King Radio Corp., Inc.

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