Kentile, Inc.

National Labor Relations Board - Board Decisions

Nov 20, 1963

145 N.L.R.B. 135 (N.L.R.B. 1963)

KENTILE, INC. 135
against its employees in violation of Section 8(a)(3) of the National Labor
Relations Act, as amended.
WE WILL NOT in any manner restrain or coerce the employees of Brewton
Fashions , Inc., a Division of Judy Bond , in the exercise of their right to self-
organization , to form, join , or assist labor organizations , to bargain collectively
through representatives of their own choosing , and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or protec-
tion , and to refrain from any or all such activities.
WE WILL, jointly and severally with United Garment Workers of America,
Local Union No. 422 , make whole Louise West, Kate Jones, Ruth Bell, Kathleen
Chavers, Lynn Estes , Fay Madden , Carolyn Grey Thompson , Orette McCall,
Doris Odum, and Ruth Johnson for any loss of earnings they severally suffered
by reason of the discrimination against them.
UNITED GARMENT WORKERS OF AMERICA,
LOCAL UNION No. 422,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, T6024
Federal Building ( Loyola ) 701 Loyola Avenue, New Orleans 12, Louisiana, Tele-
phone No. 529-2411 , if they have any question concerning this notice or com-
pliance with its provisions.
Kentile, Inc. and International Union of United Rubber, Cork,
Linoleum & Plastic Workers of America, AFL-CIO, Local No.
640. Case No. 21-CA--5198. November 20, 1963
DECISION AND ORDER
On August 1, 1963, Trial Examiner Henry S. Sahm issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in unfair labor practices as alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the attached Intermediate Report. There-
after, the General Counsel filed exceptions to the Intermediate Report
and a supporting brief and the Respondent filed a reply brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch sand Members Leedom and Brown].
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 In-
termediate Report, the exceptions and briefs, and the entire record
in this case, and hereby adopts the Trial Examiner's findings, con-
clusions, and recommendations only to the extent consistent herewith.
As described more fully in the Intermediate Report., the Union
was the bargaining representative of the Respondent's employees at
its Torrance, California, plant. On January 11, 1963, a majority of
the Respondent's employees, in violation of the then-current contract
145 NLRB No. 12.
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
between the Respondent and the Union,' went on strike in protest
over the discharge of employee Samuel Shook, who was president of
the Local. Representatives of both the International and the Local,
including Shook, attempted to persuade the strikers to return to work.
Thus, Shook and Wilson, the representative of the International, ad-
vised the strikers that the strike was unauthorized and urged them to
return to work; the Union posted a notice on the Respondent's bulletin
board, ordering the strikers "to return promptly" to work; and the
International's vice president telegraphed Shook saying that strikers
were engaged in an illegal work stoppage and that the strikers should
"cease the violation at once and resume normal production." On
January 15, the strikers voted to return to work provided no dis-
ciplinary action would be taken against them. On that same day,
Shook and two other union officials spoke to Steve Tallo, the Respond-
ent's plant manager, stating that they wished to discuss the ending
of the work stoppage and attempting to obtain assurance that no
disciplinary action would be taken against the strikers. Tallo, how-
ever, refused to discuss the matter with the union representatives.'
On the following day the workers began returning to work, and by
January 17 all strike activity had ceased.
The complaint alleged that the Respondent's conduct on January 15,
1963, in refusing to bargain with the Union respecting the return of
the strikers, violated Section 8 (a) (5) of the Act. The Trial Ex-
aminer recommended dismissal of the complaint, holding that the Re-
spondent was not obligated to bargain with the Union until the em-
ployees on strike had returned to work. In support of this result, he
relied principally on the fact that the strike was in violation of the
contract between the Respondent and the Union; that the strike was
not caused by the Respondent's unfair labor practices; and that the
Union conditioned its request to bargain regarding the return of the
strikers on the Respondent not taking any disciplinary action against
the strikers.
The General Counsel's exceptions raise issues of fact and of law.
In our view of the case, however, we deem it unnecessary to decide
1 This contract contained a no-strike no-lockout clause, and also obligated the Union to
take steps to terminate any unlawful strikes. Further , under the contract , the Respondent
was authorized to impose disciplinary measures upon, or discharge , any employee engaged
in an unlawful strike, subject to grievance and arbitration procedures . The contract also
provided that, in the event of an unauthorized strike, "neither party shall negotiate upon
the merits of the dispute until such time as the illegal action is terminated."
2 The record in this connection contains conflicting testimony as to Tallo's response.
Tallo testified that he said to the union representatives , " Sam [Shooks as you know,
according to the provisions of our contract , I can't discuss anything with you or any
member of this committee at this time until all of the employees come back to work and
then we will sit down and put our grievance procedure in motion ." On the other hand,
Shook's testimony , which was corroborated by Marino , another union official , was that
Tallo responded , "I can't talk to you, Mr. Shook. I no longer recognize you as president
of the local . You are nothing but a discharged employee ." The Trial Examiner failed to
make credibility findings with respect to this conflicting testimony.
KENTILE, INC. 137
these issues. In this connection, we note that the Respondent's em-
ployees, including Shook, have returned to work, and after the strike
ended the parties continued in effect their then-current contract. Fur-
ther, we take official notice of the facts that pursuant to a representa-
tion petition filed by Local 692, International Brotherhood of Team-
sters, the Board, on October 1, 1963, conducted an election among the
Respondent's employees (Case No. 21-RC-8536) ; that the results of
the election showed that 99 votes were cast for Local 692, Teamsters,
40 votes were cast for the Union herein, and 3 votes were cast for no
union; and that no objections were filed to the conduct of this elec-
tion. Finally, we note that the record herein contains no evidence of
union animus by the Respondent and that it was not charged that the
Respondent otherwise violated the Act.
In view of these circumstances, we are convinced that it would not
effectuate the policies of the Act to issue an order requiring the Re-
spondent to bargain with the Union. Accordingly, without passing
on the findings by the Trial Examiner that the Respondent did not
violate Section 8(a) (5), as alleged, we shall dismiss the complaint
herein 3
[The Board dismissed the complaint.]
8 See Rene Benvenuti et al., d / b/a Fabrica de Mueble8 Puero Rico , 107 NLRB 905.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed on February 14, 1963, by International Union of United
Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, Local #640,
the Regional Director for the Twenty-first Region issued a complaint on April 15,
1963, against Kentile, Inc., Respondent herein, alleging violations of Section 8(a) (5)
of the National Labor Relations Act (29 U S.C. Sec. 151, et seq.), herein called
the Act, in that the Respondent's plant manager refused to recognize or negotiate
with the local union's president . The Respondent in its answer denied the com-
mission of any unfair labor practices.
Pursuant to notice a hearing was held before Trial Examiner Henry S. Salim on
May 10, 1963. All parties were represented. Briefs were filed by the General
Counsel and Respondent on June 5, 1963, which have been fully considered. How-
ever, the Trial Examiner finds no occasion for lengthening this report by citing,
distinguishing, or discussing the cases cited by the parties, because it is believed that
the controlling reasons for this decision are sufficiently discussed in later sections of
this report.
Upon consideration of the entire record and the briefs of the parties, there are
hereby made the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Kentile, Inc., is a New York corporation engaged in the manufacturing of flooring
at its Torrance, California, plant, which is the only one involved in this proceeding.
During the last 12 -month period , which is representative , Respondent sold and shipped
products manufactured at its Torrance , California , plant which are valued in excess
of $50,000, directly from Torrance to customers located outside the State of Cali-
fornia. It is found, therefore , that Respondent is now and at all times material
herein has been an employer engaged in commerce , and in a business affecting
commerce, within the meaning of Section 2(6) and (7) of the Act.
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATIONS INVOLVED
Local #640, herein called the Union, is affiliated with the International Union
of United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, herein
called the International. The Union and the International both are, and at all times
material herein have been, labor organizations within the meaning of Section 2(5)
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES'
A majority of the members of Local 640, employed at Respondent Kentile's
Torrance, California, plant went on strike on January 11, 1963, in protest over the
discharge of their union president, Shook, who was also employed by Respondent.
Shook remonstrated with the employees, explaining that their going on strike was
unauthorized and an illegal work stoppage and he importuned them to return to
work but to no avail. L. S. Wilson, the International Union's representative, also
attempted to prevail upon the striking employees to return to work explaining that
the strike was not authorized by the International but he too was unsuccessful. In
addition, a notice was posted by the Union on the company bulletin board ordering
the strikers "to return promptly" to work.2 On the same day, January 11, the
International's vice president sent a telegram to Shook, president of Local 640,
which reads as follows:
International advised that certain members of Local Union 640 are engaged in
illegal stoppage of work. The illegal work stoppage now in progress is un-
authorized, is in violation of the current agreement and is contrary to law. The
employees are directed to cease the violation at once and resume normal pro-
duction. Employees involved are exposing themselves to disciplinary action
and will have little chance for any remedy.
On Saturday, January 12, a membership meeting of the local was held and again
various union officials ordered the striking members to return to their jobs. A vote
was taken and they voted to continue on strike. At a membership meeting on
January 15, the members voted to return to work, provided their local's officers were
assured by the Respondent company that no disciplinary action would be taken
against any of the strikers.3
That same day, January 15, after the strikers had voted to return to work, Shook,
president of the local, accompanied by Marino, secretary, and Enlow, treasurer,
went unannounced to the office of Steve Tallo, Respondent's plant manager. The
following testimony is Shook's version of what occurred at that time:
I said to [Tallo] "I would like to speak to you about getting the fellows back
to work." He said, "I can't talk to you. I consider you nothing more than a
discharged employee .... " I said you may consider me a discharged em-
ployee, but what I have to say is very important and I feel that it will bring this
illegal work stoppage to an end. I just came from a membership meeting and
the fellows have decided to come back to work if there are no repercussions,
disciplinary action taken against any of the strikers . . . . [Tallo] said "I
can't talk to you, Mr. Shook. I no longer recognize you as president of the
local. You are nothing but a discharged employees." 4
Plant Manager Tallo's version of what occurred when Shook, accompanied by
the local's treasurer and secretary, came to his office unannounced, reads as follows:
Mr. Shook said, "Mr. Tallo, we would like to see you and have some words
about settling this strike and make sure there will be no disciplinary action
taken." I said, "Sam as you know, according to the provisions of our contract,
' There is no substantial dispute over the basic facts concerning the alleged violation of
Section 8(a) (5). The controversy is mainly as to the legal conclusions to be drawn from
the facts
2 This was In accordance with the provisions of article 18 B of the agreement between
the Company and the Union.
3 The strikers began to return to work on January 16
4 The charge filed on February 14, 1963, by counsel for the International Union, the
Charging Party, reads as follows: "The Employer has discharged Sam Shook, the duly
elected President of Local #640, of the United Rubber, Cork, Linoleum & Plastic Workers
of America, AFL-CIO Union and refuses to permit him to enter the plant and continues
to refuse to permit him to enter the plant for the purpose of processing grievances and
otherwise administering the contract currently in effect between the Employer and the
Union."
KENTILE, INC. 139
I can 't discuss anything with you or any member of this committee at this
time until all of the employees come back to work and then we will sit down
and put our grievance procedure in motion."
Issue
The threshold question in this case is whether the refusal of Tallo to negotiate on
January 15 , 1963, with Shook under the circumstances detailed above is a violation
of the Act within the meaning of Section 8(a) (5).
Contentions
The unauthorized walkout of January 11, 1963, contends the General Counsel,
was an eventuality anticipated by Respondent 's contract with the Union and specifi-
cally covered by its terms . Article 18 of the contract , he argues , obligates the
Union "in the event of an unauthorized strike . . . [to] take whatever lawful steps
are necessary to bring about an immediate termination of such activity ." There-
fore, his argument continues , the Union as soon as it learned of the walkout made
every effort to live up to this contractual obligation . The Local as the bargaining
representative of Respondent 's employees was attempting to fulfill this contractual
obligation when Plant Manager Tallo refused to consult with Shook , the Local's
president . In these circumstances , contends the General Counsel, the Respondent
was bound not to interpose arbitrary obstacles to the Union 's efforts to end the strike
but to assist them by conferring with the Union's represenatives . Accordingly,
concludes the General Counsel , the Respondent , by its refusal to consult with rep-
resentatives of the Local on January 15, 1963, violated Section 8(a)(5) of the Act.
Respondent, on the other hand, urges that article 18 of the contract explicitly
bars strikes, provides for the discipline or discharge of employees involved, and
further states that:
In the event there is any unauthorized strike, stoppage of work, slowdown
or other interruption of work during the term of this agreement , neither party
shall negotiate upon the merits of the dispute until such time as the illegal
action is terminated.
It necessarily follows, contends Respondent, that because of the illegal strike, it
was under no duty to bargain with regard to the return of the strikers or the
modification of the clause in the contract which states that ,in the event the no-strike
provision is breached , the Company may impose disciplinary action or discharge the
employees involved.
Conclusions
The collective-bargaining agreement between Respondent and the joint bargaining
representatives of its employees ( the Local and the International , collectively re-
ferred to herein as the Unions ) contains a no-strike clause which reads as follows:
ARTICLE 18. STRIKES AND LOCKOUTS
A. There shall be no strikes, stoppages , slowdowns , picketing or boycotts
at the plant. The Employer agrees that there shall be no lockouts.
B. In the event an unauthorized strike, slowdown, deliberate curtailment of
production , work stoppage or other interruption of work occurs during the term
of this agreement, the Union, its officers and agents , will take whatever lawful
steps are necessary to bring about an immediate termination of such activity.
Among other things the Union will immediately, upon notification from the
Company, deliver the following notice to the Company who will post it on
the bulletin boards and otherwise furnish such notice to the employees:
* * * *
An authorized officer of the Local Union or an authorized officer or agent of
the International Union, or both, shall sign the notice above referred to. Also,
upon written notice the International Union will immediately notify the Union
by telegram , a copy of which will be sent to the Company, that the strike,
stoppage , slowdown or other interruption of work is unauthorized and that the
employees involved should immediately cease the violation.
C. It is understood and agreed that if the Union complies with the provisions
of Paragraph "B" of this Article 18 there shall be no liability on the part of the
International Union , the Local Union , or their officers and agents who do not
participate in such activity by reason of any unauthorized strike, slowdown,
deliberate curtailment of production , work stoppage , or other interruption of
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work by employees during the term of this agreement. In the event of a
violation of this provision by an employee of the Company, the company may
impose proper disciplinary measures upon, or discharge the employee involved,
subject to the grievance and arbitration provisions of this agreement.
D. In the event there is any unauthorized strike, stoppage of work, slowdown
or other interruption of work during the term of this agreement, neither party
shall negotiate upon the merits of the dispute until such time as the illegal
action is terminated.
The United States Court of Appeals for the District of Columbia in Boeing Air-
plane Co. v. N.L.R.B.S held that the employer did not engage in unfair labor practices
in violation of Section 8(a)(5) of the Act by refusing to bargain with a union after
the union violated a no-strike clause of the collective-bargaining agreement.
In Valley City Furniture Company 6 the Board held that the employer did not
violate the Act by refusing to reinstate strikers who had participated in an illegal
strike unless they submitted to personal interviews. The employer' s insistence on
personal interviews was a legitimate disciplinary action, stated the Board, which
had a direct relation to the unprotected strike and the employer had no duty to
meet with the union representatives while the union engaged in the illegal strike-
The Board held it is s-
well-stated rule that an employer's duty to bargain is suspended while a union
is engaged in unprotected activity . [the employer] was under no obliga-
tion to speak with the union while it was engaging in such threats. Were we
to hold otherwise, we would be encouraging the use of threats of unlawful
and unprotected action to force concessions from an employer. Such a result
would be contrary to the policy objectives of the Act. Accordingly, we find
that ... [the employer's] refusal [to bargain] was privileged and in no way
violated the Act.
A case dispositive of the issue in this proceeding is Charles E. Reed & Co.,7 where
the Board held an employer's refusal to bargain with a certified union during a
strike which was in violation of a no-strike clause was not a violation of Section
8(a)(5) since the union's offer to bargain was conditioned upon reinstatement of
the strikers and the processing of the grievance which caused the strike. Under
such circumstances, stated the Board, the company could lawfully refuse to negotiate
with the union, while the strike was in progress
Under the facts and circumstances presented in this proceeding, the action of this
group of employees in leaving the plant and refusing to return to work was not
only an unprotected activity but also constituted interference with the orderly proce-
dures agreed to by the Union and Company and carefully provided for in the
collective-bargaining agreement in the event that the type of situation occurred
which did in this case. The Union, the employees' bargaining representative, did
not call for, authorize, or sanction the action taken by them A line must be drawn,
therefore, between permissible strikes and improper methods of pursuing permissible
objectives.
Furthermore, the purpose of the Act was not to guarantee to employees the right
to do as they please but to guarantee to them the right of collective bargaining for
the purpose of preserving industrial peace. There can be no effective adjudication
of disputes arising in day-to-day employer-employees relationships if employees are
at liberty to ignore the agency thus established and take matters into their own hands
No surer way could be found to bring collective bargaining into general disrepute
than to hold that "wildcat" strikes are protected by the Act.8 To hold otherwise
would permit parties to deliberately ignore binding commitments embodied in a con-
tract. would open the door to subterfuges, and would tend to defeat, rather than
to effectuate, the policies of the Act.
Moreover, the employees' refusing to heed their Union's orders to return to work
constituted unprotected activity as it necessarily tends to usurp the authority of their
bargaining representative and to embarrass it in the conduct of is bargaining obliga-
tions. To find this unauthorized strike licit would not only be tantamount to ignoring
the specific provisions of the parties' collective-bargaining agreement but also would
require Respondent to infringe upon the statutory rights which the Union possesses
as the employees' exclusive representative. To uphold the General Counsel's theory
e174F 2d988
e 110 NLRB 1589.
776 NLRB 548
e See N.L R B. v. Sunbeam Lighting Company, Inc, 318 F 2d 661 (C A. 7).
FLORENCE PRINTING CO. 141
would thus place the Respondent in the dilemma of violating Section 8(a)(5) by
refusing to bargain under the unprotected strike circumstances revealed in this case.
the strike weapon is not an unqualified right.... [The Board's and Courts']
repeated solicitude for the right to strike is predicated upon the conclusion that
a strike when legitimately employed is an economic weapon which in great
measure implements and supports the principles of the collective bargaining
system .9 [Emphasis supplied.]
It would appear, therefore, in applying the applicable law to the facts in this case,
that where the illegal strike, which was not caused by any unfair labor practice of
the Respondent Company, violated the no-strike clause in the parties' collective-
bargaining agreement, and the Union's request to bargain was conditioned upon no
disciplinary action being taken against the unauthorized strikers, the company was
not legally bound to bargain with the Union while the strike was still in progress.
It is found, accordingly, in view of the foregoing conclusions, and upon the entire
record, that the Respondent's refusal to bargain on January 15, 1963, until the
strikers returned to work was not violative of Section 8(a)(5) of the Act. It will,
therefore, be recommended that the complaint be dismissed in its entirety.'°
9 N.L.R.B. v. Erie Resistor Corp., 373 U.S. 221.
10 The conventional conclusions of law which are customarily repeated at this point are
omitted as they will be found in the body of the Intermediate Report.
Florence Printing Co. and Charleston Typographical Union No.
43. Case No. 11-CA-2028. November 21, 1963
DECISION AND ORDER
On May 27,1963, Trial Examiner W. Gerard Ryan issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Intermediate Report. There-
after, the Respondent filed exceptions to the Intermediate Report and
a brief in support thereof.
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 McCulloch and Mem-
bers Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the Respondent's exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.'
1 As the record, exceptions , and brief adequately present the issues and the positions of
the parties, the Respondent 's request for oral argument is denied.
The Respondent contends in its brief that the unit found appropriate by the Trial
Examiner is inappropriate because it includes teletype operators and proofreaders, who,
among other considerations, work in a separate room from composing room employees.
We find no merit in this contention , which has been considered in the Intermediate Re-
port. Also, we note that the Union, in its written request for recognition presented to the
Respondent on June 25 , 1962, specified that it sought to include machine composition em-
145 NLRB No. 13.