Station Kkhi

National Labor Relations Board - Board Decisions

Jul 27, 1987

284 N.L.R.B. 1339 (N.L.R.B. 1987)

STATION KKHI 1339
Buckley Broadcasting Corporation of California,
d/bia Station ICK111 and National Association
of Broadcast Employees & Technicians, Local
51, AFL-CIO. Case 20-CA-15817
27 July 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN, BABSON, AND STEPHENS
On 30 September 1981 Administrative Law
Judge David G. Heilbrun issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief and the Charging Party filed an an-
swering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The National Labor Relations Board has consid-
ered the decision and the record in light of the ex-
ceptions and briefs and has decided to affirm the
judge's rulings, findings,' and conclusions as modi-
fied and to adopt the recommended Order.
The judge found that the Respondent did not
have sufficient objective considerations to support
its asserted good-faith doubt of the Union's majori-
ty status and therefore that its November 1980
withdrawal of recognition violated Section 8(a)(5)
and (1) of the Act. Although we adopt the judge's
conclusions, we do so for the following reasons.
The facts are essentially not in dispute and are
set forth in greater detail by the judge. The Union
and the Respondent have had a collective-bargain-
ing relationship for a number of years. Contract ne-
gotiations pursuant to the Union's timely notice of
reopening were begun before the 1 February 1978
expiration of the most recent collective-bargaining
agreement. A primary stumbling block in negotia-
tions was the Respondent's desire to institute
"combo," i.e., assignment of engineering and an-
nouncing work to one on-air employee, rather than
the historical practice of having separate employees
perform each function. The parties' disagreement
on this issue led to impasse on 22 August 1979,
after which the Respondent implemented its final
offer. When negotiations resumed in September
1979, the Union was willing to accept the concept
The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings. We have further considered the Respondent's implied con-
tention that the judge has evidenced a bias or at least an appearance of
bias in this proceeding. We have carefully considered the record and at-
tached decision and find these charges of bias unsupported and without
merit.
of combo if its member employees were assigned to
do the work. The Respondent, however, wished to
assign the work to its employees represented by the
American Federation of Television and Radio Art-
ists (Al' 11(A). The Respondent's five employees
represented by the Union struck on 12 November
1979.
When, pursuant to its fmal offer, the Respondent
began assigning combo work to its AFTRA-repre-
sented employees, the Union instituted proceedings
against AFTRA pursuant to jurisdictional dispute
procedures set forth in article XX of the AFL-
CIO constitution. In October 1980 the proceedings
were concluded in favor of the Union.
During the period between the commencement
of the strike and the conclusion of the article XX
proceedings, the Union made no attempt to resume
negotiations with the Respondent. In support of its
bargaining position, the Union sought to induce ad-
vertisers away from the Respondent, an endeavor
that in at least one case was successful. In the
meantime, the Respondent hired permanent re-
placements for the five strikers, and two of the
strikers resigned their positions with the Respond-
ent.
On resolution of the jurisdictional dispute, the
Union sent a letter dated 30 October 1980 to the
Respondent requesting bargaining in light of the
"changed circumstances." By letter dated 6 No-
vember 1980, the Respondent withdrew recogni-
tion from the Union. In so doing it denied the
Union's assertion that it was the exclusive repre-
sentative of the Respondent's engineering and tech-
nical employees, rejected the Union's reliance on
the AFL-CIO proceeding as creating "changed
circumstances" for negotiations, and cited the sub-
stantial period of thne between the expiration of
the collective-bargaining agreement and the
Union's request for further negotiations.
In addressing the Respondent's claim of good-
faith doubt of the Union's majority status, the
judge rejected as a matter of law the basis for its
asserted good-faith doubt put forth by the Re-
spondent in its 6 November 1980 letter, i.e., the
passage of time between the expiration of the col-
lective-bargaining agreement in February 1978 and
the Union's 30 October 1980 letter. In addition, the
judge addressed the Respondent's alternative con-
tention that its asserted good-faith doubt is support-
ed by its hiring of permanent replacements for the
strikers and strengthened by the fact that two of
the strikers resigned. The judge rejected this argu-
ment as well, relying on the presumption that strike
replacements support the union in the same ratio as
the strikers, and further finding that the Respond-
ent presented no actual evidence that the strike re-
284 NLRB No. 113
1340 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
placements were opposed to representation by the
Union.2 Accordingly, the judge concluded that the
Respondent's withdrawal of recognition violated
Section 8(a)(5) and (1).
In its exceptions the Respondent argues, inter
alia, that under the circumstances of this case the
presumption regarding striker replacements is inap-
plicable, and asserts that the facts support its good-
faith doubt. We consider the presumption concern-
ing strike replacements below.
Absent unusual circumstances, there is an irre-
buttable presumption that a union enjoys majority
status during the first year following its certifica-
tion. 3 On expiration of the certification year, the
presumption of majority status continues but may
be rebutted. 4 An employer who wishes to with-
draw recognition after a year may do so in one of
two ways: (1) by showing that on the date recogni-
tion was withdrawn the union did not in fact enjoy
majority status, or (2) by presenting evidence of a
sufficient objective basis for a reasonable doubt of
the union's majority status at the time the employer
refused to bargain.5
The presumption of continuing majority status
serves two important functions: first, it promotes
continuity in bargaining relationships, i.e., gives the
relationship "some measure of permanence," and,
second, the presumption protects the express statu-
tory right of employees to designate a collective-
bargaining representative of their own choosing,
and prevents an employer from impairing that right
without objective evidence that the representative
the employees have designated no longer enjoys
majority support. 7 There is, in effect, a corollary to
the presumption of continuing majority status
which is that the Board presumes that, generally, at
least a majority of new employees support the
union.
2 The Respondent introduced affidavits of the five strike replacements
stating only that they had never been contacted during the strike by the
Union.
3 Ray Brooks v. NLRB, 348 U.S. 96, 98-104 (1954).
4 Celanese Corp. of America, 95 NLRB 664 (1951), cited with approval
in Ray Brooks, supra.
6 Retired Persons Pharmacy v. NLRB, 519 F.2d 486 (2d Cir. 1975), enfg.
210 NLRB 443 (1974); Allied Industrial Workers Local 289 v. NLRB, 476
F 2d 868 (D.C. Cir. 1973), enfg 192 NLRB 290 (1971); Terrell Machine
Co. a NLRB, 427 F.2d 1088 (4th Cir. 1970), enfg. 173 NLRB 1480
(1969).
6 NLRB V. Century Oxford MA. Corp., 140 F.2d 541, 542 (2d Cir.
1944), enfg. 47 NLRB 835 (1943). Chairman Dotson acknowledges the
importance of continuity in bargaining relationships, but he does not nec-
essarily accord it absolute supremacy in all contexts. See his and former
Member Dennis' joint dissent in Gibbs & Cox, 280 NLRB 953 (1986)
(withdrawal of recognition in a separately recognized unit that was asser-
tedly "merged" into a larger overall unit).
7 Pennco, Inc., 250 NLRB 716 (1980), enfd. 684 F.2d 340 (6th Cir.),
cert. denied 459 U.S 994 (1982) See also Fall River Dyeing & Finishing
Corp. v. NLRB, 107 SQ 2225 (1987)
In Pennco, Inc., 8 the Board reaffirmed a more
controversial and less established presumption con-
cerning union majority, i.e., that permanent strike
replacements hired during a strike support the
union in the same ratio as the striking employees
whom they replaced. 2 It is this presumption that
we scrutinize and ultimately abolish, for the rea-
sons discussed below.
As a matter of policy, there is no warrant for a
presumption of strike replacement support for an
incumbent union. Indeed, prior to 1975, there was
no such presumption. In Jackson Mfg. Co.," the
panel majority affirmed the trial examiner's dismis-
sal of an allegation that the employer had unlawful-
ly withdrawn recognition from the union during a
strike, following the hiring of replacements for all
the striking employees. More specifically, the panel
adopted the following rationale of the trial examin-
er:
General Counsel's contention that Respond-
ent unlawfully refused to bargain with the
Union on and after June 10, 1958, rests upon
the assumption that the Union's majority status
established by consent of the parties following
a card check in August 1957, continued unaf-
fected throughout the duration of the strike
and regardless of the fact that the strikers had
been permanently replaced. This contention
would prevail, and General Counsel so con-
cedes in his brief, to me, only if the strikers re-
tained their employee status throughout the
entire period, being entitled to immediate rein-
statement upon application at the close of the
strike. As I have concluded that under the cir-
cumstances of this case the strike was an eco-
nomic one and not an unfair labor practice
strike as urged by General Counsel, it is evi-
dent that no replaced striker retained his em-
ployee status. Consequently, at the time of its
demands for resumption of bargaining, on June
9, 1958, it is doubtful that the Union represent-
ed anything near a majority of the employees,
unless it could be shown (as it was not) that
the replacements hired during the strike had
chosen the Union to represent it—a most im-
probable situation."
8 Supra, 250 NLRB 716.
9 In approving this presumption of strike replacement support for the
union, the Board in Pennco simultaneously rejected a contrary presump-
tion, urged by the employer in that case, that strike replacements and
nonstriking employees oppose, or do not support, the union. As discussed
more fully below, we continue to reject such a presumption of strike re-
placement opposition to or nonsupport of the union.
16 129 NLRB 440(1960).
11 Id. at 477-478. We cite this case only as an indication that the pre-
sumption that strike replacements support the union is not long held, and
do not pass on other findings made by the trial examiner.
STATION KIWI 1341
In S & M Mfg. Co., 12 the panel majority of then
Members Brown and Jenkins stated that the validi-
ty of any finding of unlawful refusal to bargain on
the part of an employer depends on the existence
of majority support for the union on the date of the
employer's refusal to bargain. There, the employer
effectively refused to bargain further with the
union on a certain date, without, however, ques-
tioning the union's majority status. The panel ma-
jority found that on the date of the employer's re-
fusal to bargain, the only employees working were
returning strikers who had resigned from the union
or newly hired employees who had crossed the
union's picket line to go to work and who were
"not shown to have manifested their support of the
Union." Thus, the panel majority was unable to
find that there were any union adherents among
the employees working on the date the employer
effectively refused to bargain. In dissent, then
Member Fanning argued that:
[A]n established bargaining representative
which, as here, goes on strike with the support
of all employees should be entitled to a pre-
sumption of continuing majority status, at least
until it is challenged by the Company or put
to the test in a Board election."
Nevertheless, the panel majority dismissed the alle-
gation of unlawful refusal to bargain, finding that
the General Counsel had failed to satisfy his
burden of establishing that the union enjoyed ma-
jority status on the date the employer refused to
bargain with the union.
In Peoples Gas System," the Board found that
the employer lawfully withdrew recognition from
the incumbent union on the basis of the employer's
reasonable doubt of the union's continued majority
status, that reasonable doubt was itself based on,
inter alia, the fact that 40 percent of the employees
had been permanently replaced during an economic
strike that occurred 3 years prior to the employer's
withdrawal of recognition." In this regard, the
Board stated:
While it is of course possible that the [strike]
replacements, who had chosen not to engage
in the strike activity, might nevertheless have
favored union representation, it was not unrea-
sonable for [the] Respondent to infer that the
degree of union support among these employ-
12 172 NLRB 1008 (1968).
18 Id. at 1009-1010.
14 214 NLRB 944 (1974).
18 Also, there had been a 17-percent accretion to the unit after the
strike, with none of the accreted employees signing union authorization
cards, and there was an approximately 35-percent turnover of employees
during the 8-month period prior to the employer's withdrawal of recogni-
tion.
ees who had chosen to ignore a Union-spon-
sored picket line might well be somewhat
weaker than the support offered by those who
had vigorously engaged in concerted activity
on behalf [of] Union-sponsored objectives."
Thus, the Board in Peoples Gas continued to refrain
from creating any presumptions about the pro- or
antiunion sympathies of strike replacements.
However, in Cutten Supermarket, 17 the Board,
without any supporting rationale or citation to ap-
posite precedent, implied in dictum that strike re-
placements are presumed to support the union in
the same ratio as those whom they have replaced.
In that case, the employer withdrew recognition
from the union, asserting that it possessed a reason-
able doubt, based on objective considerations, of
the union's continued majority status. More specifi-
cally, on the date that the employer withdrew its
recognition of the union, its employee complement
consisted of four striking employees, three strike
replacements, and the nonstriking assistant manager
(who the employer asserted was a bargaining unit
employee, and not a supervisor within the meaning
of Section 2(11) of the Act, and who was, there-
fore, assertedly includable in the employer's com-
putations of employee support for the union).
In rejecting the employer's assertion of reasona-
ble doubt about the union's continued majority
status, the Board found that the nonstriking assist-
ant manager was a supervisor, and not a rank-and-
file employee whose union sentiments could prop-
erly be considered in determining whether the
union continued to enjoy the support of a majority
of the bargaining unit employees. Thus, the Board
found that on the date that the employer withdrew
its recognition of the union, there were seven em-
ployees in the unit: four striking employees and
three strike replacements. Concerning the strike re-
placements, the Board correctly stated that there
was no presumption that strike replacements and
nonstriking employees were opposed to the union.
The Board also found that the employer had pro-
duced no affirmative evidence to support its con-
tention that the strike replacements and nonstriking
individuals were opposed to the union. However,
with reference to the strike replacements, the
Board inexplicably stated:18
Indeed, it is a well-settled principle that new
employees are presumed to support the union in
18 214 NLRB at 947.
17 220 NLRB 507 (1975).
18 Id at 509 (emphasis added).
1342 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the same ratio as those whom they have re-
placed."
True Temper Corp., 217 NLRB [1120] (1975); Maywood Pack-
ing Co., 181 NLRB 778, 781 (1970), Laystrom Manufacturing Co.,
[151 NLRB 1482 (1965)].
Apparently, this was the first time that the Board
linked the presumption on new employee (i.e.,
normal economic turnover) support for an incum-
bent union to strike replacements. We emphasize
that the Board did so in dictum and without ration-
ale or precedent. First, the cases relied on by the
Board in footnote 11 of the excerpted passage
above involved new employees in the course of
normal economic turnover, and not strike replace-
ments.
Second, the Board summarized the evidence of
support for the union in Cutten Supermarket as fol-
lows: "four strikers who clearly supported the
Union and three replacements whose union sentiments
were not known," 220 NLRB at 509 (emphasis
added). Thus, notwithstanding its apparent earlier
linkage of the presumption of new employee sup-
port for an incumbent union to strike replacements
in this case, the Board clearly did not actually
apply any such presumption of strike replacement
support for the union to the facts before it.
In any event, in Beacon Upholstery Co.," the
Board found that the employer had lawfully with-
drawn recognition from the union on the basis of a
reasonable doubt that the union enjoyed the major-
ity support of the employees. On the date of the
employer's withdrawal of recognition, there were
13 employees in the bargaining unit: 10 strike re-
placements and 3 employees who had not gone on
strike. Thirteen striking employees had been law-
fully discharged 4 days before the employer's with-
drawal of recognition. The administrative law
judge, affirmed without comment by the Board,
found that the employer had rebutted the presump-
tion of continued majority support for the union
flowing from the recently expired collective-bar-
gaining agreement simply by establishing that the
only employees in the bargaining unit as of the
date of the employer's withdrawal of recognition
were 3 nonstrikers and 10 strike replacements (all
13 of the striking employees having been lawfully
discharged prior to the withdrawal of recognition).
The judge stated: "Under these circumstances I do
not believe that it can be presumed that the strike
replacements supported the Union in the same ratio
as the discharged strikers."20
12 226 NLRB 1360 (1976)
2° Id. at 1367-1368. The Chairman notes that the judge did note that
the Board in Cutten Supermarket, supra, had applied to strike replacements
the presumption that new employees support the union in the same ratio
as those they replaced. In not applying that presumption to the strike re-
About 15 months after Cutten Supermarket, and
only 2 weeks after Beacon Upholstery, the Board
again addressed the issue of presumptive support
for or opposition to a union on the part of strike
replacements in Arkay Packaging Corp."- There, a
panel majority found that the employer lawfully
withdrew recognition from three unions on the
basis of its reasonable doubt about the continued
majority status of those unions. The majority ex-
pressly affirmed the adminstrative law judge's find-
ing that the unions' presumptive majority status
flowing from their collective-bargaining agree-
ments had been rebutted by the fact that the unions
failed to respond at all to the employer's written
notifications to the unions and to the striking em-
ployees that the latter would be permanently re-
placed if they did not return to work by a specified
date; the striking employees were, in fact, perma-
nently replaced; and the unions made no attempt to
contact the employer or monitor the application of
the still-current collective-bargaining agreements
during the strike. Thus, the judge found, and the
Board panel majority expressly agreed, that:
It is reasonable to conclude that none of the
three Unions in fact had been designated by
any of the replacements, nor is there evidence
to the contrary. This and their apparent lack
of interest for several months reasonably cast
serious doubt on each union's continued ma-
jority status. 2 2
The majority found that, under the circum-
stances, the employer had sufficient objective bases
to support a reasonable doubt that the striking em-
ployees themselves continued to support the unions.
Turning its attention to the strike replacements,
and without referring to Cutten Supermarket or
Beacon Upholstery, the majority stated:
[W]e would not . . . charge Respondent, in
fact or in law, with a belief that [the strike re-
placements] desired representation by the
placements in Beacon Upholstery, the judge found that the striking em-
ployees in Beacon Upholstery, unlike those in Cutten Supermarket, had
been discharged, and that therefore "the Union's loyalty lay with [the
discharged strikers, whose interests] were diametrically opposed to those
of the strike replacements." He finds this proposition to be no less appli-
cable in the case of undischarged strikers, such as those in Cutten Super-
market, and he finds the two cases in question not materially distinguish-
able in that regard. In any event, however, he fmds that the judge in
Beacon Upholstery was correct in not applying to strike replacements the
presumption that new employees in a normal turnover situation support
the union in the same ratio as those they replaced. In this regard, he re-
jects rather than tries to distinguish, the application of this presumption
to the strike replacements in Cutten Supermarket. As indicated above, he
finds that the Board's application of this presumption to the strike re-
placements in that case was both unnecessary—dictum—and unsupported
by rationale or precedent.
21 227 NLRB 397 (1976).
22 Id. at 397.
STATION ICIC.171I 1343
Unions. [The presumption that new employees
support a union in the same ratio as those
whom they have replaced] has been held to
obtain in the normal turnover situation . . . .
But, in the strike situation present in this case,
it would be wholly unwarranted and unrealis-
tic to presume as a matter of law that, when
hired, the replacements . . . . favored repre-
sentation by the Union to the same extent as
the strikers [citing Peoples Gas, supra, and set-
ting forth the same excerpt from that case that
is set forth herein at fn. 16, supra]. The facts
certainly would not support such a presump-
tion. And since the replacements' hiring, no
more has been heard from them to demon-
strate any degree of union support than has
been heard from the strikers. There is, there-
fore, at least as much justification for not in-
dulging in a presumption that the replacements
favor the Unions and for finding that Respond-
ent had reasonable grounds for not believing
that to be so, as there is for finding, as we
have, that it was reasonable for Respondent to
question the continued union adherence of the
striking employees. 23
However, in Windham Community Memorial
Hospita1, 24 the Board set out to clarify the law on
the issue of whether strike replacements may be
presumed to support the union. The Board stated,
"The general rule . . . is that new employees, in-
cluding striker replacements, are presumed to sup-
port the union in the same ratio as those whom
they have replaced." 25 The Board explained that it
had declined to follow that "well-settled principle"
in Arkay Packaging, and had held instead that the
employer in Arkay Packaging could presume that
the strike replacements did not support the union,
because of the "unique circumstance that the union
had apparently abandoned the bargaining unit."
The Board in Windham thus held that Arkay Pack-
aging represented a limited exception to the pre-
sumption that new employees, including strike re-
placements, support the union.
Finally, in Pennco, supra, the Board rejected the
employer's contention that the presumption of new
22 Id. at 397-398. In declining to apply to strike replacements the pre-
sumption that a majority of new employees in a normal turnover situation
support the union, the majority expressly rejected the fully articulated ar-
gument in favor of such a presumption raised by then-Member Jenkins in
his dissenting opinion.
26 230 NLRB 1070 (1977), enfd. 577 F 2d 805 (2d dr. 1978).
22 Id. 230 NLRB 1070, citing Cutten Supermarket, supra, and Surface
Industries, 224 NLRB 155, 163 (1976), when the judge, in an opinion
adopted by the Board, relied on Cutten Supermarket, m applying the new
employee presumption to strike replacements. However, as seen from the
discussion of eutten Supermarket, supra, the application of the presump-
tion of new employee support for the union to the strike replacements in
that case was in dictum, and was not supported by any analysis or by
apposite precedent.
employee support for the union does not apply to
strike replacements. In doing so, however, the
Board stated simply:
The Board has long held that [the presumption
of strike replacement support for the union]
applies as a matter of law, and it is incumbent
upon Respondent to rebut it even, and perhaps
especially, in the event of a strike.26
The Board in Pennco cited no cases in support of
its assertion that the presumption in question was
"long held." Indeed, as the preceding discussion of
cases clearly demonstrates, this presumption was
not "long held" at all, but in fact was not articulat-
ed in any fashion until Cutten Supermarket in 1975,
only 5 years prior to Pennco, and even then (i.e., in
Cutten) in dictum and without supporting rationale
or precedent. Nor has the Board in cases subse-
quent to Cutten involving this presumption (includ-
ing, as seen, Pennco itself) provided any such sup-
porting rationale. We perceive none. On the con-
trary, as discussed below, we perceive substantial
reasons to eliminate this presumption.
Although the Board has continued to apply the
presumption of strike replacement union support,27
the circuit courts have uniformly rejected it, even
when they have enforced Board orders. Thus, the
Sixth Circuit in Pennco enforced the Board's Order
but specifically declined to adopt either the Board's
or the employer's suggested presumption. Rather,
the court found that given the facts of the case, the
evidence was sufficient "only to put the parties in
equipoise." 28 The court continued, however, find-
ing that "equipoise is not enough for Penrico to
demonstrate by objective evidence good faith
doubt as to the Union's majority status. Penne°
would need some further evidence of union non-
support. . . •"29 Similarly, in Windham Communi-
ty Memorial Hospital v. NLRB," the Second Cir-
cuit declined to endorse the Board's presumption,
and enforced the Board's Order by concluding that
the employer was not, in turn, entitled to a pre-
sumption that the strike replacements did not sup-
port the union.
In cases in which the courts have denied en-
forcement, two courts have appeared to base their
decisions on the premise that strike replacements
may be presumed not to support the union, thus
concluding that the Board's presumption was un-
26 250 NLRB at 717.
27 E.g., I T Corp., 263 NLRB 1183 (1982) (presumption applied but
sufficient evidence presented to rebut it).
22 684 F 2d at 343.
29 Id.
2° 577 F.2d 805 (2d Cir. 1978).
1344 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
warranted.31 Most recently, the Ninth Circuit
noted that the presumption has never been em-
braced by any court, and affirmed an administra-
tive law judge's conclusion that under the facts of
that case, it was unrealistic to presume that the
strike replacements supported the union.32
Just as there is no articulated basis in reason or
policy for a presumption that strike replacements
support the union in the same ratio as the striking
employees they replace, so too is there no eviden-
tiary or empirical basis for such a presumption.
Presumptions are "fixed rule[s] of law," creating
for the party against whom the presumption oper-
ates the burden of producing other evidence to
rebut the presumptive fact. 33 More specifically, a
rebuttable presumption of fact simply shifts to the
party against whom the presumption operates the
burden of producing evidence to rebut the pre-
sumption by establishing the contrary of the pre-
sumed fact.
As an evidentiary matter, presumptions should
arise when it is believed that proof of one fact ren-
ders the inference of the existence of another fact
so probable that it is sensible and timesaving to
assume the truth of the inferred fact until it is af-
firmatively disproved. 34 In this light we have, as
seen, carefully reviewed the Board's past decisions
and assessed our experience to determine if they
suggest generalizations about the views of perma-
nent strike replacements that are so universal that
they support one overall presumption that can be
applied when evaluating a union's majority status.
Thus incumbent unions and strikers have some-
times shown hostility toward the permanent re-
placements, 35 and in some instances, the union has
31 National Car Rental System v. NLRB, 594 F.2d 1203 (8th Qr. 1979);
Soule Glass & Glazing Co. v. NLRB, 652 F.2d 1055 (1st Cir. 1981). See
also NLRB v. Randle-Eastern Ambulance Service, 584 F.2d 720 (5th dir.
1978).
The Chairman further notes that the Eighth Circuit's rejection of the
presumption of strike replacement support for the union in National Car
Rental System v. NLRB, supra, was couched in particularly strong terms:
If this presumption were to be employed here, we would reach the
ridiculous result of presuming that all of the ten new employees fa-
vored representation by the union even though they had crossed the
union's picket lines to apply for work and to report to work each
day after they were hired. This presumption of the Board is not spe-
cifically authorized by statute and is so far from reahty in this par..
ticular case that it does not deserve further comment.
594 F.2d at 1206. The Chairman adds that indeed, and perhaps not coin-
cidentally, the employer in National Car Rental System argued before the
administrative law judge that "m order to presume that strike replace-
ments supported the Union we must also presume that they are idiots."
237 NLRB 172, 174 (1978).
32 Whisper Soft Mills v. NLRB, 754 F.2d 1381 (9th dir. 1984).
33 9 Wigmore, Evidence, § 2487 at 295-296 (Chadbourn rev. 1981); see
also McCormick, Evidence, § 342 at 803 (2d ed. 1972).
34 McCormick, Evidence, § 343 at 807 (2d ed. 1972).
35 See, e.g., I T Corp., 263 NLRB 1183 (1982); Beacon Upholstery Co.,
226 NLRB 1360 (1976); Titan Metal Mfg. Co., 135 NLRB 196 (1962).
lacked interest, at least for the duration of the
strike, in negotiating on the replacements' behalf."
At the same time, permanent replacements are typi-
cally aware of the union's primary concern for the
striker's welfare, rather than that of the replace-
ments. In this regard, the replacements' attitude to-
wards union representation may be influenced by
this awareness, which in turn undermines the basis
for an evidentiary presumption of support for the
union.37 In light of these factors, we can find no
basis for presuming that strike replacements who
have accepted employment and are therefore will-
ing to cross a picket line in order to go to work
favor union representation. Accordingly, to the
extent that Pennco relied on such a presumption,
that case is overruled.
On the other hand, we find the contrary pre-
sumption equally unsupportable. Thus, the hiring
of permanent replacements who cross a picket line,
in itself, does not support an inference that the re-
placements repudiate the union as collective-bar-
gaining representative." As the court in Pennco
noted, "the Board correctly points out that the fail-
ure to join an economic strike may not indicate a
lack of support for the union, but rather may dem-
onstrate employees' economic concems." 32 In this
regard, an employee may be forced to work for fi-
nancial reasons, or may disapprove of the strike in
question but still desire union representation and
would support other union initiatives. The pre-
sumption of union disfavor is therefore not factual-
ly compelling. Moreover, adoption of this pre-
sumption would disrupt the balance of competing
economic weapons long established in strike situa-
tions and substantially impair the employees' right
to strike by adding to the risk of replacement the
risk of loss of the bargaining representative as soon
as replacements equal in number to the strikers are
willing to cross the picket line.40
Based on the foregoing, we can discern no over-
riding generalization about the views held by strike
replacements and therefore we decline to maintain
or create any presumptions regarding their union
sentiments. Rather, we will review the facts of
each case, but will require "some further evidence
of union non-support" 41 before concluding that an
" See I T Corp., supra; Arkay Packaging Corp., 227 NLRB 397 (1976).
37 See I T Corp., supra; Beacon Upholstery, supra.
"NLRB v. Frick Co., 423 F.2d 1327 (3d dir. 1970); Rogers Mfg Co. v.
NLRB, 486 F.2d 644 (6th dir. 1973).
39 NLRB v. Pennco, supra, 684 F.2d at 342.
40 Penne°, Inc., 250 NLRB 717. Chairman Dotson agrees that a pre-
sumption that strike replacements oppose the union is not factually com-
pelling, has no empirical foundations, and is thus insupportable for that
reason alone. Accordingly, he finds it unnecessary to rely on the policy
reason set forth in Penne° and invoked here by his colleagues for not
adopting such a presumption.
41 NLRB v. Pennco, supra, 684 F.2d at 343.
STATION KICHI 1345
employer's claim of good-faith doubt of the union's
majority is sufficient to rebut the overall presump-
tion of continuing majority status.
Turning now to the present case, we agree with
the judge that the Respondent has not established
sufficient objective considerations to support its
withdrawal of recognition from the Union. The
only factor presented by the Respondent is its
hiring of five permanent replacements at a time
when there were only three remaining strikers.
This fact, by itself, is insufficient to establish a
good-faith doubt. Nor can we ascertain the replace-
ments' union sentiments either from their having
crossed a peaceful and sporadic picket line or from
the Union's failure to contact the replacements
during the strike. Rather, more evidence would be
required to support a good-faith doubt, as these
events, common to the hiring of replacements, do
not adequately demonstrate the replacements'
union sentiments. The Respondent, however, has
failed to present other evidence indicating the
union sentiments of the replacements. 42 Thus we
cannot conclude, even absent the presumption on
which the judge relied, that the Respondent has es-
tablished sufficient objective considerations to sup-
port its claim of good-faith doubt.43 Accordingly,
in agreement with the judge, we find that the Re-
spondent's withdrawal of recognition from the
Union violated Section 8(aX5) and (1) of the Act.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Buckley
Broadcasting Corporation of California, d/b/a Sta-
tion KKHL San Francisco, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
42 As noted earlier, the affidavits of the five strike replacements intro-
duced by the Respondent state only that they were not contacted by the
Union since the strike began. There is no evidence concerning the re-
placements' union sentiments.
43 We agree with the judge that here, unlike Arkay Packaging Corp.,
227 NLRB 397 (1976), there is no evidence that the Union abandoned the
bargaining unit. In this regard, as found by the judge, the Union contin-
ued to "shadow" the bargaining relationship by pursuing the AFL-CIO
internal jurisdictional dispute resolution procedures, organizing picketing,
and attempting, in at least one instance successfully, to induce advertisers
to withdraw business from the Respondent
Lewis S. Harris, for the General Counsel.
Victor P. Reed, of San Francisco, California, for the Re-
spondent.
Ralph M Phillips, of Los Angeles, California, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge. This
case was heard at San Francisco, California, on August
6, 1981, based on a complaint alleging that Buckley
Broadcasting Corporation of California, d/b/a Station
KKHI (Respondent), violated Section 8(a)(1) and (5) of
the Act by withdrawing recognition of National Associa-
tion of Broadcast Employees & Technicians, Local 51,
AFL-CIO (NABET), and thereafter failing and refusing
to bargain with it as the assertedly exclusive representa-
tive of engineering and technical employees.
On the entire record, consideration of posthearing
briefs filed by the Charging Party and Respondent,' and
my observation of witnesses, I make the following
FINDINGS OF FACT AND RESULTANT CONCLUSIONS
OF LAW
NABET has been the exclusive bargaining representa-
tive of Respondent's engineers and technicians for many
years. 2 A succession of collective-bargaining agreements
reflected such recognition, the last of these being effec-
tive to February 1, 1978.
Based on NABET's timely notice of reopening, the
parties undertook negotiations for a new agreement.
These continued for many months after the February
1978 expiration date, and the NABET-represented em-
ployees continued working. On August 6, 1979, Victor
Reed, Respondent's attorney, sent NABET its "best and
final" offer. This led to impasse in August 22, 1979, and
Respondent notified NABET that it would implement its
last offer with particular respect to wage scales and a
lump sum retroactive payment to each full-time engineer.
Throughout this long course of dealings the foremost
impediment to agreement was "combo" (i.e., the assign-
ment of engineering and announcing work during an on-
air shift to one employee.) Historically, at least two em-
ployees had been required for an on-air shift; an an-
nouncer performing live on-air speaking duties and an
engineer or technician responsible for the remainder of
the program (e.g., playback of music and other prere-
corded sources). The impasse was essentially rooted in
"combo," but by September 1979 NABET was willing
to accept the concept if NABET-represented employees
The General Counsel made oral argument at the close of hearing,
and reiterated its general contention with a letter dated August 28, 1981,
embodying one case citation and a motion to correct transcript. Errors in
the transcript have been noted and corrected.
Pursuant to Sec. 102.42 of the Board's Rules and Regulations, I draw
on many portions of the Charging Party's posthearing brief in composing
this decision, deemmg it a pertinent, lucid, well-organized expression of
"proposed findings and conclusions," as equivalent to findings offset and
conclusions of law. See Shield-Pacific Ltd., 245 NLRB 409 (1979).
Respondent maintains its office and place of business at the 14th floor
of the St. Francis Hotel in San Francisco, California, where it is engaged
in operating a radio station, as to which it subscribes to various interstate
news services, advertises nationally sold products, and annual), purchases
goods and materials valued in excess of $5000, which are received at its
facility directly from points outside California. On these admitted facts I
find that Respondent is an employer engaged in commerce within the
meaning of Sec. 2(6) and (7) of the Act, and otherwise that NABET is a
labor organization within the meaning of Sec. 2(5).
1346 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
were assigned to do the work. This was associated to a
fact that the San Francisco affiliate of the American Fed-
eration of Television and Radio Artists (AFTRA) had
represented Respondent's announcers and could also rep-
resent engineers and technicians in regard to "combo"
assignment. Respondent was not willing to assign
"combo" work to NABET-represented employees, in-
stead wanting the work done exclusively by AFTRA-
represented employees.3
Negotiations had resumed on September 19, 1979, but
were soon clouded in controversy over whether or not
an agent of Respondent had reached full agreement
within the meaning of Section 8(d). 4 The parties ex-
changed letters in November 1979 with NABET con-
tending that "morally and legally" an agreement was in
effect, while Respondent termed this belief "ambiguous"
and advised that it would effectuate some modification to
what was previously unilaterally put into effect. The
upshot was a strike by NABET commencing on Novem-
ber 12, 1979.
Soon after the article XX proceedings concluded,
Jeanne M. Bargmann, an International representative of
NABET, wrote to James P. Hickey Jr., Respondent's
vice president and general manager, as follows:5
As exclusive bargaining agent of all engineering
and technical employees of Radio Station KKHI,
the National Association of Broadcast Employees
and Technicians, AFL-CIO hereby requests that
we meet to bargain with respect to the wages,
hours, terms and conditions of employment of these
employees.
As you are aware, the playing of records, carts
and tapes by AFTRA-represented employees has
been found to be a violation of Article XX, Section
3 of the AFL-CIO Constitution. In his letter to you
of October 20, 1980, AFTRA Executive Secretary
and Counsel Donald S. Tayer requested that you
cease making such assignments to AFTRA employ-
ees. In light of these changed circumstances, please
notify this office of dates as to when negotiations
may commence.
Reed answered Bargmann by letter dated November 6,
1980. In part it read:
. . . you cite to the AFL-CIO Article XX pro-
ceeding, and allege that the outcome thereof togeth-
er with a letter to Mr. Hickey from Donald S.
Tayer, Esquire, Executive Secretary and Counsel,
AFTRA, San Francisco Local act to create a
3 On Respondent's implementation of the final offer, it began assigning
AFTRA-represented employees to "combo" work. This led to proceed-
ings by NABET against AFTRA pursuant to internal (jurisdictional) dis-
putes resolution procedures set out in art. XX of the AFL-CIO constitu-
tion. In October 1980 the art. XX proceedings were ultimately concluded
in favor of NABET.
4 NABET filed an unfair labor practice charge on this theory in Janu-
ary 1980. It was dismissed and such action sustained by administrative
proceedings culminating in June 1980.
5 On November 5, 1980, she sent a copy of the letter to Reed, apoligiz-
mg for the oversight of not having done so when it was mailed out in
ordinary course.
"changed circumstance" at the Station obligating
the Station to enter into negotiations with NABET.
We do not agree.
On behalf of the Station we have advised
AFTRA that we are not bound by any internal
AFL-CIO proceeding because, inter alia, of ab-
sence of notice and opportunity to be heard, and
most fundamental of all, lack of membership in the
AFL-CIO which would give the Station stand-
ing. . . .
As you are aware, the Collective Bargaining
Agreement between KKHI and NABET, Local 51,
expired by its terms on February 1, 1978, and has
not been renewed despite extensive negotiations, in-
cluding Mediation, which continued through Sep-
tember 21, 1979.
Accordingly, in the premises, please be advised
that by this letter, written on behalf of Buckley
Broadcasting Corporation, licensee of Station
KKHI, the Employer hereby declares its With-
drawal of Recognition of NABET as the certified
bargaining representative for engineering and tech-
nical employees of KKHI.
Lest our failure to do so be construed as an ad-
mission, please consider this letter also as categori-
cal denial of your statement "[A]s exclusive bar-
gaining agent for all engineering and technical em-
ployees of Radio Station KKHI. . . ."
By reason of the facts stated above, the Station
considers it has no obligation to meet with NABET
and declines to do so.
The general principle applicable to this case is that of
rebuttable presuinption attaching to a union's status as
majority representative of employees in a bargaining unit
in which recognition has exceeded 1 year. The presump-
tion may be rebutted by an employer's showing with
clear, cogent, and convincing evidence that it harbors a
good-faith reasonable doubt of such a union's continued
majority support. This type of doubt will in turn justify a
refusal to continue recognition when it had existed
before. Terrell Machine Co., 173 NLRB 1480 (1969),
enfd. 427 F.2d 1088 (4th Cir. 1970), cert. denied 398 U.S.
920 (1971); NLRB v. Tahoe Nugget, Inc., 584 F.2d 293
(9th Cir. 1978).
Here the basis of Respondent's doubt is fully expressed
in Reed's letter of November 6, 1980. That document
touches on chronology of the long period between con-
tract expiration and the then-current date, asserting that
the employer was disinclined to have its position affected
by the article XX proceedings. This is essentially all that
can be found concerning why doubt over continuing ma-
jority representation of employees in the engineering and
technical bargaining unit was being raised. As a matter
of law it is insufficient, and for this reason alone Re-
spondent has been shown to have unlawfully withdrawn
recognition and since refused to bargain with NABET.
Such a conclusion is taught by Holiday Inn, 212 NLRB
553 (1974), in which the Board adopted a decision hold-
ing that when asserted doubt was based on an irrelevant
consideration it could not be relied on as valid grounds.
STATION ICICHI

1347
Notwithstanding this, the parties have litigated and
argued an alternative principle dealing with the presump-
tion of strike replacements supporting a union in the
same proportion as those persons who struck. In Novem-
ber 1979 the unit was composed of five NABET-repre-
sented employees, all of whom joined in the strike. Pick-
eting duty was continued in structured fashion over the
November 1979-1980, period, with participation ranging
from five at first, down to two after 1 year had passed.
Additionally, former bargaining unit members Frank
Jewell and Stephen Woolard resigned their employment
in February and April 1980, respectively. Over the same
span NABET sought to induce advertisers away from
Respondent, and this was both successful and unsuccess-
ful in the cases of the Private Industry Council and Vic-
toria Station (a restaurant chain) ag reflected in corre-
spondence of October 7 and 23, 1980, respectively. In
more direct relation to the presumption, Respondent in-
troduced affidavits of the five replacement employees in
which they denied having any contact from NABET
during material times.6
In this context the General Counsel argues that Bur-
lington Homes, 246 NLRB 1029 (1979), has recently con-
trollingly reiterated the principle of this presumption
(also citing other cases), while the Charging Party adopts
such authority arguing too that Surface Industries, 224
NLRB 155 (1976), establishes the mere act of replace-
ment employees crossing picket lines is not a "clear and
unequivocal" sort of evidence that an employer may rely
on in claiming rebuttal of the presumption. Respondent
relies most heavily on Arkay Packaging Corp., 227 NLRB
397 (1976). It points to intriguing language in Arkay,7
contending too that long passage of time as shown here
is an objective consideration and that case authority of
the opposition is distinguishable.
The Board has expressly confined Arkay to its own
"unique circumstance" of apparent unit abandonment,8
and clearly adheres to the presumption of proportional
support by strike replacements. Windham Community
Memorial Hospital, 230 NLRB 1070 (1977); National Car
Rental System, 237 NLRB 172 (1978). The denial of en-
forcement in National Car Renta1, 9 including the court's
criticism of Windham, is noteworthy but I am bound by
the Board's view of this doctrine. There is no uniqueness
here that would warrant the application of Arkay, for
NABET has continuously shadowed this bargaining rela-
tionship in an effort to obtain institutionally what Re-
6 Two of the persons left their "radio engineer-technician" positions
into which they were hired as "Permanent Replacement for striking per-
sonnel" after recognition was withdrawn in November 1980.
7 Arkay, above at 397-398:
But, in the strike situation present in this case, it would be wholly
unwarranted and unrealistic to presume as a matter of law that,
when hired, the replacements for the union employees who had gone
on strike favored representation by the Unions to the same extent as
the strikers. . . . There is, therefore, at least as much justification for
not indulging in a presumption that the replacements favor the
Unions and for finding that Respondent had reasonable grounds for
not believing that to be so, as there is for finding, as we have, that it
was reasonable for Respondent to question the continued union ad-
herence of the striking employees.
8 The last sentence of what is quoted above from Arkay uses syntax
that obfuscates its exact rationale.
9 Reported at 594 F 2d 1203 (8th Cir. 1979).
spondent would not concede in bargaining. This in no
way weakens the thrust of Windham or National Car
Rental, and I conclude that nothing Respondent has ad-
vanced in its case amounts to a rebuttal of the continuing
presumption. This is particularly true when, as the
Charging Party observes, nothing in even the currently
stated view of the three surviving replacements shows
their discontent with NABET.
Accordingly, I render a conclusion of law that Re-
spondent, by withdrawing recognition from NABET and
thereafter failing and refusing to bargain with it, has en-
gaged in unfair labor practices within the meaning of
Section 8(a)(1) and (5) of the Act.
DISPOSITION
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed.'s
ORDER
The Respondent, Buckley Broadcasting Corporation of
California, d/b/a Station KKHI, San Francisco, Califor-
nia, its officers, agents, successors, and assigns, shall
I. Cease and desist from
(a) Continuing to withhold collective-bargaining rec-
ognition from the National Association of Broadcast Em-
ployees & Technicians, Local 51, AFL-CIO (NABET),
as such was withdrawn from it in November 1980.
(b) Refusing to bargain in good faith the NABET as
exclusive representative of employees in the following
bargaining unit:
All engineering and technical personnel employed
by Radio Station KKHI, including chief engineer,
but excluding all supervisors as defined in the Act.
(c) In any like or related manner interfering with, re-
straining, or coercing employees ia the exercise of the
rights guaranteed them by Section'! of the Act.
2. Take the following action necessary to effectuate
the policies of the Act.
(a) On request, bargain collectively with NABET as
exclusive representative of employees in the appropriate
bargaining unit described above and embody any under-
standing reached in a signed agreement.
(b) Post at its San Francisco, California place of busi-
ness copies of the attached notice marked "Appendix."
Copies of the notice, on forms provided by the Regional
Director for Region 20, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
1 ° If no exceptions are filed as provided by Sec. 102,46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
11 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
1348 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT continue to withhold recognition from
National Association of Broadcast Employees & Techni-
cians, Local 51, AFL-CIO (NABET), as had been with-
drawn from it by us in November 1980.
WE WILL NOT refuse to bargain in good faith with
NABET as exclusive representative of employees in the
following unit.
All engineering and technical personnel employed
by Radio Station KKHI, including chief engineer,
but excluding all supervisors as defined in the Na-
tional Labor Relations Act.
WE WILL NOT in any like or, related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with NABET as exclu-
sive representative of engineering and technical employ-
ees in the appropriate unit described above, and embody
any understanding reached in a signed agreement.
BUCKLEY BROADCASTING CORPORATION
OF CALIFORNIA, D/B/A STATION KKHI