NLRB v. King Radio Corporation, No. 119-68.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtMURRAH, , TUTTLE and BREITENSTEIN, Circuit
Citation416 F.2d 569
PartiesNATIONAL LABOR RELATIONS BOARD, Petitioner, v. KING RADIO CORPORATION, Inc., Respondent.
Decision Date17 November 1969
Docket NumberNo. 119-68.

416 F.2d 569 (1969)

NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
KING RADIO CORPORATION, Inc., Respondent.

No. 119-68.

United States Court of Appeals Tenth Circuit.

September 17, 1969.

Rehearing Denied November 17, 1969.


416 F.2d 570

Paul J. Spielberg, Attorney, N.L.R.B. (Arnold Ordman, General Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel and Peter Kinzler, Attorney, N.L.R.B., Washington, D. C., on the brief), for petitioner.

William G. Haynes, Topeka, Kan., (Lillard, Eidson, Lewis & Porter, Topeka, Kan., on the brief) for respondent.

Before MURRAH, Chief Judge, TUTTLE* and BREITENSTEIN, Circuit Judges.

MURRAH, Chief Judge.

This is a proceeding to enforce a Decision and Order of the National Labor Relations Board finding respondent guilty of violating Section 8(a) (1) by: its no talking and warning notice rule; threatening its striking employees with discharge, permanent replacement and loss of economic benefits; and violating Section 8(a) (5) and (1) by: unilateral wage changes; unilaterally contracting out bargaining unit work; and failing to bargain in good faith.

416 F.2d 571

Affirmatively, respondent was ordered to: (1) Abrogate the wage changes; (2) Bargain in good faith; (3) Upon request, reinstate all striking employees to available positions without prejudice to their wage rates, seniority and other rights and privileges. And if enough positions are not available, place all striking employees on a preferential hiring list.

When this case was here in 398 F.2d 14, to enforce an order of the Board, we sustained the Board's finding to the effect that the no talking and warning notice rule was a discriminatorily inspired violation of Section 8(a) (1) and (5). The no talking and warning notice rule involved here is but a continuation of the rule formerly condemned both by the Board and this court. We again sustain the Finding and Order of the Board based upon the condemned practice.

This brings us to the unilateral wage changes in the bargaining unit found to be a Section 8(a) (5) and (1) violation. Respondent suggests that a part of the wage change was required by the federally established minimum wage and prompted a good faith wage increase for all bargaining unit employees.

This argument seems plausible on its face. But the Board thought, not without justification, that the wage changes instituted as they were during negotiations on that very subject, were suspect of an 8(a) (5) violation. And when considered with the fact that the wage increases were inequitably distributed among the employees in the bargaining unit without regard to merit, a clear violation was shown.

Unilateral changes in wages and working conditions during negotiations concerning the same subject matter are clear manifestations of a lack of good faith bargaining and violate Section 8(a) (5). And this is so, even though the employer may have desired to reach an overall agreement. N.L.R.B. v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230; N.L. R.B. v. United Nuclear Corporation, 381 F.2d 972 (10th Cir.). Unilateral action in matters of this kind can be justified only after the parties have bargained in fact to an impasse. N.L.R.B. v. United Nuclear Corporation, supra.

The most then that can be said for respondent's position is that the unilateral wage changes were instituted after the point of impasse had been reached. Respondent insists that they were so instituted. The Board found to the contrary. And we quite agree. The wage changes were instituted during purported negotiations concerning that very subject. And if respondent was not bargaining in fact, it was not bargaining in good faith. And the violation is clearly manifest.

The Board found that respondent contracted bargaining unit work to a third party from April to June, 1967, without notice to or bargaining with the union concerning the work in violation of Section 8(a) (5) and (1). The Order is apparently based on the hypothesis that unilateral contracting out of any work is an 8(a) (5) violation. We cannot accept the hypothesis.

It is established that the replacement of employees in the existing bargaining unit with those of an independent contractor to do the same work under similar conditions is a mandatory subject of collective bargaining under Section 8(d). Fibreboard Paper Products Corp. v....

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16 practice notes
  • Unified School Dist. No. 279, Jewell County v. Secretary of Kansas Dept. of Human Resources, No. 63805
    • United States
    • United States State Supreme Court of Kansas
    • December 7, 1990
    ...oppressive nor contrary to the policies of the act, the court will not strike down a proposed remedy. N.L.R.B. v. King Radio Corporation, 416 F.2d 569, 573 (10th Cir.1969), cert. denied 397 U.S. 1007, 90 S.Ct. 1234, 25 L.Ed.2d 420 In N.L.R.B. v. Rutter-Rex Mfg. Co., 396 U.S. 258, 90 S.Ct. 4......
  • Pasco County School Bd. v. Florida Public Employees Relations Commission, No. CC-38
    • United States
    • Florida District Court of Appeals
    • November 16, 1977
    ...wages and working conditions has generally been held justified only after the parties have bargained to impasse. NLRB v. King Radio Corp., 416 F.2d 569 (10th Cir. 1969), cert. den. 397 U.S. 1007, 90 S.Ct. 1234, 25 L.Ed.2d 420. When the Board instituted its cuts on June 3, 1975, bargaining w......
  • AMCAR Div., ACF Industries, Inc. v. N.L.R.B., AFL-CIO-CL
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • February 6, 1979
    ...must be a substantial adverse effect on the bargaining unit in order for an unfair labor practice to occur. See NLRB v. King Radio Corp., 416 F.2d 569 (10th Cir. 1969), Cert. denied, 397 U.S. 1007, 90 S.Ct. 1234, 25 L.Ed.2d 420 (1970); District 50, United Mine Workers of America, Local 1394......
  • Western Massachusetts Elec. Co. v. N.L.R.B., Nos. 77-1328 and 77-1420
    • United States
    • U.S. Court of Appeals — First Circuit
    • March 23, 1978
    ...unit jobs performed by unit employees, however, an employer need not bargain with the union over the decision. NLRB v. King Radio Corp., 416 F.2d 569 (10th Cir. 1969), cert. denied, 397 U.S. 1007, 90 S.Ct. 1234, 25 L.Ed.2d 420 (1970); Westinghouse Electric Corp. v. NLRB, 387 F.2d 542, 547-4......
  • Request a trial to view additional results
16 cases
  • Unified School Dist. No. 279, Jewell County v. Secretary of Kansas Dept. of Human Resources, No. 63805
    • United States
    • United States State Supreme Court of Kansas
    • December 7, 1990
    ...oppressive nor contrary to the policies of the act, the court will not strike down a proposed remedy. N.L.R.B. v. King Radio Corporation, 416 F.2d 569, 573 (10th Cir.1969), cert. denied 397 U.S. 1007, 90 S.Ct. 1234, 25 L.Ed.2d 420 In N.L.R.B. v. Rutter-Rex Mfg. Co., 396 U.S. 258, 90 S.Ct. 4......
  • Pasco County School Bd. v. Florida Public Employees Relations Commission, No. CC-38
    • United States
    • Florida District Court of Appeals
    • November 16, 1977
    ...wages and working conditions has generally been held justified only after the parties have bargained to impasse. NLRB v. King Radio Corp., 416 F.2d 569 (10th Cir. 1969), cert. den. 397 U.S. 1007, 90 S.Ct. 1234, 25 L.Ed.2d 420. When the Board instituted its cuts on June 3, 1975, bargaining w......
  • AMCAR Div., ACF Industries, Inc. v. N.L.R.B., AFL-CIO-CL
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • February 6, 1979
    ...must be a substantial adverse effect on the bargaining unit in order for an unfair labor practice to occur. See NLRB v. King Radio Corp., 416 F.2d 569 (10th Cir. 1969), Cert. denied, 397 U.S. 1007, 90 S.Ct. 1234, 25 L.Ed.2d 420 (1970); District 50, United Mine Workers of America, Local 1394......
  • Western Massachusetts Elec. Co. v. N.L.R.B., Nos. 77-1328 and 77-1420
    • United States
    • U.S. Court of Appeals — First Circuit
    • March 23, 1978
    ...unit jobs performed by unit employees, however, an employer need not bargain with the union over the decision. NLRB v. King Radio Corp., 416 F.2d 569 (10th Cir. 1969), cert. denied, 397 U.S. 1007, 90 S.Ct. 1234, 25 L.Ed.2d 420 (1970); Westinghouse Electric Corp. v. NLRB, 387 F.2d 542, 547-4......
  • Request a trial to view additional results

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