his phone” to get the authority. Brown,

after speaking on the telephone with his superior, made

“a counter offer [of] two or three cents a card for pro-

cessing and this offer was rejected by Mr. Haynes.” Ac-

cording to Brown, this was the first time the Union had

offered Haynes or Respondent any money for check-off

purposes."

At the close of the February 18 meeting, Brown as-

sertedly apprised Haynes that Haynes “would be dealing

with [Union Representative] Lovett in the future * * *,

[Brown] had returned to the Western Electric Company,

10. At the earlier bargaining session held on December 20,

1971, according to Brown, the Company had “asked [Brown]

to agree to a wage increase for the hourly rated employees * * *

it would have no effect on future bargaining and [ Brown] did

agree to it * * *, this wage increase to be effective the 3rd of

January 1972.” Brown testified that at February 18 meeting,

“based upon this, Mr. Haynes felt that there was no wage increase

due * * * the first year of the new contract.”

11. Brown also testified that at this meeting he had re-

quested a half day holiday for Christmas evening in addition

to the half day which the employees had; Haynes’ “counter pro-

posal was he would give {the Union] a full holiday which was

Veteran’s Day, which the committee accepted.”

A48

[his] permanent job, and * * * [he] would no longer

be representing CWA in this capacity.” Haynes, according

to Brown, “said he would withdraw his offer of the holiday

(see n. 11, Supra) since [Brown] didn’t accept [Haynes’]

proposal of the check-off system and the wage, the total

package * * *” Further, Brown claimed that “Mr.

Haynes wanted minor changes made in the contracts and

he agreed to Mr. Johnson’s Suggestion to retype and submit

the entire contract to the [Union’s] district office in Kan-

sas City for proofreading with no intent of change in

any of these items.” Brown testified that at no time

during the meeting did Haynes or any Company represen-

tative state that they doubted the Union’s majority

status.”

Thereafter, Brown submitted a memorandum to Union

Representative Lovett, dated February 18, 1972, Stating:

* * »

Subject: Bargaining—King Radio Corporation

Final offer made by the Company as of this date

was as follows:

3 year contract.

no raise the first year.

2% 1st anniversary

9% 2nd

15% to activate dues deduction to be paid to the

Company by the Union.

Veterans Day

12. On cross-examination, Brown agreed that Haynes re-

ee to the meeting room shortly after the close of session and

Salad:

"oS the Company wishes to at this time place you on notice

that since no agreement has been reached in full, it desires

to withdraw everything tentatively agreed to.

aes Soa

A49

Final offer made by the Union:

10% Ist year

5% 2nd year

9% 3rd year

Dues deduction and the union will pay .02 per card

per month for processing.

Veterans Day

We are apart on three (3) items—wages, dues deduc-

tion and Veterans Day withdrawn by the company.

All other Articles acceptable.

* * *

Paul F. Scales, a staff representative for the Union,

testified that Brown returned to his position with Western

Electric and, about March 1972, Lovett designated Scales

as the Union’s negotiator with King Radio. Scales testified

that he telephoned Haynes’ office during the early part

of April, 1972, “identified [himself] and informed the

person |who] answered the phone that [he] desired to

talk to Mr. Haynes.” Haynes did not return the call.

Scales, as he testified, called again during early May and

Haynes did not return the call. Scales testified that on

May 22 he spoke on the telephone with Haynes. By letter

dated May 22, 1972, Scales apprised Haynes as follows:

~ * ed

Regarding our telephone conversation Monday, May

22, 1972 concerning the status of contract bargaining

between King Radio Corporation and Communications

Workers of America, I would like to resume talks

as soon as possible.

As we discussed in our telephone conversation, yours

and my calendar were practically full from now until

June 19, 1972. Therefore, I Suggest that we try to

A50

arrange for meetings as soon as possible after June

20, 1972. I will keep my calendar as open as possible

on the assumption we will resume talks soon after

June 20, 1972.

I will be waiting for a projected date from you.

* ~ *

Scales testified that he received no response to his letter

and, on July 17, 1972, wrote Haynes:

* * *

As of this date I have not received any response to

my letter to you dated May 22, 1972 requesting that

we resume contract bargaining between the King

Radio Corporation and the Communications Workers

of America.

I will be available July 25, 27, 28, August 1 and 3,

1972. Perhaps your schedule wil] permit us to meet

on some of the above suggested dates.

I do not object to meeting at the King Radio offices

in Olathe, Kansas if this is your preference.

Scales received no response to his July 17 letter and again

wrote Haynes on July 27, 1972, requesting a response to

his earlier communications.

On August 3, 1972, the Union filed an unfair labor

practice charge against Respondent, claiming a violation

of Section 8(a)(1) and (5) of the Act. On August 11,

1972, Haynes wrote Scales the following letter:

I am sorry for the delay in responding to your

letter dated July 27, 1972, as I have been away from

the office for the past two weeks.

aw atta i

A5l

As you may know, Company representatives have

met with representatives of the Union on approxi-

mately five different occasions for a series of meetings

ranging from five to fifteen meetings during the past

five (5) years, during which time written proposals

and counter-proposals have been exchanged in an ef-

fort to reach an agreement on wages, hours and other

conditions of employment. The last series of meetings

were conducted through November and December of

1971 and January 1972. Although these meetings re-

sulted in agreement on a number of subjects, disagree-

ment remained on others and this disagreement was

never resolved. The Company has not changed its

position on those subjects which were in disagreement

and it has never been advised that the Union has

changed its position. The Company does not believe

that it is obligated to continue a “fruitless marathon

of bargaining” indefinitely, and thus believes it has

met its bargaining obligation.

In the interim, the Company has experienced al-

most 100% turnover in bargaining unit employees and

there is less than 20% of the employees employed

with the Company that were employed in 1966 when

the N.L.R.B. election was conducted. Further, the

number of employees in the bargaining unit has more

than doubled.

Moreover, the Union representation for bargaining

unit employees has been nonexistent except to request

a return to the bargaining table on an intermittent,

almost annual basis, to rediscuss, with no change in

position, subjects which had been previously discussed,

and continue to be in disagreement.

Accordingly, the Company believes it has met its

bargaining obligation. The majority status of the

A52

Union has been affected by the large turnover of em-

ployees as well as the doubling of the work force

within the past year.

Scales replied on August 29, 1972 to Haynes’ letter, stat-

ing in part:

* * >

It is my understanding that the last bargaining ses-

sions between you and Mr. Bill Brown had been very

fruitful, in fact much progress was made. I under-

stand the Company and the Union were apart only

on first year wages and the cost of payroll deduction

of union dues. I also understand from Mr. Brown

that at the last bargaining session, which was held

February 18, 1972, you had agreed to prepare a con-

tract on all items and send to my office for initialing

on all items but the above mentioned items, wages

and payroll deduction of union dues. As of this date,

of course, we have not received the contract from

you.

The Communications Workers of America, AFL-CIO

still is the certified representative of all conventional

production and maintenance employees of King Radio

Corporation, certified by the National Labor Relations

Board. Consequently, you as the bargaining agent

for the company and I, as the bargaining representa-

tive for the union have a responsibility to continue

bargaining until such time as a true stalemate has

been reached. I do not feel that the point has been

reached. I base my thinking on the gains made at

the last session with Mr. Brown. | feel we are close

to a settlement and should again meet at the bargain-

ing table in hopes of consummating an Agreement.

A i: tt a TN il taal

A353

May I hear from you as to a date to continue bar-

gaining.

7 - a

Scales assertedly received no response to the above letter.

Virginia Jamison, an employee of King Radio for eight

years, testified that she attended the February 18 session

as a member of the Union’s bargaining committee. Jami-

son claimed that at the end of the February 18 session

Haynes said that he was going to have the items that

had been agreed upon retyped and he would send a copy

thereof to the bargaining committee.

Jack Lovett testified that he is the Union’s director

for Missouri, Kansas, Arkansas and _ Illinois. Lovett

claimed that prior to February 18, 1972, there was never

an occasion when “everything but two items” had been

agreed upon. Lovett explained that before February 18

there was never agreement on any year’s wages and the

Union had not offered the Company any money for pay-

ment for check-off.

Richard Johnson, the Company’s personnel manager,

identified Respondent’s Exh. 42 as the proposed agreement

submitted by the Company to the Union on December

20, 1971. Johnson testified that on December 20 there

“was a discussion on a contract package that Brown pro-

posed” and there was “also discussion of the contract pack-

age which Respondent proposed.” At the conclusion of

that meeting, according to Johnson, “* * * Mr. Brown

was to summarize all of the discussions on articles and

contract proposals. [Brown] was going to prepare a com-

plete package, a complete proposal, reflecting those things

agreed upon and where there were articles and clauses

not agreed upon, he was to mail it to” the Company.

According to Johnson, Brown “indicated [that] he would

A54

take these [proposals] back and review them as to where

[the parties] stood exactly, and then submit a complete

package.”

Johnson identified Respondent’s Exh. 8 as the proposed

contract which was mailed to the Company by Brown

on February 4, 1972. This proposal was discussed at the

February 18 session. Johnson recalled that the “Preamble”

was acceptable except for some “minor change”; Article

I, Recognition “was agreed to exactly as Mr. Brown had

proposed”; Article II, Management’s Rights “was agreed

to as submitted by the Company”; Article III, Hours of

Work “was agreed to as submitted by Mr. Brown”; Article

IV, Seniority “was agreed to by the parties as submitted

by Mr. Brown”: Article V, Layoffs And Recalls “was

agreed to by the parties”:'* Article VI, Overtime “was

agreed to as submitted” with some change; Article VII,

Leaves of Absence was agreed to;"* Article VIII, Vacations

“was agreed to as proposed by Mr. Brown”;* Article

IX, Holiday, “was agreed to”; Article X, Jury Duty was

agreed upon as proposed by Brown; Article XI, General

Provisions was agreed upon as submitted by Brown; Article

XII, Plant Visitation was agreed upon as submitted by

Brown; Article XIII, Funeral Leave was agreed upon as

submitted by Mr. Brown; Article XIV, Rest Periods was

agreed upon as submitted previously by the Company;

Article XV, New Classifications “was approved as sub-

mitted by Mr. Brown” with “one minor change”; Article

13. Johnson explained that “there was some give and take

and agreement reached on an overtime clause as part of this

14. Johnson explained that “we agreed to take the Union

Proposal, paragraph 4, and added it to our proposal and then

it was agreed to.”

15. Johnson explained that “we were apart on Veteran’s day

and we agreed * * *.”

ee ee me

A55

XVI, Mandatory Retirement was “agreed to as submitted

by Mr. Brown”; Article XVII, Discipline And Discharge

was “agreed to as submitted by Mr. Brown”; Article XVIII .

No-Strike—No-Lockout was “agreed to as submitted by

Mr. Brown”; Article XIX, Grievances was “agreed to as

submitted by Mr. Brown”; Article XX, Arbitration was

agreed upon as submitted by the Company previously;

Article XXI, Job Vacancies and Transfers was “agreed

to as proposed by the Company” previously and as modi-

fied; Article XXII, Call-In Pay was “agreed to as submitted

by Mr. Brown”; Ariicle XXIII, Non-Discrimination was

“agreed to as submitted by Mr. Brown”; Article XXIV,

Rules, Benefits And Privileges was withdrawn by the

Union; Article XXV, Legality Of Contract was “agreed

to as submitted by Mr. Brown”; Article XXVII, Sub-Con-

tracting was “agreed to with one word change * * * as

submitted by Mr. Brown”; and Article XXVIII, Payroll

Deductions was rejected by the Company as proposed by

Brown.

Johnson testified that the Union proposed at the Feb-

ruary 18 session “a 15 percent wage increase now, two

wage reopeners which visualized a three-year contract

* * * 15 percent the first year and one additional

holiday and dues check off.” According to Johnson, the

Company countered by proposing “current wages the first

year of a three-year contract, a 5 percent increase on

the second anniversary of the contract.” Later during

this session, according to Johnson, the Union proposed

a 10 percent wage increase the first year, a 5 percent

wage increase on the first anniversary date of the con-

tract, a 5 percent increase on the second anniversary date,

an additional one half day holiday and dues check-off.

Johnson testified that the Company “had a caucus” and

A56

made a counter proposal, stating: “This is our final offer.”

The Company proposed:

* * * zero percent increase the first year, *° °° @

9 percent increase the second year, a 5 percent in-

crease the third year an additional paid holiday the

third year, and no dues deduction.

Johnson recalled that Haynes then said:

“It seems we were so close together and so close

to reaching a contract,” and suggested [Brown] call

his office to see if he could agree to our last proposal,

and Mr. Brown went to [Johnson’s] office * * * and

called his office * * *.

Brown later returned to the negotiation room and

proposed:

A 10 percent increase the first year, 2 cents per card

per dues check-off, 5 percent increase the second year

and a 5 percent increase the third year, plus an addi-

tional holiday.

The Company, in response, proposed:

* * * no increase the first year, a 5 percent [in-

crease] the second year, 5 percent the third year,

plus an additional holiday, and a 15 percent charge

for dues deduction.

Brown assertedly “rejected that proposal” and stated: “he

was sorry we could not get together and he was returning

to Western Electric * * * he enjoyed meeting and work-

ing with us, but we couldn’t reach an agreement.”"® Ac-

16. Brown had testified that at the February 18 meeting,

his “last proposal was to live within the guidelines of the Admin-

istration on the wage-price freeze” which would have been 5.5

percent. He explained:

(Continued on following page)

oe a

Oe ee ee eee

A57

cording to Johnson, Haynes then said to Brown:

“* * * since we couldn’t get together the Company

was withdrawing all offers and proposals and specifically

mentioned the dues check-off and Mr. Brown said yes,

he understood, and he was doing the same thing on behalf

of the Union.”

Johnson testified that “to the best of [his] knowledge

and belief, after that meeting, the Company heard from

the Union more than four months later,” in late June

1972. When asked by counsel for Respondent: “At the

conclusion of the meeting was a statement made by Mr.

Haynes that he would reduce to writing a contract as

agreed upon arid submit it to the Union,” Johnson replied:

“I did not hear that statement made.” Johnson explained

that the February 18 meeting “was adjourned with no

future meeting scheduled or any provisions made for sched-

uling future meetings.”

In addition, Johnson testified with respect to the Com-

pany’s turnover in personnel for the years 1967 through

1972. Johnson stated: “Our turnover rate has always

been extremely high in hourly classifications” which in-

cludes unit personnel. Johnson identified Respondent’s

Exh. 44 which shows “the number of people employed

and the number of people terminated in the hourly classifi-

cations which is the bargaining unit * * *,” as follows:

Footnote Continued—

I was hanging on the 10 percent [proposal] knowing I would

have to live within the guidelines of the wage-price board and

we discussed this, touched on it, with Mr. Haynes * * * I just

mentioned it to him * * *. I said I would be bound to the

5.5 percent. * * * [Haynes] told me there would be no in-

crease the first year of the contract.

Johnson testified that he “did not hear such a statement”

made at the February 18 session.

A358

HOURLY EMPLOYEES

JAN. ’67 TO DEC. 31, 1972

KING RADIO CORP.

Employed Terminated

1967 593* 371

1968 702 554

1969 580 504

1970 208 353

1971 558 453

1972 1573 1188

4,214 3,423

*Does not include Jan. ’67

It was stipulated by the parties that there were 343 eligible

voters in the unit during the June 1966 election and, as

noted, there were 182 votes cast for the Union and 114

against it with 3 void ballots and 26 challenged ballots.

Johnson recalled that beginning in February 1968 the Com-

pany began preparing weekly reports on the number of

employees in each classification. Johnson identified Re-

spondent’s Exh. 46, which purportedly indicates, inter alia,

that “on August 9, 1972 [the Company] had 876 hourly

employees” who were “employed within the bargaining

unit.”

Johnson noted that the strike referred to above started

on March 27, 1967 and “most of the employees who were

on strike and applied for reinstatement returned” “June

21, 1972.” Johnson identified Respondent’s Exh. 46 which

lists 39 persons who had been employed by the Company

prior to the strike and returned to work about June 21,

June 28 and July 17, 1972. Johnson also identified Re-

spondent’s Exh. 47 as a list of 19 employees who re-

titties nd ee ee

Pe te mele A Hil shy ahh ates -

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ASR ae eh ence iat

A59

signed during the strike. Johnson also identified Re-

spondent’s Exh. 48 as a list of 34 employees who returned

to work during the strike. And, Johnson identified Re-

spondent’s Exh. 49 as a list of 24 employees who returned

from the strike and are presently employed by the Com-

pany, at least as of August 11, 1972.17 Johnson testified

that on February 22, 1973, there were in fact over 1000

employees employed in the bargaining unit. Johnson testi-

fied that the Company’s questioning the majority status

of the Union “was based upon the turn-over of per-

sonnel * * * the increase of the work complement in

the bargaining unit * * * plus the fact we had ob-

served or seen or heard of absolutely no union activity

in the plant.” Johnson claimed that “annually since

1967” the Company has not “been notified as to local

representation within the plant,” however, the Company

has “recently been notified of a change in local repre-

sentation in the plant.” Johnson testified that “since

March 1967 [he could] recall one visit by the Local Union

President and that was in 1971 * * *.”"8

The parties, according to Johnson, had bargaining ses-

sions on October 9, October 22, November 19, November

20, December 5, December 6, December 10, December 23,

December 30, 1968; January 9, May 14, December 30, 1969;

January 27, February 9, February 10, February 11, Febru-

ary 12, 1970; August 19, August 24, August 27, September

24, December 20, 1971; and February 18, 1972. There

were also bargaining sessions between certification and

October 9, 1968 (See Section II, supra.) On cross-examina-

tion, Johnson acknowledged that the February 18, 1972

17. Johnson explained that 2 of the 24 were first hired after

the election.

18. Johnson acknowledged that during the strike employees

carried picket signs at the plants.

A60

session “was the very first time throughout the history

of bargaining that second and third year wages were agreed

upon”; “that is first time the Union ever agreed to compen-

sate the Company for dues collection”; and the items open

were the “first year of wages * * * wages, holidays and

dues collections * * *.”

William Holiday, the Company’s Vice-president, testi-

fied that he attended the December 20, 1971 and February

18, 1972 sessions. When asked: “Was there anything said

by Mr. Brown at the February 18 meeting related to the

d¥2 percent Wage Board guide line?”, he responded: “To

the best of my recollection, there was not.” When asked:

“Was there anything said by Mr. Brown at that meeting

relating to the Company reducing to writing all matters

which had been agreed upon?”’, he replied: “I don’t

recall anything like that”’—he “heard nothing like that

said * * *.” Holiday claimed that he did not hear

Haynes state at the close of the February 18 session “that

he would make a draft of all matters that had been agreed

to and send it to the Union.” On cross-examination, Holi-

day recalled that at “the beginning of the meeting we

discussed drafts and who was going to type drafts.” Holi-

day testified: ‘“* * * I don’t recall that anybody indi-

cated at the conclusion of the meeting there was going

to be any drafts typed up, anything further.” Holiday

also believed that there was a discussion on February

18 during which the Union “said 10 percent or 15 per-

cent [increase] or whatever the law will allow.”

The testimony of the witnesses summarized above is

in large part mutually corroborative and substantiated by

correspondence and related documents. However, insofar

as the testimony stated above of Brown, Scales, Jamison

and Lovett conflicts with the testimony of Johnson and

Holiday, I am persuaded that the testimony of Johnson

Ae tone, -

A61

and Holiday more correctly and accurately reflects the

transactions involved. In this respect, I note that the

above testimony of Johnson and Holiday was in part mu-

tually corroborative, substantiated in large part by General

Counsel’s witnesses and, further, substantiated by the vari-

ous correspondence and related documents.

IV. Discussion

The legal principles applicable to this case were re-

cently restated by the Board in Taft Broadcasting,

WDAF—TV, AM—FM, 201 NLRB No. 113 (1973), as fol-

lows:

* * +

The legal principles relating to withdrawal of recogni-

tion of a bargaining representative are well settled.

Absent special circumstances, a union enjoys an irre-

buttable presumption of majority status for one year

after certification. Thereafter, the presumption con-

tinues but becomes rebuttable upon a sufficient show-

ing to cast serious doubt on the union’s continued

majority status. At that point, the burden shifts to

the General Counsel to prove that, on the critical date,

the union in fact represented a majority of the em-

ployees. (footnotes and citations omitted. )

In Taft Broadcasting, as here, counsel for General Counsel

and Charging Party also contended that the issue of the

Union’s majority status could not be raised because of

the employer’s unremedied unfair labor practices. The

Board, in agreement with the administrative law judge,

stated:

* * x

In refusing to rely solely on a single unremedied unfair

labor practice as a basis for finding the respondent’s

A62

conduct violative of the Act, the administrative law

judge noted that the Board’s order was extremely

narrow in scope * * * and would not be apt to have

detrimental or lasting effects upon employees in the

unit. We find significant, as did the administrative

law judge, that no independent violations of Section

8(a) (1) of the Act or any other violations of the Act

are involved here, that 28 months had elapsed between

respondent’s unilateral action and the withdrawal of

recognition, and that many months of good-faith bar-

gaining took place between the parties during that

period.

The Board, in disagreement with the administrative

law judge, concluded in Taft that respondent employer

had sustained its burden of showing sufficient objective

facts to support its alleged good faith doubt when it with-

drew recognition. Thus, as the Board noted, the admin-

istrative law judge discounted factors relied upon by re-

spondent to rebut the presumption that the union continued

to enjoy majority status such as, for example, “employee

expression of dissatisfaction”, “inactivity of the union at

the station”, “employee turnover,” and an “employee poll.”

The Board held:

* * +

While it is clear * * * that each of the factors

relied on by the respondent standing alone may have

weaknesses as a basis for supporting a good faith

doubt of the union’s continued majority status, we

note that respondent does not rely on any one reason

alone, but rather on all as a whole. The factors relied

on, particularly the employee poll which showed that

sentiment regarding the union was evenly divided,

weakened the presumption that on the critical date

the Union in fact represented a majority of the em-

dai

PA BADE IE RB I eg tl ae ot

A63

ployees. Significantly, the respondent * * * en-

gaged in no independent unfair labor practices and

was dealing with a union which had been certified

more than 20 years previously, and had never nego-

tiated a collective bargaining contract with the respon-

dent. The record supports the finding that the respon-

dent had teen in continuous good-faith bargaining with

the union since 1966 to negotiate a contract. At no

time was the union’s majority affirmatively asserted

by the General Counsel, and in fact from an evalua-

tion of the entire record such majority status would

appear to be in serious doubt.

~ * *

Accordingly, the Board held in Taft that respondent em-

ployer “had sufficient objective grounds for believing

that a majority of the employees no longer desired union

representation” and “since the General Counsel failed to

come forward with evidence that * * * the union in

fact did represent a majority of employees in the unit

* * *,” the complaint was dismissed as without merit.

Applying these principles here, I find and conclude

that Respondent is not barred from Questioning the Charg-

ing Party Union’s majority status because of unremedied

unfair labor practices. It is undisputed that Respondent

fully complied with the Board’s two 1967 orders after

court enforcement (See Section II, supra). And, it is

also undisputed that Respondent similarly posted the notice

required by the Board’s 1968 order and thereafter met

with the Union for the purposes of negotiating a collec-

tive bargaining agreement on some 20 or more occasions

during 1968, 1969, 1970, 1971 and 1972. The only subject

remaining unresolved in the Board’s third unfair labor

practice order is computation of backpay and, in view

of the joint motion of the parties for clarification of the

A64

Board’s order and the Board’s order of clarification which

issued on October 7, 1971, I do not regard the alleged

backpay obligation as unremedied unfair labor practices

sufficient to bar the Employer from asserting a good faith

doubt of the Union’s continued majority status. Some

five years have elapsed since Respondent committed unfair

labor practices; Respondent has posted the required notices

and complied in other respects; many months of bargain-

ing have since taken place; and no independent violations

have been alleged and proven.’ Accordingly, I reject

this contention.

The question remains, has Respondent made “a suffi-

cient showing to cast serious doubt on the Union’s con-

tinued majority status.” Taft Broadcasting, supra. I find

and conclude that Respondent, at the time it withdrew

recognition during August 1972, had sufficient objective

grounds for believing that a majority of the employees no

longer desired union representation. Thus, the number

of employees in the bargaining unit on June 30, 1966,

the date of the election, was 343. In 1967, 593 hourly

employees were employed and 371 were terminated. In

1972, 1573 hourly employees were employed and 1188 were

terminated. The total employees employed from 1967

through 1972 was 4214 and the total terminated was 3423.

Moreover, the total number of employees in the bargain-

ing unit was 508 during October 1971, 823 during March

1972, 876 during August 1972, 937 during September 1972,

and about 1054 during February 1973. In addition, 34

of the 343 employees in the unit at the time of the elec-

tion returned to work during the strike; 19 of the 343

resigned during the strike; 39 of the 343 returned to work

19. And, as discussed below, I do not find that Respondent

further violated Section 8(a)(1) and (5) of the Act by refusing

to furnish the Union with certain agreed upon contract items, as

alleged.

ete tes

A65

after the strike; and there were only 22 employees em-

ployed in the bargaining unit who were employed by Re-

spondent on the date of the election.

In sum, the evidence of record establishes that from

the date of the election to August 1972, when recognition

was withdrawn, the size of the unit increased from 343

to 876; there was a turnover of some 4000 employees;

and only 22 of the employees who were employed on

the date of the election remained employed during August

1972. And, these facts must be considered in the context

of an Employer who, as found herein, has engaged in

no subsequent unfair practices and has been engaged in

good faith bargaining with the Union for some five years

to negotiate a contract.

Counsel for General Counsel, quoting from Emerson

Manufacturing Company, 200 NLRB No. 33 (1972), argues

that “the Board has consistently held * * * that em-

ployee turnover is not alone enough to provide a reason-

able basis for concluding that a union has lost its majority

status * * *.”?° However, as the Board held in Taft,

factors such as an “extremely high” employee turnover

may with other factors “cast serious doubt on the Union’s

continued bargaining role * * *.” And, as the Seventh

Circuit stated in N.L.R.B. v. John S. Swift Company, Inc.,

320 F. 2d 342, 345 (C.A. 7, 1962):

* * * Of itself such turnover is no evidence of

loss of majority status by the Union * * * [cita-

tions omitted.] Unlike the instant case where only

a turnover of employees is shown to have existed,

20. In Emerson, the administrative law judge noted that

“Respondent has not shown anything unusual about the Respon-

dent’s hiring practices or the presence of any other special cir-

cumstances that would serve to negate or rebut the normal pre-

sumption” that “new employees will be presumed to support a

union in the same ratio as those whom they replaced.”

A66

the Board, in Stoner |Rubber Company, Inc., 123

NLRB 1440] was speaking in the context of a situation

where the employer had a reasonable basis for good

faith belief that the union no longer represented a

majority on the critical date. * * *”

The Court, in discussing the various objective factors pres-

ent in Stoner, noted, inter alia, that “it was not unreason-

able to assume that the 18 early returning strikers and

18 replacements, all of whom were crossing the picket

lines, were not adherents of the Union * * *.” Of

course, each case must rest on its own facts; however,

I am persuaded that the instant case is more analogous

to Taft and Stoner than to Emerson.*!

21. Counsel for Respondent also cites the Union’s local

inaction and the intervals between bargaining sessions over the

years. I do not regard these factors as pertinent here in view of

the pattern or resumption of bargaining with CWA.

During the hearing, I granted Charging Party Union’s pe-

tition to revoke the subpoena duces tecum issued by Respondent

directing the production of informational records showing, inter

alia, names of employees of King Radio who were members in

good standing in CWA during 1970, 1971 and 1972; the payment

of Union dues by the employees during these years; the attendance

of Union meetings during these years; the minutes of Union

meetings; and cards and other documents signed by employees

for membership in the Union. Since Respondent did not have

this information on or before its withdrawal of recognition

(August 11, 1972), this data does not support its claim of a

good faith doubt on the critical date. Moreover, as the Court

stated in Terrell Machine Co. v. N.L.R.B., 427 F. 2d 1088, 1090

(C.A. 4, 1970):

A showing that less than a majority of the employees in the

bargaining unit were members of the union or paid union

dues was not the equivalent of showing lack of union support.

Manifestly, in the absence of a closed shop agreement * * *

many employees are content neither to join the union nor

to give it financial support but to enjoy the benefits of its

representation. Nonetheless, the union may enjoy their sup-

port, and they may desire continued representation by it.

N.L.R.B. v. Gulfmont Hotel Co., supra. Cf. NLRB. y.

Darlington Veneer Co., 236 F. 2d 85 (4th Cir. 1956).

* * *

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A67

Counsel for Charging Party Union argues, inter alia,

that “Respondent hed never made a claim to the Union

that it doubted its majority status even though the fac-

tors upon which it relied to establish the alleged doubt

in this case were well known to the Respondent during

all critical times herein * * *” (br., p. 13). However,

as found above, turnover of the unit employees substan-

tially increased during 1972; the size of the unit substan-

tially expanded between March 1972 and February 1973;

and “most of the employees who were on strike and applied

for reinstatement returned” during the spring or summer

of 1972. Under all the circumstances, I do not regard

Respondent's failure to assert earlier a doubt of the Union’s

majority status as controlling here.

Accordingly, I find and conclude that, at the time

it withdrew recognition, Respondent had sufficient grounds

for believing that a majority of unit employees no longer

wanted Union representation. General Counsel has not

come forward with any evidence that the Union did repre-

sent a majority of employees. Therefore, I find and con-

clude that Respondent did not violate Section 8(a)(1) and

(5) of the Act as alleged.

Further, I find and conclude that Genera] Counsel

has failed to prove that since about February 18, 1972

Respondent failed and refused “to furnish the Union with

the contract language of items agreed upon, as promised

by Respondent.” I do not credit the testimony of Brown

and Jamison in this respect. I note that at the close

of February 18 meeting, as Brown admitted, Haynes

told Brown that there had to be an agreement on the

total package and “asked [Brown] if he understood

[Haynes] was withdrawing his package and [Brown]

said yes, I understand * * *.”22 Under the circum-

22. Brown added that he “also informed [Haynes] future

bargaining would be with Lovett.”

A68

stances, I am not persuaded that Haynes or his people

also promised to furnish the Union with contract language

of items agreed upon.**

V. Conclusions of Law

1. Respondent King Radio Corporation is, and at all

times material has been, an employer engaged in commerce

within the meaning of Section 2(6) and (7) of the Act.

2. Charging Party Communications Workers of

America, AFL-CIO, is a labor organization within the

meaning of Section 2(5) of the Act.

3. The General Counsel has not shown by a prepon-

derance of the evidence that Respondent violated Section

8(a)(1) and (5) of the Act as alleged in the complaint,

as amended.

RECOMMENDED ORDER“

I recommend that the complaint as amended be dis-

missed in its entirety.

Dated at Washington, D. C.

/S/ Frank H. Itkin

Frank H. Itkin

Administrative Law Judge

23. I note that Respondent, in withdrawing recognition, also

claims a genuine impasse. It is unnecessary for me to reach this

issue. However, I would find and conclude that, in view of

the substantial progress made at the December 20 and February

18 sessions (see Section III above), there was no genuine impasse

as asserted by Respondent. Cf. Industrial Union of Marine and

Shipbuilding Workers etc. v. N.L.R.B., 320 F. 2d 615, 622 (C.A.

3, 1963).

24. In the event no exceptions are filed as provided by Sec-

tion 102.46 of the Rules and Regulations of the National Labor

Relations Board, the findings, conclusions, and recommended

Order herein shall, as provided in Section 102.48 of the Rules and

Regulations, be adopted by the Board and become its findings,

conclusions, and order, and all objections thereto shall be deemed

waived for all purposes.

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A69

APPENDIX D

Relevant Provisions of the National Labor

Relations Act

SEC. 8. (a) It shall be an unfair labor practice for

an employer—

(1) to interfere with, restrain, or coerce employees

in the exercise of the rights guaranteed in sec-

tion 7.

SEC. 8. (a) It shall be an unfair labor practice for

an employer—

(5) to refuse to bargain collectively with the repre-

sentatives of his employees, subject to the pro-

visions of section 9(a).

SEC. 8. (d) For the purposes of this section, to

bargain collectively is the performance of the mutual

obligation of the employer and the representative of the

employees to meet at reasonable times and confer in good

faith with respect to wages, hours and other terms and

conditions of employment, or the negotiation of an agree-

ment, or any question arising thereunder, and the execution

of a written contract incorporating any agreement reached

if requested by either party, but such obligation does not

compel either party to agree to a proposal or require

the making of a concession: Provided, That where there

is in effect a collective-bargaining contract covering em-

ployees in an industry affecting commerce, the duty to

bargain collectively shall also mean that no party to such

contract shall terminate or modify such contract, unless

the party desiring such termination or modification—

AT70

(1) serves a written notice upon the other party to

the contract of the proposed termination or modi-

fication sixty days prior to the expiration date

thereof, or in the event such contract contains

no expiration date, sixty days prior to the time

it is proposed to make such termination or modi-

fication;

(2) offers to meet and confer with the other party

for the purpose of negotiating a new contract or

a contract containing the proposed modifications;

(3) notifies the Federal Mediation and Conciliation

Service within thirty days after such notice of

the existence of a dispute, and simultaneously

therewith notifies any State or Territorial agency

established to mediate and conciliate disputes with-

in the State or Territory where the dispute oc-

curred, provided no agreement has been reached

by that time; and

(4) continues in full force and effect, without resort-

ing to strike or lockout, all the terms and condi-

tions of the existing contract for a period of sixty

days after such notice is given or until the expira-

tion date of such contract, whichever occurs later:

The duties imposed upon employer, employees, and labor

organizations by paragraphs (2), (3), and (4) shall be-

come inapplicable upon an intervening certification of the

Board, under which the labor organization or individual,

which is a party to the contract, has been superseded

as or ceased to be the representative of the employees

subject to the provisions of section 9(a), and the duties so

imposed shall not be construed as requiring either party

to discuss or agree to any modification of the terms and

conditions contained in a contract for a fixed period, if

:

|

’

:

a

q

;

}

1

:

A7l1

such modification is to become effective before such terms

and conditions can be reopened under the provisions of

the contract. Any employee who engages in a strike within

the sixty-day period specified in this subsection shall lose

his status as an employee of the employer engaged in

the particular labor dispute, for the purposes of sections

8, 9, and 10 of this Act, as amended, but such loss of

status for such employee shall terminate if and when he

is reemployed by such employer.

SEC. 10. (e) The Board shall have the power to

petition any court of appeals of the United States, or

if all the courts of appeals to which application may be

made are in vacation, any district court of the United

States, within any circuit or district, respectively, wherein

the unfair labor practice in question occurred or wherein

such person resides or transacts business, for the enforce-

ment of such order and for appropriate temporary relief

or restraining order, and shall file in the court the record

in the proceedings, as provided in section 2112 of title

28, United States Code. Upon the filing of such petition,

the court shall cause notice thereof to be served upon

such person, and thereupon shall have jurisdiction of the

proceeding and of the question determined therein, and

shall have power to grant such temporary relief or restrain-

ing order as it deems just and proper, and to make and

enter a decree enforcing, modifying, and enforcing as so

modified, or setting aside in whole or in part the order

of the Board. No objection that has not been urged be-

fore the Board, its member, agent, or agency, shall be

considered by the court, unless the failure or neglect to

urge such objection shall be excused because of extraordi-

nary circumstances. The findings of the Board with re-

spect to questions of fact if supported by substantia! evi-

dence on the record considered as a whole shall be con-

AT72

clusive. If either party shall apply to the court for leave

to adduce additional evidence and shall show to the sat-

isfaction of the court that such additional evidence is ma-

terial and that there were reasonable grounds for the

failure to adduce such evidence in the hearing before

the Board, its member, agent, or agency, the court may

order such additional evidence to be taken before the

Board, its member, agent, or agency, and to be made

a part of the record. The Board may modify its findings

as to the facts, or make new findings, by reason of addi-

tional evidence so taken and filed, and it shall file such

modified or new findings, which findings with respect

to questions of fact if supported by substantial evidence

on the record considered as a whole shall be conclusive,

and shall file its recommendations, if any, for the modifica-

tion or setting aside of its original order. Upon the filing

of the record with it the jurisdiction of the court shall

be exclusive and its judgment and decree shall be final,

except that the same shall be subject to review by the

appropriate United States court of appeals if application

was made to the district court as hereinabove provided,

and by the Supreme Court of the United States upon

writ of certiorari or certification as provided in section

1254 of title 28.