Anderson, Clayton & Co.

National Labor Relations Board - Board Decisions

May 28, 1958

120 N.L.R.B. 1208 (N.L.R.B. 1958)

1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ultimate Findings and Conclusions
In summary, the Trial Examiner finds and concludes:
1. The evidence adduced in this proceeding satisfies the Board's requirements for
the assertion of jurisdiction herein 43
2. Local Union 349, International Brotherhood of Electrical Workers, AFL-CIO,
is a labor organization within the meaning of the Act.
3. The evidence adduced establishes that Respondent discharged Joseph DeSimone,
George H. Schwartz, Dimitry N. Alexander, Wilson Griffith, and Lloyd Gaynes, and
thereby violated Section 8 (a) (1) and (3) of the Act.
4. The evidence adduced establishes that Respondent interfered with, restrained,
and coerced employees in the exercise of rights guaranteed in the Act by the
aforementioned discharges and by interrogating employees as to their activity on
behalf of the Union and by threats of reprisal or force or promise of benefit and"
thereby violated Section 8 (a) (1) of the Act.
5. The aforesaid activities are unfair labor practices affecting commerce within;
the meaning of Section 2 (6) of the Act.
6. The evidence adduced does not establish that Respondent in violation of'
Section 8 (a) (5) of the Act refused to recognize and bargain with the Union.
[Recommendations omitted from publication.]
as Respondent engages in Miami, Florida, in the operation of a television station, and in
the course and conduct of its business broadcasts programs originating outside of Florida,
receives and transmits news and other material from and through the facilities of Na-
tional News service, and advertises products distributed throughout the United States.
Respondent's gross income annually exceeds $200,000.
Anderson, Clayton & Co. Foods Division and International Chem-
ical Workers Union and Local No. 635, International Chemical
Workers Union , AFL-CIO. Case No. 13-CA-2392. May 28,1958'
DECISION AND ORDER
On December 4, 1957, Trial Examiner Thomas.S. Wilson issued his
Intermediate Report in the above-entitled proceeding finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the copy of the Intermediate. Report at-
tached hereto. Thereafter, the General Counsel and the Charging
Union filed exceptions to the Intermediate Report and supporting
briefs. Respondent filed exceptions to certain findings of the Trial
Examiner therein and a brief in support of its exceptions and also in
support of the recommendation that the complaint be dismissed.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Rodgers and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing, and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
120 NLRB No. 156.
ANDERSON, CLAYTON & CO. 1209
Mediate Report, the exceptions and briefs,' and the entire record in the
case. It hereby adopts the Trial Examiner's findings and conclusions.
[The Board dismissed the complaint.]
1 While we adopt the ultimate findings, conclusions, and recommendation of the Trial
Examiner and shall dismiss the complaint, we do not adopt his dictum that Respondent
did not bargain in good faith as the question of good faith was not placed at issue either
in the pleadings, as the Trial Examiner so found, nor was it litigated. The Respondent's
exceptions to this dictum accordingly are found to have merit.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge duly filed on December 26, 1956, by International Chemical
Workers Union, AFL-CIO, and Local No. 635 thereof, herein referred to jointly as
the Union or individually as the International and Local No. 635, the General Counsel
of the National Labor Relations Board, herein called General Counsel' and the
Board respectively, by the Regional Director for the Thirteenth Region (Chicago,
Illinois), issued its complaint dated May 27, 1957, against Anderson, Clayton & Co.
Foods Division, herein called the Respondent, alleging in substance that: During
the negotiations with the Union on December 17, 1956, the Respondent refused to
continue negotiations in the face of a strike threat by the Union thereby violating
Section 8 (a) (1) of the Act; and (2) on or about January 9, 1957, at the end of
said strike, the Respondent refused to reinstate six named employees who had been
on an unfair labor practice strike because they assisted the Union and engaged in
concerted activities on its behalf in violation of Section 8 (a) (3) and Section 2
(6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the
Act. Copies of the complaint, the charge and amended charge, and notice of hearing
thereon were duly served upon the Respondent and the Union.
Respondent duly filed its answer wherein it admitted certain allegations of the
complaint but denied the commission of any unfair labor practices.
Pursuant to notice a hearing was held on July 31, and August 1, 1957, at Spring-
field, Illinois, before the duly designated Trial Examiner. The General Counsel,
the Union, and the Respondent were represented at the hearing by counsel or repre-
sentative. Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing upon the issues was afforded all parties. Oral
argument at the conclusion of the hearing was waived but briefs were received on
October 28, 1957, from both the General Counsel and the Respondent.
Upon the entire record in the case, and from his observation of the witnesses,
the Trial Examiner makes the'following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Anderson, Clayton & Co. Foods Division, a Delaware corporation, with its prin-
cipal office located at Sherman, Texas, and its plant located in Jacksonville, Illinois, is
engaged in the manufacture of vegetable oil products. The Respondent, in the
course, conduct, and operation of its plant, causes and, at all times material herein,
has caused large quantities of its finished products to be shipped and transported in
interstate commerce into and through the States of the United States other than the
State of Illinois.
During the calendar year 1956, the value of finished products sold and transported
by the Respondent to points outside the State of Illinois was in excess of $1,000,000.
Respondent is engaged in, and at all times material herein has engaged in, com-
merce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
International Chemical Workers Union and Local No . 635, International Chemical
Workers Union , AFL-CIO, are labor organizations admitting employees of the
Respondent to membership.
1 This term specifically includes the counsel appearing for the General Counsel at the
hearing.
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
On August 24, 1956, as a result of an election held theretofore the Union was
certified as the bargaining agent in a production and maintenance unit of the Re-
spondent 's employees in the Jacksonville , Illinois, plant . On September 19 2 the
Respondent and Union held their first negotiations meeting at which both parties
submitted contract proposals . Thereafter these parties continued to meet in 2-hour
sessions 2 or 3 times per week. On October 17, November 1 and December 4, the
Respondent republished its then proposals together with the contract clauses already
tentatively agreed upon. Respondent 's proposals uniformly provided for a termi-
nation date for the contract of July 1, 1959. As of December 4 there had been no
discussion regarding wages because , as the Respondent wrote all its employees
"The Company cannot discuss wages until the other costs of the contract have been
determined."
On December 12 the Respondent submitted to the Union what it called a "package
form" contract proposal which contained the Respondent's first wage proposals of
the negotiations, a 12-cent-per-hour increase in wages of which 5 cents was to be
paid from the date of the signing of the contract and 7 cents in addition to be
paid from July 1 , 1957. Also for the first time this proposal contained a reopener
for the negotiation of "general increase or decrease of wages as of July 1, 1958."
Other firsts contained in this proposal were an arbitration clause together with the
elimination of a clause making the general manager's decision final and binding,
elimination of the International Union as a party to the contract , a provision for
union bulletin boards and some minor changes in phraseology . Respondent's
letter of transmittal noted that the proposal contained no provision for a union
shop because the Respondent "firmly believes that no citizen of the United States
should be forced to join and pay dues" in order to have a job and no checkoff
provision because the Respondent believed that "a company should not serve as a
collection agency for any union."
In accordance with their agreement the Union submitted this proposal to its
membership on December 14 and 15 for acceptance or rejection . At these meetings
the membership voted to reject the proposal and then voted to strike at midnight
Sunday, December 16, unless its bargaining committee considered that progress was
being made in the negotiations.
President Coultas of Local 635 promptly notified General Manager Pack of the
Respondent of these two decisions by the union membership and requested a con-
tinuation of negotiations that same afternoon of December 15. Pack agreed to
meet Coultas that afternoon in order, according to his testimony , to satisfy himself
that the situation was sufficiently serious to warrant negotiating over the weekend
but refused to negotiate for the reason that Vice President and Personnel Director
McClanahan , a member of the Respondent 's negotiations "team," had returned to
Dallas, Texas , his home. Pack said that the Respondent could not negotiate as
they had agreed to conduct no negotiations unless all members of the team were
present. This limitation was self-imposed as Pack testified that he did have au-
thority to make decisions in negotiations for the Respondent . After meeting with
Coultas, who informed him that, unless the Respondent negotiated , the employees
were set to strike at 11:59 p. in. Sunday, December 16, Pack agreed to negotiate
on Sunday when McClanahan would be present.
On Sunday , December 16, the negotiations reopened with conciliators from both
the State and the Federal Services being present . Pack promptly requested the
Union to furnish the Respondent with what the Union considered to be the remain-
ing unresolved issues. In a private conference the Union listed some 7 or 8 such
issues, including union security , checkoff, contract duration , and several other
issues which were handed to the Respondent . Pack remarked that he felt that by
talking to his home office these issues probably could be resolved in short order
but that his home office in Texas was closed on Sunday. When Pack stated that he
would telephone his home office on Monday , the Union agreed to postpone the
strike for 24 hours until Monday midnight ( 12:01 a. in. Tuesday , December 18).
At the Union's suggestion it was agreed to meet again at I p . in. on Monday , instead
of at 10 a. in., so that Pack would have sufficient time to discuss the issues with his
home office.
2 All dates herein are in the year 1956 unless otherwise specified.
ANDERSON , CLAYTON & CO. 1211
The conciliators opened the December 17 meeting at 1 p. in. by reviewing the
events of the previous day and inquiring of Pack if he had been in touch with his
home office concerning the unresolved issues. Pack's answer was affirmative. Both
Pack and McClanahan voiced objection to the existence of the strike threat, com-
paring it to trying to negotiate with a gun at one's back . During this discussion
Pack made the statement that the Respondent could not or would not negotiate in
face of a strike threat.3 Gratz expressed amazement at Respondent 's position in
view of the fact that such a strike threat had been implicit ever since the Union's
certification and inquired if Pack believed more progress could be made if the
strike threat were removed . Pack agreed that he did whereupon Gratz said "The
strike threat is removed ." Then Pack said that the Respondent would meet with
the Union "to-morrow , the next day , next week and the following weeks" until the
issues were resolved. Gratz objected that the Union wanted to negotiate imme-
diately as they had gathered for that purpose .4 Following further references to the
strike threat , by Pack and McClanahan , Gratz accused Respondent of refusing to
bargain and added that the strike threat was "back on again ." At some point
during the afternoon ,5 Pack and McClanahan insisted that they were not saying
"No" to any union proposal. Finally the conciliators asked if the union committee
had authority to remove the strike threat indefinitely . The committee answered
that its sole authority was to postpone the strike so long as they were satisfied that
progress was being made and that it would have to consult the membership
regarding a removal of the threat for an indefinite period. After agreeing to recon-
vene at 6:30 that same evening, the meeting adjourned about 3:30 p. in. to permit
the union committee to consult the membership.
After the union negotiating committee had spoken to some 30 or 40 employees at
the plant gates , a decision was taken not to extend the strike deadline but to strike
immediately . The second shift scheduled to report for work at 4 p. in. refused
to report and the strike was on . It was 100 percent effective.
The meeting between the Union and Respondent negotiating committee scheduled
for 6.30 p. in that evening was not held . After conferring with McClanahan in
the hotel dining room just prior to this scheduled meeting, the conciliators decided
that nothing would be accomplished by holding the meeting under the circumstances
and therefore they canceled the meeting , a decision with which McClanahan
concurred.
Sometime during the period of-the strike the Union offered to allow the regular
crew employed at the Respondent 's boilerroom and gasplant to continue their
operations on a standby basis. Respondent chose to refuse this offer and to operate
both departments with its supervisory staff.
On December 30, the Respondent published a full-page advertisement in the
local paper offering "Permanent job opportunities for men " at the Respondent's,
plant . Plant Personnel Director Wegehoft interviewed and tested all the applicants
who appeared in response to this advertisement . By January 6, Wegehoft had
employed either 10 or 8 men.6 Seven of these employees worked on Sunday,
January 6, as common laborers. Having passed the ordinary qualifying tests for
employment at Respondent 's plant, these individuals became, in Wegehoft's
phraseology , "prospective permanent employees."
During the afternoon of January 6 Wegehoft noted that the truck which had
served as the Union 's headquarters on the picket line was being or had been removed.
He reported this fact to Pack.
8 Pack denied making any such statement while Respondent' s other witnesses denied
having heard Pack make such a statement Respondent 's witnesses insisted that Pack had
only stated that Respondent 's position had not changed in face of the strike threat.
The Trial Examiner is convinced that during his 2 1/2 -hour meeting Pack made both the
statements attributed to him by the Union as well as by the Respondent's witnesses
4 Respondent's witnesses insisted that Gratz had demanded concessions from Respondent
as a quid pro quo for removing the strike threat. Despite the leading question which in-
augurated this line of testimony , this suggestion was probably made.
5 The Trial Examiner has been unable to reconstruct the events of the December 17
meeting in their proper chronological order on the record made here.
9 Wegehoft _ claimed to have employed 10, but in describing when these men first worked
at the plant , Wegehoft referred only to the 8 who ultimately were employed either in the
boilerroom or the gashouse.
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Following a staff meeting at which it was decided to restaff the boilerroom and
gashouse immediately, Wegehoft during the afternoon and evening of that Sunday
notified seven of these newly employed persons of their assignment to, and shifts
at, either the gashouse or the boilerroom. The eighth man, Smith, was notified by
Wegehoft during the afternoon that he had been accepted for employment and,
after dinner that night, was further notified that he had been assigned to the midnight
shift in the gashouse. None of these individuals had had any experience or training
as boilerroom operators or gashouse operators.
At 1 a. in., January 7, Coultas on behalf of the Union notified Pack at Pack's
residence that the Union had voted on January 6 to call off the strike and to return
to work. For the Respondent Pack agreed to schedule the return to work of the
strikers as quickly as possible. No mention was made of the assignment of the new
boilerroom and gashouse operators at this time.
As a result the strikers reported for work at the gates the following morning
but were sent home at Pack's request until work schedules could be arranged. There-
after all the strikers were returned to work expeditiously with the exception of the
4 striking boilerroom operators and the 4 striking gashouse operators whom
Wegehoft refused to reinstate on the grounds that they had been permanently
replaced by the 8 men hired by the Respondent as the result of the advertisement. The
striking employees refused employment at this time were: Harry E. Hannofford,
Richard E. Bittan, Donald H. Bliming, Chester C. Lutkehes, Raymond Cummins,
Robert Ommen, Albert Zimmer and Robert Hart.
B. Conclusions
The complaint in this case frames two very narrow issues: (1) was the statement
made by Pack at the December 17 meeting to the effect that the Respondent would
not or could not negotiate a contract in the face of a strike threat, a violation of
Section 8 (a) (1); and (2) if so, did that statement cause the strike of that same
day, thereby making such strike into an unfair labor practice strike.
The allegation of the complaint is phrased as follows: "While engaged in collective
bargaining with the union on or about December 17, 1956, [Respondent] informed
the union that it would not negotiate for a contract as long as a strike threat existed."
The complaint further alleges that the above constituted interference, restraint,
and coercion in violation of Section 8 (a) (1) of the Act and that it caused the
strike that same day. It must be noted that the complaint does not charge the
Respondent with any refusal to bargain or violation of Section 8 (a) (5).
On December 14 and 15 the union membership voted to reject Respondent's
contract proposal of December 12, the result of 38-39 negotiation meetings covering
a period of 3 months, and to strike unless progress was made in the negotiations.
Clearly the basis for this action by the membership must have been that the
membership believed that the Respondent was not bargaining in good faith and
that something stronger than mere persuasion was necessary to achieve a satisfactory
contract. The basic documents of these long negotiations introduced in evidence
by the Respondent over the objection of the General Counsel do nothing to dispel
the correctness of that judgment but on the contrary, at least superficially, so far
as the documents go, would tend to confirm that judgment. However, regardless
of that because there is no issue posed here that the Respondent refused to bargain
in good faith, it is obvious that the membership believed that the Respondent was
not in fact bargaining and voted accordingly. Thus the Union brought the threat of
the use of its economic power into play in the negotiations.
So at the meeting of December 17 Pack countered this union maneuver with his
own statement that the Respondent would not or could not negotiate in the face of
a strike threat. But both Pack and McClanahan, who were experienced negotiators
admittedly knowing the statutory requirements of collective bargaining, were careful
to add that they were not saying "No" to any proposal but would negotiate with the
Union "tomorrow, the next day, next week and the following weeks" until the issues
were resolved. Obviously the Respondent was in no rush.
The law is well settled that neither a strike threat, nor an actual strike, relieves an
employer from the obligation to continue negotiations in good faith. If anything,
these events only enhance the necessity for continuing such negotiations . Hence,
superficially at least , Pack's statement, if taken at face value, constituted not only bad
law but also a refusal to bargain , if persisted in.
ANDERSON , CLAYTON & CO. 1213
However, in the instant case it is absolutely clear that Pack did not intend, and
the Union knew that he did not intend, the literal meaning of his words because of
his further statement as to the Respondent's willingness to bargain "tomorrow, the
next day, next week," etc. Experienced as he was, Pack was not going to violate the
procedural requirements of the Act, i. e., that the parties must sit down at convenient
times and talk. He was careful to avoid this error. The Union well knew that the
Respondent was not refusing to meet because, prior to the adjournment of the meeting
in the afternoon of December 17, the Respondent had already agreed to meet again
with them at 6:30 that evening.
Hence, despite the literal meaning of Pack's words, the Trial Examiner cannot find
under the circumstances of this case that Pack even threatened to violate the proce-
dural obligations of bargaining by refusing to meet at all or that the Unions under-
stood his words to constitute such a threat. Therefore, the Trial Examiner cannot
find that this ill-phrased statement constituted a violation of Section 8 (a) (1) of the
Act, the narrow issue framed by the pleadings.
Nor, on the facts presented here, can the Trial Examiner find that the Union's
decision to strike immediately taken following the adjournment of the December 17
afternoon meeting was caused by Pack's ill-considered statement. Actually the
Union's decision to strike was originally taken 3 days prior to the statement by Pack
and was based on the judgment that the Respondent was not bargaining in good faith
with the Union. Upon hearing the committee's report on the afternoon of December
17 to the effect that the Respondent had continued its stalling tactics, its unwillingness
to bargain in good faith and, perhaps, Pack's statement as an element in that refusal,
the union members merely confirmed their prior determination to strike and decided
to implement that decision immediately. At best Pack's statement could have been
considered by the membership only as one added element tending to confirm the
Respondent's lack of good-faith bargaining. If anything, Pack's statement was but
one small piece of evidence as to the Respondent's lack of good faith and not an un-
fair labor practice in, of, and by itself.
On the other hand the undue protraction of the negotiations, Respondent's obvious
tactic of delay, the negligible results achieved as disclosed by the documentary evi-
dence together with Pack's injudicious statement tended to indicate, while the Re-
spondent was scrupulous in conforming to the procedural requirements of collective
bargaining, i. e., willingness to'sit and talk, it may well not have been as scrupulous
in conforming to the substantive requirements of good faith in such talks. But, un-
fortunately for the General Counsel's case, the issue of the Respondent's good faith
was not placed at issue by the pleadings. , Consequently this substantive issue was
never presented for the Trial Examiner's consideration. Nor is the Trial Examiner
permitted under the pleadings to consider that issue in deciding the question of
whether this was an economic or an unfair labor practice strike.
Hence, in the absence of a clear allegation and proof that the strike was caused by
the Respondent's refusal to bargain and in view of the prior finding made herein that
Pack's statement in, of, and by itself did not constitute an unfair labor practice, the
Trial Examiner must find that the strike of December 17 was only an economic strike.
This being so, the strikers, being economic strikers, were entitled to reinstatement
upon request unless prior thereto they had been permanently replaced. If perma-
nently replaced, economic strikers lose their rights to reinstatement, unlike unfair
labor practice strikers.
Beginning January 2 the Respondent began interviewing persons in accordance
with its advertisement offering "permanent job opportunities." By the evening of
January 6 the Respondent had accepted 7 such persons for employment and had had
them working for 1 or 2 shifts as common laborers. On the afternoon of January 6,
Personnel Director Wegehoft notified another applicant named Smith that he also had
been accepted by the Respondent for permanent employment.
During the afternoon of Sunday, January 6, Wegehoft noted activity upon the
picket line and that the truck which the Union had been using as its picket line head-
quarters had been driven away. Wegehoft reported this activity to Pack. Thereafter
Wegehoft notified Smith that he had been assigned as an operator in the boilerroom
on the midnight to 8 a. in. shift and that he was to report to the boilerroom, on that
shift that same night. Wegehoft also notified the other seven employees of their
assignment to various shifts at either the boilerroom or the gasplant.
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As-found heretofore at 1 a. in., Monday, January 7, exactly 1 hour after the first
2 of these 8 men had reported to their respective assignments in the boilerroom or
gasplant for their first shift and before any of the other 6 men had so reported for
their first shifts, the Union notified the Respondent that its members had voted to dis-
continue the strike and to report back to work.
Also, as noted heretofore, the Respondent refused to reinstate any of the eight
striking boilerroom or gashouse employees on the grounds that they had been
permanently replaced prior to the termination of the strike and their request for
reinstatement.
The question, of course, becomes whether the 8 striking boilerroom and gashouse
employees were, in fact, permanently replaced by the presence on the job for 1 hour
of the 2 employees who actually reported for work on the midnight shift and by the
notification to the other 6 of their shift assignments in these 2 departments. The
replacements admittedly were totally inexperienced and without known aptitudes
or fitness for the jobs to which they had been assigned, jobs which require training
estimated at from 1 to 4 months or so. In addition the Respondent required a 6-
month probationary period for all new employees during which it was free to dis-
charge, transfer, or otherwise handle an employee without recourse on his part.
Such an employee acquired seniority rights only upon the expiration of this pro-
bationary period.
Despite all these matters, the lack of qualifications and experience, the probation-
ary requirement, and the fact that six of the co-called permanent replacements had
only received their assignment to these positions prior to the conclusion of the
strike and entered upon their duties only after the conclusion of the strike, the Trial
Examiner, believes that the employer had the right during the pendency of the
economic strike to assign anyone it cared to to work permanently on these jobs and
that such assignments must be considered as permanent replacements. It so happened
that 7 of these 8 replacements are still so employed after the completion of the
probationary period. The employment of the eighth man terminated during the
probationary period at which time the striker with the greatest seniority was rein-
stated in the boilerroom. Therefore, the Trial Examiner must find that the eight
striking employees of the boilerroom and gasplant had been permanently replaced
prior to the end of this strike.
Apparently the General Counsel introduced the evidence regarding Wegehoft's
knowledge of the removal of the union headquarters truck from the picket line prior
to the actual making of the assignments in the powerhouse, powerroom, and gas-
house to indicate a lack of good faith in the assignments. However, the Trial
Examiner does not believe that the issue of the bonafides of the assignment arises
here because of the fact that the removal of this truck might have been for so
many reasons other than signifying the end of the strike that the intended inference
cannot arise.
Although admitting to considerable doubt as to whether substantive justice will
be served by the result herein, the Trial Examiner is convinced that, under the issues
raised by the complaint, the Respondent has committed none of the unfair labor
practices charged therein and will, therefore, recommend that the complaint be
dismissed in its entirety.
Upon the basis of the foregoing findings of fact, and upon the entire record in
this case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Chemical Workers Union and Local No. 635, International Chem-
ical Workers Union, AFL-CIO, are labor organizations within the meaning of
Section 2 (5) of the Act.
2. Anderson, Clayton & Co. Foods Division is engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
3. The Respondent has not engaged in any of the unfair labor practices " charged
in the complaint.
The Trial Examiner recommends that the complaint herein be dismissed in
its entirety.