King Radio Corporation v. NLRB

• Citation: 398 F.2d 14
• Decision Date: 22 July 1968
• Docket Number: 9601.,No. 9587,9587
• Parties: KING RADIO CORPORATION, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent (two cases).
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

398 F.2d 14 (1968)

KING RADIO CORPORATION, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent (two cases).

Nos. 9587, 9601.

United States Court of Appeals Tenth Circuit.

July 22, 1968.

COPYRIGHT MATERIAL OMITTED

William G. Haynes, Topeka, Kan. (Lillard, Eidson, Lewis & Porter, O. B. Eidson, Philip H. Lewis, James W. Porter, Charles S. Fisher, Jr., Charles N. Henson, Peter F. Caldwell, Roscoe E. Long, R. Austin Nothern and Brock R. Snyder, Topeka, Kan., on the briefs) for petitioner.

Robert Lieber, Atty., N. L. R. B. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Paul B. Spielberg and Harold B. Zanoff, Attys., N. L. R. B., on the briefs) for respondent.

Before PHILLIPS, HILL and HICKEY, Circuit Judges.

PHILLIPS, Circuit Judge.

At all times material in these cases, King Radio Corporation, Inc.,¹ a Kansas corporation, was engaged in the manufacture of aircraft radios and related items in its two plants in Olathe, Kansas, where it annually receives materials and products of a value in excess of $50,000 directly from outside that state, and annually ships goods and products of a value in excess of $50,000 directly to customers outside that state. The jurisdiction of the National Labor Relations Board² in these cases is not challenged.

I No. 9601

This case is before the court upon a petition of King to set aside an order of the Board, issued June 30, 1967, and the cross-petition of the Board to enforce such order.

Charges were filed against King by Communications Workers of America, AFL-CIO,³ on August 31, 1966, and amended on October 5, November 8, and December 6, 1966. A complaint based on those charges was issued on November 30, 1966, and was amended on December 6, 1966.

The Union began its organizational drive in King's two plants on March 7, 1966, and requested recognition on April 12, 1966. A direction of election was issued on June 13, 1966. The election was held in the forenoon of June 30, 1966. The majority of the employees voted for the designation of the Union as the bargaining representative of an appropriate unit. The votes of employees designated as lead ladies were challenged, but regardless of how the persons whose votes were challenged voted, the Union would still have received a majority.

The Regional Director certified the Union as the exclusive bargaining representative of the unit on August 19, 1966.

1. Interrogation of Employee Hamblin

On April 28, 1966, William G. Haynes, a lawyer representing King, summoned employee Juanita Hamblin from her work and questioned her in private for over an hour. He did not advise her that she was free not to answer his questions if she did not desire to do so. He asked her why she was unhappy at her work and repeatedly asked her who else was dissatisfied and what they were unhappy about. When she stated there was some dissatisfaction respecting wages, he asked her whether there was anyone in particular who was dissatisfied as to wages.

The Trial Examiner found that Haynes's inquiries constituted subtle, but unmistakable inquiries about the union support of Hamblin and other King employees and put Hamblin under pressure to reveal information about union sympathies and activities of King's employees. He concluded the interrogation of Hamblin was coercive and violated § 8(a) (1) of the National Labor Relations Act, as amended⁴ (29 U.S.C.A. § 151 et seq.).

2. No-solicitation Rule

Prior to June 22, 1966, which was eight days before the election, King had not had a no-solicitation rule in its plants and had permitted solicitation in its plants during working hours for many causes, such as the United Fund, showers, flowers, birthday presents, and farewell gifts.

On June 13, 1966, King mailed to its employees nine election campaign letters, one on June 16, one on June 17, two on June 20, one on June 22, and four thereafter.

On June 22, 1966, James R. Harris, vice president of King, after consulting with Haynes, posted in the plant a no-solicitation rule, which read as follows:

"Inasmuch as we have received several complaints from various employees that they have been disturbed during working hours by other employees, we feel that it is necessary to establish the following rule:

"It will be considered a violation of Company Policy and cause for discharge for any employee to discuss politics, religion or engage in any type of solicitation for any cause during working hours in a work area inside the plant."

The Trial Examiner found that King discriminatorily promulgated the no-solicitation rule for the purpose of defeating its employees' organizational efforts, in violation of § 8(a) (1) of the Act.

3. Unilateral Changes

(a) No-Talking Rule and Warning Slips

On the afternoon of June 30, 1966, King promulgated orally, through its supervisors, a no-talking rule, forbidding employees to talk with each other during working hours. This was a radical change from a previous policy regarding talking among employees during working hours.

On that afternoon, after the election had been completed, assistant production superintendent Roberta Johnson advised production supervisor Martha Walker that "from this moment on" there was to be no talking and she meant absolutely no talking, and that the order came from production superintendent Robert Honn, whereupon Walker advised all of the employees on her production line of the provisions of the new rule. Thus, it will be seen that the new no-talking rule was promulgated after the election had been completed and the result of the voting made known.

Since the Union received a majority of the votes at the election, King, although it filed objections to the election, acted at its peril in unilaterally changing working conditions before the certification.⁵

On July 18, 1966, King introduced a policy of issuing warning slips for violation of the no-talking rule.

The Trial Examiner found that King acted in bad faith, for discriminatory purposes and in violation of § 8(a) (1) and (5) of the Act, in making changes in working conditions by adopting the no-talking rule on June 30, 1966, and instituting on July 18, 1966, the policy of giving warning slips for violations of such rule, without notifying the Union and giving it an opportunity to bargain about the changes.

(b) Deductions for Savings Bonds

One of King's employee benefits at the time of the election was its practice of making payroll deductions for savings bonds upon request. Several months before the election, Carroll J. Weltsch, the financial vice president of King, recommended that the practice of deductions for savings bonds be discontinued. Both Harris and production superintendent Bible dissented, stating, "it is a nice thing. We started with it, why not continue with it."

On the afternoon of June 30, 1966, immediately after the election, but without notice to the Union, King posted a notice dated June 30, 1966, stating, "Effective with the close of business today, the Company will no longer make payroll deductions for U. S. Savings Bonds."

The Trial Examiner found that the discontinuance of the deductions constituted a unilateral change in working conditions and an obvious reprisal and interfered with the § 7 rights of the bargaining unit employees.

(c) New Retirement Policy

At the time of the election on June 30, 1966, King had on its payroll an employee, Helen West, who had reached her 65th birthday on or before January 1, 1966. The only written policy which King had on retirement at that time was stated in its profit sharing plan, in a section concerning withdrawals on "Disability, Death Or Retirement." It read:

"Normal Retirement Date is the last day of the plan year in which male Participants have reached age 65, and female Participants have reached age 60.

"An optional Retirement Date may be established as some date prior to the Normal Retirement Date but subject to a written consent between the Administrative Committee and the Participants involved." (Emphasis supplied.)

At the time that plan went into effect on January 1, 1963, West was 62 years of age (two years older than the normal retirement age for women) yet she was allowed to participate in the plan. In fact, none of King's employees had been retired before the election. However, on July 22, 1966, four days after the employees returned from a vacation shutdown, King, without conferring with the Union, posted a notice entitled "Retirement," which read:

"It is the policy of the Company, that when an employee attains the age of 65, they shall retire from King Radio Corporation, Inc. However, employees that have reached 65 years of age, may be retained by the Company on a month to month basis, but in no case shall a full time employee be retained past the age of 70.

"All Fringe Benefits will be discontinued at the age of 65."

No action was taken under the new retirement notice with respect to West until August 10, 1966, when Mrs. Bible told West that September 1, 1966, would be her last day. Prior thereto, nothing had been said to her about retiring or losing any of her fringe benefits or seniority rights. Thereupon, West talked with Harris about her retirement. He told her that on September 1 she would be taken out of the profit sharing plan and that all her insurance and other benefits would cease, but that she could stay on until she was 70 on a month to month basis. When she asked Harris what the effect would be on her seniority rights, he told her that she would lose those rights also. West was constructively retired by King on September 2, 1966.

The Trial Examiner found that King unilaterally established the retirement policy after the election and retired West pursuant to that policy, after threatening her with the loss of her seniority, insurance, and other fringe benefits, and concluded that by making those changes in working conditions without consulting with the Union, King violated § 8(a)...