King Radio Corp., Inc.

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