King Radio Corp., Inc.

180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD King Radio Corporation, Inc. and Communications Workers of America. AFL-CIO. Case 17-CA-3123 June 28,1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On May 4, 1967, Trial Examiner Marion C. Lad- wig issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. al The Board has reviewed the rulings of the Tri Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. I ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the Respondent, King Radio Corpora- tion, Inc., Olathe, Kansas, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. i We adopt the Trial Examiner's finding that Respondent violated Sec- tion 8(a)(1) of the Act, by the conduct set forth in this Decision. It is al- leged in the instant complaint that Respondent by this same conduct also violated Sec. 8(a)(4) of the Act. However, as the remedy for such a finding would not differ from that already accorded herein, it is unnecessary for us to pass upon the latter allegation. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MARION C. LADWIG, Trial Examiner: On January 19, 1967,' 1 day after the close of the hearing in an earlier proceeding (in which the same Respondent, King Radio , Unless otherwise indicated, all dates refer to the period from June 1966 to March 1967. Corporation, Inc., herein called the Company, was charged with violations of Section 8(a)(1), (3), and (5) of the Act), the Company discharged one supervisor and placed on probation two other supervisors , all three of whom had been subpenaed by the General Counsel to ap- pear as witnesses in the earlier case. This proceeding was heard at Kansas City, Missouri, on February 28 and March 1 , pursuant to a new charge filed by Communica- tions Workers of America, AFL-CIO, herein called the Union, on January 20 and amended on January 26 and February 23, and pursuant to a complaint issued on January 26 and amended at the hearing.2 The primary issue is whether the actions taken by the Company against the General Counsel 's witnesses violated Section 8(a)(1) of the National Relations Act, as amended. Upon the entire record, including my observation of the demeanor of the witnesses , and after due considera- tion of the briefs filed by the General Counsel and the Company, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY AND THE LABOR OR- GANIZATION INVOLVED The Company is a Kansas corporation, which is en- gaged in the manufacture of airplane radios and related items at the Olathe, Kansas, plants, where it annually receives materials and products valued in excess of $50,000 directly from outside that State, and from where it annually ships goods and products valued in excess of $50,000 directly to customers outside that State. The Company admits, and I find, that it is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. The Union is a labor organization within the mean- ing of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Until the hearing in the prior case, the supervisory status of the production supervisors was in dispute. Be- fore the hearing began on December 19, the Company had reclassified them, changing their title from production "lead girl" to production supervisor, and had given them training as supervisors, issued them supervisory badges -to wear, and increased their wages from $2 to $2.25 an hour. Still contending that the production supervisors did not have actual supervisory authority, the General Coun- sel subpenaed three of them, Marlene Jones, Martha Walker, and Naomi Cesar, to testify. All three of them appeared at the hearing on December 19. After my ruling on December 22 that the production supervisors pos- sessed supervisory. authority, the General Counsel did not call Mrs. Cesar to the stand, but called Mrs. Jones and Mrs. Walker later that day to testify on other issues. Mrs. Jones gave positive testimony about the Company's 2 This case was consolidated for hearing with the earlier case, 17-CA-3007, until the Company announced at the reopened hearing on February 28 that it intended to request a 10-day postponement if the com- plaint was amended at the hearing , alleging a subsequent constructive discharge of one of the supervisors placed on probation . After the con- solidation order was revoked to avoid an inordinate delay in the decision of the earlier case, the hearing on the amended complaint in this separate case proceeded without objection . The evidence in the earlier case, in- volving the same parties , was incorporated by reference. 166 NLRB No. 10 KING RADIO CORPORATION, INC. disparate enforcement of the new no-solicitation rule between June 22, when the rule was promulgated and June 30. when the election was held. She and Mrs. Walker both testified against the Company's position concerning the no-talking rule promulgated by the Com- pany after the election. The hearing adjourned on December 23 and resumed on January 16, for 3 addi- tional days of testimony. On Thursday, January 19, after the hearing closed on January 18. Vice President James Harris announced to the supervison that he was discharging Mrs. Jones. and placing six of the other production supervisors, including Mrs. Walker and Mrs. Cesar, on probation. The Com- pany had never before placed any lead girls or super- visors on probation. B. Conflicting Testimony Production Superintendent Allene Bible and Vice President Harris gave directly conflicting testimony con- cerning the decision to take the action against the pro- duction supervisors. When Mrs. Bible was called as the Company's first defense witness on February 28, she testified that during January and February. production had "improved tre- mendously," with the production girls working "faster and better." However, she testified that on the morning of January 19, Harris called for a meeting of the produc- tion supervisors, and that the following transpired: Q. Did you have an opportunity to visit with him before he called the meeting? A. No. He told me who to call, and I called them. Q. Did you have knowledge at the time of why the meeting was being called? A. Yes, I did. Q. And how did you become aware of that? A. He told me that we had to do something to get our supervisory people straightened out. Q. (By Mr. Haynes) Did he say anything else to you? A. No. I don't think so. She further testified that in the group meeting (which was held in two parts, around 10 o'clock) Harris told the production supervisors that they "either perform their du- ties or go some place else," and that "the production was going down and the people were all in uproar and we had to do something to settle them down." Then, after this group meeting, "we called seven girls in individually." The next day at the hearing, Mrs. Bible repeated her testimony about increased production, stating that it was "up substantially" since the first of 1967, but began changing her testimony about conferring with Vice Pres- ident Harris before the meeting. She testified that Harris "told me that he wanted to talk to these particular girls in- dividually after we talked to them in a group," but then testified that she took part in choosing the seven girls. Harris having asked her "which ones I felt that was not performing their duties as they should." (From her demeanor on the stand, it seemed that she was endeavor- ing to conceal what actually had happened.) The Company's next witness was Assistant Superin- tendent Roberta Johnson, who supervised all three of the production supervisors involved herein. She credibly 181 testified that she first heard about the action against the supervisors that morning about 9:30 when Harris, in a "superintendent meeting," said "the girls he did not think were doing their jobs and he told us about some of the things that he had observed and that he was going to put them on probation and he was going to terminate Marlene [Jones] because of her attitude." This meeting, revealed by Mrs. Johnson on cross-examination, was held before Harris talked to the production supervisors in groups. (Neither Mrs. Bible nor Harris mentioned this earlier meeting in which Harris announced his decision, rather than discussing any production or supervisory problems with Mrs. Johnson, and presumably other assistant su- perintendents, who directly supervised the production su- pervisors and production employees in the production area.) When Harris (the Company's only other witness) was called, he did not produce any records to reslove the con- flict between Mrs. Bible's testimony that production was up, and Harris' statement to the production supervisors that production was going down. (Noting earlier in the hearing such a possible inconsistency, I had indicated that production records might be of some value, and the company counsel had responded, "We don't have any ob- jection. We can produce the records." The Company made no explanation for not doing so.) Concerning his conference with Mrs. Bible the morning after the close of the previous hearing. Harris was unable to give a single, consistent account of what happened. He first testified that he guessed his final decision to discharge Mrs. Jones was made "in my own mind" the morning of January 19. and that Mrs. Bible and he discussed it briefly that morning. But when he was asked repeatedly to testify what was said in this conversation, he gave widely varying answers: Q. (By Mr. Haynes) Where did the conversation start? A. The conversation was in my office. TRIAL EXAMINER: About what time? THE WITNESS: Oh, between 8 and 9, I would say, on the morning of the 19th. TRIAL EXAMINER: Now give us the conversation. THE WITNESS: The conversation, that I felt because of past reports that I had had from [assistant superintendent] Roberta Johnson and in occasional conversation in discussing how things were going and with Mrs. Bible and reports I had heard from her, because I talk to her daily every day, every morning, about what is going on in the plant, that I. in my opinion, that it was best, that we terminate Marlene Jones. Q. (By Mr. Haynes) What did Mrs. Bible say, if anything? A. She did not disagree. Thereafter he testified that he and Mrs. Bible discussed "all seven girls at the time we sat down"- Q. Can you recall anything that you said and Mrs. Bible said with regard to the other six girls? A. Well, we discussed each of the girls as to what observations we individually had had, what we had heard from the assistant superintendents, and, in general, what their performance had been. TRIAL EXAMINER: How did that discussion start? THE WITNESS: I asked Mrs. Bible to come in my office-we are going back just where I started be- fore. I had been reviewing our performance through January and it did not appear as though we were 308-976 0-70-13 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD going to meet all of the schedules that we had established for the month. This was the middle of the month. This was time to do something about it. Now, what can we do to insure that we make the schedules because it is pretty important to me that we do. We have budgets that we have to stay within. After being asked several times again what he and Mrs. Bible said in their conference, Harris testified that they first discussed the various production lines which "were ahead or behind schedule at that point," and "In discussing these products when we were going through here, some of the seven girls' names came up": Q. (By Mr. Haynes) Yes, Mr. Harris, please, to the best of your ability and to the best of your recol- lection, just testify as to who said what, whether it was you or Mrs. Bible and then what was said, just like you were having a conversation with her. A. Well, the ones that were behind schedule, the question would be asked, is it because of material or is it because of supervision, something that we are not doing out there .... Or was it something that we were waiting on from one of the other groups, manu- facturing services, or was it something that we were waiting for from pretest out of the test department before we could finish the units. These are all questions that have to be answered. In sharp contrast to Mrs. Bible's initial testimony (that she did not have an opportunity to visit with Harris that morning before the meeting with the production super- visors, and that Harris "told me that we had to do something to get our supervisory people straightened out"). Harris was testifying that they were engaged in a lengthy discussion of production problems that morning, and the names of these seven supervisors came up in con- nection with that discussion. (It seemed obvious to me, while observing Harris testify, that he was attempting to theorize what might have happened rather than simply relating what had transpired that morning, a few weeks earlier.) The reason for the conflicts in the testimony became apparent when Harris finally testified that he had already discussed with Company Counsel Haynes, during the last week of the previous hearing, "how to get the first line su- pervisors' attention to maintain discipline to get the schedules out so we can deliver the products," and that Harris had decided to take action without consulting his supervisory personnel: Q. Did you discuss with anyone, prior to reaching the conclusion of the probation, what might be done to improve the situation? A. I had consulted briefly with you [Counsel Haynes] and explained to you my predicament. Q. When was that? A. I believe that was-it was during the week -the 19th was Thursday and it was earlier that week, Monday or Tuesday, so that I discussed this again with you. Q. With anyone with the company did you decide, discuss, what might be done to improve the situation with regard to your supervisory people? A. No, it was my problem. The Company's brief adopts as fact Harris' testimony that he and Mrs. Bible were discussing production slow- downs the morning of January 19, and that as the review continued. "Harris and Bible began to agree that some lines were not producing as well as others as a result of failure of supervision to maintain discipline over their girls." The brief ignores the inconsistent earlier testimony by both Harris and Mrs. Bible, the repeated testimony by Mrs. Bible that production was up substantially. and the testimony (hereafter credited) that the line on which production supervisors Jones and Cesar worked was producing its quota. Neither does the brief mention Har- ris' testimony that he had already discussed with Com- pany Counsel Haynes earlier that week the purported problem of lax supervision. which Harris considered was his own problem, not to be discussed with anyone at the Company. Having considered the conflicting testimony by the Company's own witnesses, the failure of the Company to produce its available production records which the com- pany counsel indicated "We can produce," and the fact that both Harris and Mrs. Bible appeared on the stand to be intentionally fabricating testimony about their con- ference on the morning of January 19, I find that these two witnesses were endeavoring to conceal Harris' dis- criminatory motivation in taking the action against the three General Counsel witnesses. Even apart from the pretextual grounds asserted for the individual actions, as discussed below. I draw the inferences from all the above-cited evidence and the circumstances that (1) Har- ris (being advised after my ruling on the supervisory status of the production supervisors that they were not "employees" protected by the Act) decided to take puni- tive action against the three supervisors who had in- dicated their willingness to cooperate with the General Counsel and testify against the Company, and (2) Harris decided to cloak his discriminatory motivation by placing four additional supervisors on probation. without giving any of them any prior warning or any opportunity to cor- rect any deficiency. C. Discharge of Marlene Jones Production Supervisor Jones. who had served as a lead girl and production supervisor for nearly 2 years, and who had been complimented 3 months earlier for doing a good job, credibly testified that when she was discharged on the morning of January 19, her production line was meet- ing its quota and was having very few errors. Yet, when she was called to the conference room after the group meetings were over, Harris told her that they were calling in and putting on probation some of the people "they didn't think were doing their job," and "In your case we are recommending immediate dismissal." She asked why, and Harris said "my attitude wasn't right towards my job," and explained that "I hadn't been trying to keep discipline on the line." In support of the Company's position that Mrs. Jones was not maintaining discipline, the company brief errone- ously states that "The record is replete with evidence that Marlene Jones openly opposed respondent's enforcement of the excessive talking rule." To the contrary, Mrs. Jones had frequently cautioned and given verbal warnings to girls on her production line, and had turned in em- ployees' names to Assistant Production Superintendent Johnson for written warnings. Mrs. Johnson, however, had been quite reluctant to give any written warnings, and Production Superintendent Bible had criticized her for failing to do so. About a week before Mrs. Jones' discharge, Mrs. Jones reported to Mrs. Johnson that she (Mrs. Jones) had warned three girls that she was going to have Mrs. Johnson give them warning slips if they were KING RADIO CORPORATION, INC. not quiet, and the girls "just ignored me." She insisted that Mrs. Johnson issue written warnings, and Mrs. John- son did to two of them. Shortly thereafter. she and Mrs. Johnson talked about the talking problem being "pretty well solved" on that line, by the quitting of one girl who had been an excessive talker, and as a result of the two warning slips, quieting down the other girls. (Mrs. John- son, who testified that Mrs. Jones had her give out the warning notices about January 12 or 13, also testified that as far as Mrs. Jones' actual work was concerned, "I think she did a good job.") Mrs. Jones immediately denied Harris' statement on the morning of January 19 that she had not been trying to enforce the no-talking rule, and told Harris that "Roberta Johnson had given out two warning papers just several days before this on my recommendation." Mrs. Johnson admitted that this was true, yet Harris did not reverse himself, and "just kind of tossed" her final paycheck across the table to her, paying her through noon that day. Her termination letter. mailed later that day, stated that her employment was terminated "for inability to effec- tively perform the duties and responsibilities of a Produc- tion Supervisor." About a month later. on February 20, the Company's personnel director telephoned Mrs. Jones and inquired if she wanted her old job back, with the N LRB determining the question of backpay. She asked "why do they want me back whetthey said before that I wasn't capable of doing a supervisor's job," and he answered, "We need su- pervisors." She agreed to return on March 6, after the hearing. The Company's brief appears to be in error in asserting that Mrs. Jones "was of the opinion that her termination resulted from failing to perform her duties properly, as she testified that she as a supervisor should have been a1= lowed three (3) warning slips to improve herself, the same as non-supervisory employees." [Emphasis suppli- ed. ] The cited testimony reads: Q. If I understand you correctly from your testimony, you really didn't have anyone complain about the manner in which you performed you super- visory work prior to your termination? A. If they were complaining they weren't com- plaining to me. They might have told somebody they were complaining to me but they didn't do it, I don't know. Q. As a matter of fact, no one said anything to you derogatory .. . about the way you had per- formed your supervisory duties? A. No. they didn't. If I wasn't doing the job that I was supposed to be doing, I think they should have called me in and told me before they called me in and fired me. After all, I had been there five years almost. They give better treatment than that to girls on the line. Q. How do you know that? A. Because they were given warning slips and they were allowed to get three warning slips. Q. And you think that a supervisor should have the same treatment? A. I think she is entitled to just as much as the girl on the line. I find that Mrs. Jones was an able, diligent, conscien- tious supervisor, that the grounds cited for her discharge were pertextual. and that she was discharged in reprisal for her adverse testimony in the earlier proceeding. D. Martha Walker Placed on Probation 183 Production Supervisor Walker became a lead girl on April 6, 1965. In October 1966, when she was told about gettting the 25-cent-an-hour raise in pay, the personnel director in the presence of Mrs. Bible informed her. "You have been doing a good job out there." On January 19, without prior warning, Harris had her summoned to the conference room, complained about her "attitude" and not smiling enough, and placed her on a 2-week probation, saying "they would watch every move that I made in those two weeks." Mrs. Bible accused her of not speaking, and claimed that she had previously come into the office to ask about some missing paychecks for two of the girls and had used a belligerent tone of vo- ice. (Mrs. Bible admitted that Mrs. Walker was a good su- pervisor, and that neither she nor Harris had talked to her about her "attitude.") Two weeks later, they called her to the office again, told her that the daily reports they had on her showed she had improved "an awful lot," that they were very pleased with her, and that "if I kept on and I continued to do as good, they wouldn't have to call me in the office again." (Harris and Mrs. Bible likewise called in the other production supervisors who were on proba- tion and told them that they had improved also.) The Company's brief does not state the Company's position regarding Mrs. Walker, except to assert that no prima facie case was established. I discredit Harris' and Mrs. Bible's claim that there was justification for placing Mrs. Walker on probation. and find that the Company's actions were discriminatorily motivated. I note that Mrs. Walker. who appeared to have a good memory, gave a somewhat detailed account of what Har- ris told the group of production supervisors before calling in supervisors individually. She credibly testified that Harris went down the list of supervisory duties, and told them for the first time that "if a girl didn't have any work and nothing to do but pre forming to send her home." (Previously, production employees who were caught up with their work on the line had been returned to the pre-forming table to work.) Then the personnel director, for the first time, told them that "if a girl on the line was not following the rules that we was to tell her to get her coat and go home. suspend her for that day." The General Counsel did not allege these unilateral changes in unit employees' working conditions to be separate violations. E. Constructive Discharge of Naomi Cesar Production Supervisor Cesar had been promoted to lead girl on January 4, 1965. Then she was paid $1.65 an hour. She received a 5-cent raise each 3 months until she reached $2, and received a 25-cent increase about November 1, 1966. She and Production Supervisor Jones together supervised 24 production girls on the line, which was meeting its quota and where, as discussed heretofore, the talking had been largely solved by the quitting of one girl and by the written warning of two other girls about January 12. When Mrs. Cesar returned to work, after appearing at the hearing on December 19 (pursuant to the General Counsel's subpena), she found that the Company began "tightening down." enforcing the no-talking rule more strictly. Then she noticed that she herself was being closely watched. On a number of occasions, upon being 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD called by a girl for help with a problem. she would find either Assistant Production Superintendent Johnson or Production Superintendent Bible standing so closely be- hind her that when she would step back, she would be stepping on them. She would turn around and ask Mrs. Johnson if somebody was doing something wrong, and Mrs. Johnson would say. "No. I was just watching." Or, one occasion, when she accidentally stepped on Mrs. Bi- ble. she told Mrs. Bible, "I am not talking. you have to ex- plain what she wants, to know." Mrs. Bible responded. "Just watch it." and left. Mrs. Cesar had been having trouble with her nerves for some time. In March 1966, she went to Mrs. Bible and re- ported having bad nerves, and Mrs. Bible told her that she would have more help. In September, 2 months after the strict no-talking rule was promulgated, Mrs. Cesar's doc- tor advised her to quit her job. Apparently having to work, she did not do so. but continued going to the doctor for treatments. The Company's conduct toward her after her appearance in the prior hearing aggravated her ner- vous condition, causing her to have to get more frequent treatments from her doctor. Mrs. Cesar's testimony is undenied that when she was placed on probation on January 19, for failing to maintain discipline, and for smiling, laughing, or visiting every time Harris "looked out there." Assistant Production Superin- tendent Johnson came to her defense, saying, Mr. Harris. I don't think you understand at all, she isn't always visit- ing just because she goes to a girl and smiles." Yet Harris said he thought she could do better, and proceeded to place her under probation. "So I quit smiling altogether." Thereafter, according to Mrs. Cesar's credited testimony, the surveillance became worse. Two other assistant production superintendents, as well as Mrs. Johnson and Mrs. Bible, began watching her closely. The climax came on Friday, January 27. when Mrs. Bible called her into the office concerning two or three remarks Mrs. Cesar had made, and cursed her. (One of the in- cidents occurred a week earlier on January 20, when Assistant Superintendent Lorraine Morello asked Mrs. Cesar where Marlene Jones was, "Is she sick?" Mrs. Cesar said, "No, I guess she was fired." Mrs. Morello jumped up and said, "You are kidding, not Marlene Jones." Mrs. Cesar said, "Yes, Marlene Jones.... They will probably get all of us.... Martha [Walker] is going to be fired because she does not smile enough and I am going to be fired because I smile too much.") Mrs. Bible denied that she cursed Mrs. Cesar. but because of the un- trustworthiness of Mrs. Bible and Harris as witnesses, I do not credit any of their testimony which conflicts with the testimony of Mrs. Johnson or the General Counsel's witnesses. The following weekend, Mrs. Cesar was so upset over the way she was being treated that she went on Sunday to the doctor, who again advised her to quit. The next morn- ing, January 30, she applied for work at another com- pany, and quit the following day (in her words) "a ner- vous wreck." The Company's defense, stated in its brief, is that the General Counsel did not prove a prima facie case con- cerning Mrs. Cesar. I do not agree. I find, that Mrs. Cesar was placed on probation because of her willingness to tes- tify on behalf of the General Counsel. I further find that the Company's continued harassment forced her to quit the job. and that she was constructively discharged on January 30, when she missed a half day from working seeking other employment before quitting the following day. F. Concluding Findings The Company argues in its brief that there can be no finding of an 8(a)(1) violation because there is no evidence that the Company's conduct tended to interfere with, restrain, and coerce nonsupervisory employees in their Section 7 rights. To the contrary, I find that the dis- criminatory discharge of Marlene Jones, the discrimina- tory placing of Martha Walker and Naomi Cesar on pro- bation, and the constructive discharge of Mrs. Cesar, because of the adverse testimony given by Mrs. Jones and Mrs. Walker in the prior proceeding, and the willingness of Mrs. Cesar to testify on behalf of the General Counsel in the proceeding, tended to interfere with the vindication of employees' statutory rights before the Board. As held in Better Monkey Grip Company, 115 N LRB 1170, 1171, "rank-and-file employees are entitled to vindicate these [statutory] rights [in Board proceedings] through the testimony of supervisors who have knowledge of the facts without the supervisors risk- ing discharge or other penalty for giving testimony under the Act adverse to their employer." Accord, Oil City Brass Works, 147 NLRB 627, 630. Moreover, upon considering the evidence in the prior hearing (which was incorporated by reference), I find that the Company's previous unlawful conduct tended to cause bargaining unit employees to fear that this reprisal against these three General Counsel witnesses im- mediately after the close of the earlier hearing constituted a continuation of the Company's antiunion campaign, and to fear that their own statutory rights remained injeopar- dy. (As found in the prior proceeding, the Company made unilateral changes in working conditions, delayed bar- gaining, and discharged a number of union supporters after deciding-in a meeting with Counsel Haynes im- mediately after the June 30 election-to undermine the Union and weaken its position in bargaining by "cracking down" on the employees, by discouraging their support of the Union, and by utilizing delays in the representation proceeding to find pretexts for dicimating the ranks of the Union.) CONCLUSIONS OF LAW 1. By discharging Marlene Jones on January 19 for giving adverse testimony in the prior proceeding, the Company engaged in an unfair labor practice affecting commerce within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act. 2. By placing Martha Walker on probation on January 19 for also giving adverse testimony, and by placing Naomi Cesar on probation on January 19 because of her willingness to testify on behalf of the General Counsel, the Company violated Section 8(a)(1) of the Act. 3. By constructively discharging Mrs. Cesar on Janu- ary 30 for the same reason, the Company violated Section 8(a)(1) of the Act. THE REMEDY Having found that the Respondent had committed cer- tain unfair labor practices. I shall recommend that it be ordered to cease and desist from such conduct, and to take certain affirmative action, which I find necessary to KING RADIO CORPORATION, INC. remedy and to remove the effect of the unfair labor prac- tices and to effectuate the policies of the Act. The Respondent having discriminatorily discharged Marlene Jones and Naomi Cesar, and not having rein- stated either of them with backpay at the time of the hear- ing herein. I shall recommend that it be ordered to offer them reinstatement with backpay computed in the manner set forth in F.W. Woolworth Company, 9Q NLRB 289, with interest at 6 percent per annum, as pro- vided in Isis Plumbing & Heating Co., 138 NLRB 716. Because of the serious nature of these continuing unfair labor practices being committed by the Respondent, showing a disregard for the policies of the Act, I shall recommend that it be ordered again to cease and desist from in any manner infringing on the rights guaranteed to its employees by Section 7 of the Act. Accordingly, on the basis of the foregoing findings and conclusions, and on the entire r--cord, I recommend, pur- suant to Section 10(c) of the Act, issuance of the follow- ing: ORDER Respondent, King Radio Corporation, Inc.. its officers. agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging, placing on probation, or otherwise discriminating against supervisors for being witnesses in an NLRB proceeding. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Marlene Jones and Naomi Cesar full rein- statement to their former or substantially equivalent posi- tions, without prejudice to their seniority, their status in the profit-sharing plan. and other rights and privileges. and make them whole in the manner set forth in the sec- tion of the Trial Examiner's Decision entitled "The Remedy." (b) Expunge from its personnel records all reference of production supervisors being placed on probation on January 19. 1967. (c) Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement apon application in accordance with the Selective Service Act and Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its plants in Olathe, Kansas, copies of the attached notice marked "Appendix."3 Copies of such notice, on forms provided by the Regional Director for Region 17, after being duly signed by an authorized representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in con- 185 spicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered. defaced, or covered by any other material. (f) Notify the Regional Director for Region 17, in writ- ing. within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.4 3 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner " in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order." 4 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify the Regional Director for Region 17, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our em- ployees that: WE WILL offer Marlene Jones and Naomi Cesar reinstatement, and pay them for earnings they have lost as a result of our unlawful actions against them. WE WILL NOT discharge, place on probation. or otherwise discriminate against anyone for being a witness in an NLRB hearing. WE WILL cancel all personnel records of produc- tion supervisors being placed on probation on Janu- ary 19, 1967. WE WILL NOT interfere with our employees' ur:ion activities. KING RADIO CORPORATION, INC. (Employer) Dated By (Representative ) (Title) Note: We will notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered. defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board' s Regional Office. Room 610. Federal Building, 601 East 12th Street, Kansas City, Missouri 64106, Telephone 374-5181.