King Radio Corp., Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1967

166 N.L.R.B. 180 (N.L.R.B. 1967)

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