Mackay Radio and Telegraph Co., Inc.

National Labor Relations Board - Board Decisions

Oct 11, 1951

96 N.L.R.B. 740 (N.L.R.B. 1951)

'740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 102.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions,
and order and all objections thereto shall be deemed waived for all purposes.
MACKAY RADIO AND TELEGRAPH COMPANY, INC., and JOSEPH T. MAZ-
ZOLO AND FREDERICK W. ROBITZER, ON BEHALF OF THEMSELVES AND
OTHERS
MACKAY RADIO AND TELEGRAPH COMPANY, INC., anti FREDERICK W.
ROBITZER AND LADISLAV C. BREUER ON BEHALF OF THEMSELVES AND
OTHERS
COMMERCIAL CABLE COMPANY and HARRIET BERGER , ON BEHALF OF
HERSELF AND OTHERS. Cases Nos. 2-CA-285, P2-CA-411, and
2-CA-'61. October 11, 1951
Decision and Order
On February 5, 1951, Trial Examiner Horace A. Ruckel issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had not engaged in any of 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 attached hereto. Thereafter, the General Counsel and the
charging parties filed exceptions to the Intermediate Report and
supporting briefs, and the Respondents filed a brief in support of the
Intermediate Report. The Respondent and the charging parties have
also requested oral argument. The requests for oral argument are
hereby denied as the record and the exceptions and briefs, in our
opinion, adequately present the issues and the positions of the parties
with respect to the matters herein decided.
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial error was committed.' The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
exceptions and briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, with the additions and modifications set forth below.
1. The Trial Examiner found, and we agree, that the strikers for-
feited the protection of the Act by engaging in an unlawful strike,
In view of our decision herein, we deem it unnecessary to, and do not, decide whether
the Trial Examiner properly (a) denied the motion of the charging parties to reopen the
record herein, and (b) excluded from consideration evidence pertaining to negotiations
between All America and the representative of its employees, and to communications from
All America to its striking employees.
96 NLRB No. 106.
MACKAY RADIO AND TELEGRAPH COMPANY, INC. 741
and that it would not effectuate the policies of the Act to order that
they be reinstated. As found by the Trial Examiner, ACA, during
the prestrike negotiations, demanded that the Respondents agree to
certain unlawful union-security proposals.2 During the negotiations,
and, in fact, until the very eve of the strike, ACA refused to modify
its position that the Respondents accede to its unlawful demands.
Thus, ACA refused to accept the Respondents' offer of a union-security
contract which conformed to the requirements of the amended Act;
failed to submit to the Respondents revisions of its and the Re-
spondents' union-security proposals, although it had agreed to do so;
and, at the last meeting before the strike, demanded to know whether
the Respondents would reconsider its wage and union-security pro-
posals.3 Moreover, there is no evidence that ACA, at any time during
the strike, modified or abandoned its prestrike proposals; rather, the
execution of a union-security contract remained *one of ACA's principal
objectives throughout the strike.
In addition, at no time relevant to this proceeding did ACA either
comply with the filing requirements of the Act or indicate that it in-
tended to comply therewith. Nor is there evidence that ACA would
have been willing to postpone the effectiveness of any otherwise lawful
union-security contract which it might negotiate until it had complied
with such filing requirements and had been authorized, in an election
conducted pursuant to Section 9 (e) of the Act, to execute such an
agreement. Rather, ACA's rejection of the Respondents' offer of a
union-security clause conforming to the requirements of the Act indi-
cates that ACA had no intention of accepting a contract contingent
upon its compliance with the requirements of the Act. Hence, no
union-security contract which ACA would have been willing to execute
would have been lawful under the amended Act .4
Considering all the foregoing facts as a whole, the conclusion is
inescapable, and we find, that ACA adamantly insisted that the' Re-
spondents agree to an unlawful union-security contract, and that the
strike was called and prosecuted, at least in substantial part, to compel
the Respondents to accede to ACA's demands for such an unlawful
contract. Such a strike, to compel the Respondents to violate a clear
congressional mandate, as expressed in Section 8 (a) (3) of the Act,
2 We find unlawful, as did the Trial Examiner, ACA's "Probationary Period" proposal
and clause b of its "Discharges" proposal of December 11, 1947, as more fully set forth
in the Intermediate Report. American Pipe and Steel Corporation, 93 NLRB 54 We
therefore find it unnecessary to, and do not, pass upon the Trial Exanriner's findings that
certain of ACA's other proposals were unlawful, or that the totality of ACA's proposals,
it accepted, would have permitted ACA to maintain an unlawful closed shop.
' In addition to the question of union security, there were various other unresolved issues
between ACA and the Respondents at the time of the strike.
:bld Town Shoe Company, 91 NLRB 240, relied upon our dissenting colleague, is dis-
tinguishable In that case, unlike this, the evidence failed to establish that the union
would not have agreed to a lawful contract.
974176-52-vol 96-48
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was a strike which, if ACA had been a respondent , we would have
found to violate Section 8 (b) (2) of the Act; 5 the strike was therefore
unlawful from its inception.e By participating in such strike, the
'strikers forfeited their rights to the protection of the Act.7
The General Counsel and the charging parties, as well as our
dissenting colleague , contend nevertheless that, even assuming the
illegality of the strike, the Respondents condoned the strikers' par-
ticipation therein, and therefore cannot now assert the illegality of the
strike as a defense in this proceeding. However, we do not believe that
the principle of condonation should be applied in this case to the
strikers who, as we have held, participated in a strike which was un-
lawful from its inception, and not merely unprotected."
As our dissenting colleague points out, the Board has -heretofore
consistently held that an employer who condones his employees' par-
ticipation in unprotected activities thereby waives whatever rights lie
may have had to discipline them for such activities. Our decision
herein is not inconsistent with those holdings. None of those cases
has involved activities which in themselves constituted from their
inception a violation of the very Federal law under which relief was
being sought. Such cases involved either (a) violence or other similar
conduct during the course of otherwise lawful, albeit not always pro-
tected, concerted activity; 9 or (b) participation in concerted activity
-which the Board for policy reasons held to be unprotected.10 In those
cases it was principally the employer's interests which were unduly
jeopardized by the employees' unprotected activity. Hence, if the
employer was willing to condone the employees' conduct, there were
no basic public policy considerations which precluded the Board from
giving effect to such condonation.
However, we believe that this case stands on a different footing. As
-already stated, the strike herein not only sought to compel the Re-
6 See National Maritime Union of America , 82 NLRB 1365 ; American Radio Association,
at al , 82 NLRB 1344 ; National Maritime Union of America , et al, 78 NLRB 971 ; enf 175
F 2d 686 ( C. A 2), cert den 338 U. S. 954.
0 Although certain of ACA's strike objectives may have been lawful , the Board has held
that activity which has both a lawful and unlawful objective is unlawful Medford Build-
ing d Construction Tiades Council of the American Federation of Labor, at at ., 96 NLRB
165
i The American News Company, Inc., 55 NLRB 1302 . We regard the cases relied upon
by our dissenting colleague , in which the Board limited the applicability of the American
News doctrine , as inapplicable to a case such as this , in which the record clearly demon-
strates the strikers ' determination to compel the Respondents to violate the Act.
8 We find it unnecessary , therefore , to pass upon the Respondents ' contention that they
did not In fact condone the strikers ' participation in the unlawful strike
0 See, for example, The Hoover Company, 90 NLRB 1614 , 1622 ( mass picketing), set
aside on other grounds , 191 F . 2d 380 ( C. A 6) ; The Carey Salt Company, 70 NLRB 1099
(plant seizure ) ; Acme-Evans Company, 24 NLRB 71 , 100 (violence ), enf 130 F 2d 477
(C. A. 7), cert. den 318 U . S 732 ; Stewart Die Casting Corporation , 14 NLRB 872, 896
( sitdown strike ), enf 114 F 2d 849 (C A 7 ), cert. den. 312 U. S. 680.
10 See, for example, the following cases involving strikes in breach of contract Alabama
Marble Company, 83 NLRB 1047 , enf 185 F. 2d 1022 (C. A. 5) : E. A. Laboratories, Inc,
80 NLRB 625 , 86 NLRB 711 , enf. 188 F 2d 885 (C. A. 2 ) ; The Fafnir Bearing Company,
73 NLRB 1008 , 1013, The Carey Salt Company , supra.
MACKAY RADIO AND TELEGRAPH COMPANY, INC. 743
:spondents to violate the Act, but in itself constituted action which in an
appropriate proceeding we would have found to violate Section 8 (b)
(2) thereof. Accordingly, the strike in this case not only adversely
affected the interests of the Respondents, but from its inception also
contravened the public policy, as expressed in the Act of Congress,
against conduct by unions and their agents such as is proscribed by
Section 8 (b) (2). It is the task of the Board to enforce this public
policy; and even though the Respondents in this case may have con-
doned conduct violative of such policy, the Board itself has no license
to overlook such conduct. Under Section 10 (c) of the Act, the Board
may order reinstatement or back pay for discharged employees only
when such an order will effectuate the policies of the Act. We are
-unable to perceive how it will effectuate the Act's policies to give relief
to employees who have engaged in conduct violative of those policies.
To do so would place the Board in the position of encouraging,
through its remedial processes, conduct subversive of the statute. It
is rather incumbent upon the Board in a case such as this to discourage
such conduct by denying any remedy to employees who have engaged
therein. This result, we believe, is in accord with the decision of the
Supreme Court in the Southern Steamship case," which held that an
employer might lawfully discharge employees for engaging in a strike
which was tantamount to mutiny, and hence a Federal crime, even
though the employer had permitted the strikers to work for a time
after the strike without raising the issue of its legality.
We do not here hold, as our dissenting colleague suggests, that par-
ticipation in an unlawful strike automatically terminates the strikers'
employment relationship. We decide no more than is required by
the facts in this case : namely, that the employees who participated in
the unlawful strike of the kind herein found may not invoke the pro-
tection of the Act because they were denied permanent reinstatement
at the end of that strike, even though the Respondents may have failed
to assert the illegality of the strike as the basis for denying reinstate-
ment to such strikers. As the question is not now before us, we do not
decide whether an employer, after permanently reinstating employees
who participated in an unlawful strike, may subsequently discharge
or otherwise discipline them for having engaged in such activity.
2. In view of the unlawful character of the strike, the Respondents
were privileged to solicit the return of the strikers in an effort to
terminate the strike, and at the end of the strike to discharge, disci-
pline, or reinstate on their own terms employees who participated
Southern Steamship Company v National Labor Relations Board, 316 U S 31. We
(10 not regard the decision of the court of appeals in Hoover Company v N L. R B., 191
F. 2d 380 ( C A. 6), relied on by our dissenting colleague, as controlling on this question
The Boaid in that case found that the boycott was lawful , hence it had no occasion to
consider whether the principle of condonation should be applied , as a matter of Board
policy, in the case of an unlawful boycott.
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therein. 12 As it is unnecessary to our decision, we express no opinion
as to the legality of the Respondents' actions under other circum-
stances.13 We find, accordingly, (a) that the Respondents' solicita-
tion of the strikers in this case did not violate the Act; 14 and (b) that
the Respondents' restaffing policy as announced, and as applied upon
the conclusion of the strike and during the so-called period of "flux,"
was not unlawfull°
3. For the reasons stated in the Intermediate Report, we agree with
the Trial Examiner that the discharge of Campbell, Nathan, Turiak,
and Dzuri, all of whom had been permanently reinstated, was for cause
and unconnected with the strike or union activities and not in violation
of the Act.
Order
IT IS HEREBY ORDERED that the complaint herein against Mackay
Radio and Telegraph Company, Inc., and Commercial Cable Com-
pany, be, and it hereby is, dismissed.
MEMBER HOUSTON, dissenting :
I must dissent from my colleagues' decision that the complainants
in this proceeding engaged in an unlawful strike; and from their con-
clusion, without precedent in Board history, that the principle of con-
donation ought not to be applied to the facts in this case.
The complainants ought not to be denied relief because I cannot
find on this record that the strikers consciously sought to compel the
Respondents to do something which would necessarily have resulted
in the Respondents violating the Act. During the prestrike negotia-
tions, the Union made various proposals on matters concededly legiti-
mate subjects for collective bargaining, including union security,16
wages and other monetary matters, working conditions, the composi-
tion of the bargaining unit, and the Respondents' consolidation
program. At the time the strike began, the parties had not reached
an agreement with respect to any of these issues. As to the union-
security proposals, the record reflects that they were discussed and
then tabled, while other matters were discussed; that the Union agreed
]P United Elastic Corporation, 84 NLRB 768 ; The Fafnir Bearing Company , 73 NLRB
1008
is We do not , accordingly , adopt the findings and conclusions of the Trial Examiner
which were predicated upon the assumption that the strike was not unlawful.
19 Under the circumstances of this case , we would reach this same conclusion even if
we assumed that certain actions taken by All America during the strike would, under
other circumstances , constitute unfair labor practices by the Respondents with respect to
their own employees.
15 With the exception of the complainants who we find below were permanently rein-
stated and subsequently discharged for cause , we find that the remaining complainants
were either denied reinstatement or were reinstated only on a -temporary basis
"The Board has not yet held that a union may not lawfully , propose the inclusion of
union-security provisions in a contract , merely because that union had not yet been
certified pursuant to Section 9 (e) of the Act.
MACKAY RADIO AND TELEGRAPH COMPANY, INC. 745
to consider, subject to revision, certain specific proposals made by the
Respondents; and that the Union agreed to revise and resubmit its
earlier proposals. Consequently, at the time the strike began, there
were before the parties no specific union-security proposals upon which
the union representatives had taken a hard and fast position. On the
contrary, the evidence establishes that the Union made certain union-
security proposals, which may or may not have been unlawful,17 as
part of its general bargaining strategy, and that the Union was willing
to, and did, negotiate with the Respondents in an effort to find a mu-
tually acceptable formula.
Nor can I attach such overriding importance to those considerations
my colleagues have chosen to endow with decisive significance. The
Union's refusal to accept the Respondents' offer, in general terms, of a
union-security contract consonant with the provisions of the amended
Act is, in my opinion, evidence only that the Union was insisting on
more specific proposals not illegal concessions. Its failure to live up to
its agreement to submit revisions of its own and the Respondents'
proposals loses significance when considered in its context; namely,
that the parties were far from agreement on numerous other issues
and the end of the contract period was approaching. The Union's last
minute request for reconsideration of its proposals was obviously an
effort to keep the negotiations open and possibly avert a strike. And
its failure to modify or abandon its proposals during the strike is in
my opinion inconsequential, in view of the Respondents' firm refusal
to negotiate with it at the January 16 meeting, and their subsequent
refusal to meet with the Union because of its failure to comply with
the filing requirements of the Act. Under such circumstances, any
efforts by the Union to resume negotiations on these issues would
obviously have been futile.
I do not believe that the Board may in this case validly rely on the
Union's failure to comply, or to initiate compliance, with the filing re-
quirements of the Act. The record is barren of any evidence that the
Union at any time refused to consider any specific proposals which
would have postponed the application of union-security provisions
until it had been certified pursuant to Section 9 (e) of the Act 18
To hold, on the facts in this case, that the Union would have rejected
such a proposal, if made, is sheer speculation. To predicate the result
reached by the majority herein on such speculation is wholly un-
warranted.
It is axiomatic that a strike to achieve economic benefits or other
mutual aid or protection is presumptively lawful and protected. It
14I do not find it necessary to pass upon the legality of these proposals.
18 See Old Town Shoe Company, 91 NLRB 181, in which the Board held that a union-
security proposal, which omitted a provision making it inoperative pending certification
pursuant to Section 9 (e), did not make a resulting strike unlawful because the union
did not insist that such a proviso be omitted, and the negotiations were not stalemated
over that issue.
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is only in the rare and narrow class of cases, in which the evidence-
clearly establishes that the strikers consciously sought to compel their-
employer to violate a congressional mandate, and the employer, if it
capitulated to the strikers' demands, must necessarily have violated
that mandate, that the Board has found that presumption to be re-
butted,'and has held that the stripers had forfeited their rights under
the Act.19 The evidence in this case, in my opinion, falls far short of
establishing facts which the Board has heretofore considered neces-
sary to rebut the presumption of legality. I am convinced that the
strike was lawful, and that the strikers were entitled to the protection
of the Act.
Even assuming for the sake of argument that the strike was unlaw-
ful, I cannot understand why my colleagues do not apply the well-
established principle of condonation to these individual complainants.
The result reached by the majority on this question is without prece-
dent in Board history. Heretofore, when the Board has found that
condonation in fact existed,20 it has consistently held that the strikers
were entitled to the protection of the Act, irrespective of the nature
of their allegedly unprotected activity 21 This approach has just as
consistently been approved by the court.22 Although courts have on
occasion set aside the Board's orders in cases involving condonation,
the basis of their action has been a disagreement with the Board as to
the fact of condonation, and not as to the applicability or the sound-
ness of the principle." Now, for the first time, the Board is aban-
doning the principle of condonation because of the nature of the
strikers' unprotected activities. This departure from established
19 The American News Company , the , supra ; Thompson Products , Inc, 70 NLRB 13 ;
cf. The Hoover Company, 90 NLRB 1614 ; Columbia Pictures Corporation , 64 NLRB 490,
510; Rockwood Stove Woi ks, 63 NLRB 1297. In the absence of a decision by the Supreme
Court on this question , I am constrained to disagree with that portion of the decision of
the court of appeals in the Hoover case which holds that action to compel an employer
to recognize one union during the pendency of a question concerning representation is
necessarily unprotected.
29 The Respondents did not assert the alleged illegality of the strike as a grounds for
denying reinstatement to the complainants herein until the hearing in this proceeding.
Accordingly , I would find that the Respondents condoned their participation in the
allegedly unlawful strike
21 The Hoover Company, supra ; Alabama Marble Company, supra ; Columbia Pictures
Corporation, et al ., 82 NLRB 568 , E. A. Laboratories , Inc., supra ; The Cai ey Salt Com-
pany , Supra; Thompson Products , Inc., supra ; Acme-Evans Company, supra ; Stewart
Die Casting Corporation, supra. In the Hoover, Columbia Pictures, and E A. Labora-
tories cases , the Board held that the existence of condonation made it unnecessary to
consider the nature of the alleged unprotected activity
121V. L R B . v. Alabama Marble Company, 185 F. 2d 1022 ( C. A. 5) ; N L R B. v. E. A.
Laboratories, Inc., 188 F. 2d 885 (C. A . 2) ; N. L. R. B. v. Acme -Evans Co , 130 F. 2d 471
(C. A. 7) , Stewart Die Casting Corp. v N. L R. B., 114 F. 2d 849 ( C. A. 7). In the
E A Laboratories case the court stated ". . . the decision of the NLRB ordering rein-
statement of the strikers . . . was based on a finding of condonation by E. A . L. of the
strikers ' conduct making the issue of the legality of the original strike quite irrelevant."
23 N. L. R B v Warner Bros. Pictures , Inc., et al., 191 F. 2d 217 ( C. A. 9) ; N L. if. B.
V. Dorsey Trailers , Inc, 179 F. 2d 589 (C. A. 5). See also Thompson Products , Inc., 72
NLRB 886, in which the Board set aside its original decision on similar grounds.
MACKAY RADIO AND TELEGRAPH COMPANY, INC. 747
precedent and good policy cannot be justified by any considerations-
indicated by my colleagues.
The majority seeks'to justify its abandonment of the principle on
the grounds of the effectuation of congressional policy as expressed in
the amended Act. However, I can perceive no validity in the distinc-
tion which the majority seeks to draw between strikes which are un-
lawful and strikes which are merely unprotected. In either event, the
strikers are initially denied the protection of the Act because of the
sound public policy to discourage conduct which is deemed to be
contrary to the public interest. But whether such conduct contra-
venes sound public policy, or whether it also constitutes a violation of
a specific statute, it is the employer who is directly affected thereby.
His business is hurt by the strike and his interest is served by its term-
ination. The Board has heretofore consistently recognized this basic
fact in applying the condonation principle, and I would continue to
recognize it, whatever label we may give to the strikers' unprotected
conduct.24
There are other sound reasons of public policy which lead me to the
same conclusion. The whole purpose of the Act is to avoid or mini-
mize industrial strife which burdens or obstructs commerce. Our
decisions should be framed insofar as possible to achieve that objec-
tive. But the result reached by the majority militates against that
goal. Once a strike has begun which may possibly 25 be unlawful, the
strikers as a result of this decision may be under heavy pressure to
reject all offers of settlement or compromise, and to continue the
strike to ultimate victory or defeat; for they may well fear that the
employer, who may have condoned the strikers' conduct in order to
reopen his plant, may thereafter refuse to honor his'promise, discrimi-
nate against the strikers, and then, in a proceeding decided by this
Board, perhaps long after the event, urge in defense the character of
the strike with complete assurance that the Board will support him.
I cannot , moreover, regard the decision of the Supreme Court in the
Southern Steamship case, supra, in which the issue of condonation
24In the Hoover case, supra, the court of appeals recognized the applicability of con-
donation to a situation closely analogous to the instant case. There the company
discharged a number of members of the union 's executive board because of the union's
refusal to call off a consumer boycott of the company 's products . The Board found
that the boycott was a protected concerted activity and ordered the company to reinstate
these employees The court disagreed with the Board 's conclusions that the boycott was
protected , and held that it was unprotected because initiated and continued to compel
the company to recognize one union both during the pendency of a question concerning
representation , and also after the Board had certified another union as the representative
of the employees involved . ( In an appropriate proceeding , the Board would have found
that the latter aspect of such conduct violated Section 8 (b) (4) (C) of the amended
Act. Department Store Employees Union, Local 1250 , 83 NLRB 355.) Nevertheless,
the court ordered the company to reinstate two of these employees because it found that
the company had condoned their participation in the unlawful boycott.
25 It is not enough to say that an unlawful strike should never have been started. The
legal and factual situations which may arise under the Act are not so well defined that
reasonable men may not differ as to the legality or illegality of a strike.
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was neither raised nor litigated, as dictating the result reached by
the majority in this case. Much more apposite, in my opinion, is the
language of that Court in the Fansteel and Sands cases,26 holding that
strikers' participation in unlawful conduct furnished grounds for their
discharge, but not holding, as the majority apparently hold here, that
such conduct in effect conclusively terminated the employment
relationship.
I am seriously concerned, too, in knowing where, if anywhere, the
majority would draw the line which would end the state of outlawry
imposed by the decision upon the strikers. If, rather than condemn-
ing the illegality of the strikers' conduct the Respondents had said:
"We don't care about your having struck, we want to resume opera-
tions, so, if you return to work we will forgive your actions and take
you back without reprisals," would the majority then permit the
Respondents to raise this same defense? What result would the
majority reach if the Union and the Respondents had entered into a
written strike settlement agreement, in which the Respondents had
specifically condoned the strikers' participation in an unlawful strike?
And what would be the result if the strikers were permanently rein-
stated, and the Respondents sought to justify subsequent discrimina-
tion because of the previous unlawful strike? I can find no answers
to these questions in the majority opinion. The potentialities raised
by these considerations further challenge the validity of my colleagues'
decision.
MEMBER STYLEs took no part in the consideration of the above
Decision and Order.
Intermediate Report
STATEMENT OF THE CASE
Upon charges duly filed in Case No. 2-CA-285 by Joseph T. Mazzolo and
Frederick W. Robitzer, on behalf of themselves and others, in Case No. 2-CA-411
by Frederick W. Robitzer and Ladislav C. Breuer, on behalf of themselves and
others, and in Case No. 2-CA-261 by Harriet Berger on behalf of herself and
others, all of whom are herein called the charging parties, the General Counsel
of the National Labor Relations Board, herein called respectively the General
Counsel and the Board, by the Regional Director for the Second Region (New
York, New York), issued his complaint dated March 24, 1950,' against Mackay
Radio and Telegraph Company, Inc., and Commercial Cable Company,, herein
called Respondents, alleging that Respondents had engaged in and were engaging
in certain unfair labor practices affecting commerce within the meaning of
Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Rela-
tions Act, as amended, 61 Stat. 136, herein called the Act. Copies of the charge,
the complaint, and a notice of hearing were duly served upon Respondents and
the charging parties.
" N. L. R. B v. Fansteel Metallurgical Corp, 306 U. S. 240, 256; N. L R B. v Sands
Manufacturing Co, 306 U. S. 332, 344.
1 The Board on the same date issued an order consolidating the cases for the purpose of
hearing.
MACKAY RADIO AND TELEGRAPH COMPANY, INC. 749)
With respect to unfair labor practices the complaint alleged, in substance, that :
(1) On or about January 2, 1948, employees of Respondents went on strike; (2)
on or about January 30, 1948, and thereafter, Respondents threatened their
employees with loss of seniority and other benefits and by these and other acts-
solicited and induced them to terminate the strike; (3) as a result of (2) the
strike was continued and prolonged ; (4) on or about March 31, 1948, Respondents
refused reinstatement to 49 employees named in Appendix B because they had
gone on strike ; (5) from April 1 to 12, 1948, discharged 11 other employees,' on
or about July 31, 1948, laid off Alois Turiak and Andrew Dzuri, on or about
O' tober 9 laid off John Oldaker, and on or about December 15 laid off George
Meek, because of their concerted activities on behalf of themselves and others ;
and (6) by the foregoing interfered with, restrained, and coerced their employees
in the exercise of rights guaranteed by Section 7 of the Act.
On May 1, 1950, Respondents filed an answer admitting certain allegations of
the complaint with respect to the notice of their business, but denying that they
had engaged in any unfair labor practices.
Pursuant to notice, a hearing was held on various days from June 26 to July 13,
1950, at New York City, before Horace A Ruckel, the undersigned Trial Exam-
iner, duly appointed by the Chief Trial Examiner. The General Counsel, Re-
spondents, and the charging parties were represented by counsel and participated
in the hearing. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing upon the issues, was afforded all
parties. At the hearing the complaint was amended by adding the names of two-
other employees to the number of those alleged to have been discriminatorily
denied reinstatement by Respondents, and Respondents' answer was amended to
conform therewith.
At the conclusion of the hearing the Trial Examiner granted motions by the-
General Counsel and Respondents to conform the pleadings to the proof in formal
matters, and reserved ruling on Respondents' motion to dismiss the complaint.
This motion is disposed of by the recommendations hereinafter made. The
parties were given until July 28, 1950, to file briefs with the Trial Examiner.
Subsequently this time was extended by the Chief Trial Examiner to October 16.
The General Counsel's and Respondents' briefs were duly filed
On September 13, 1950, the charging parties filed a motion to reopen the
record to take evidence in support of the proposition that the strike which
occurred on January 2, 1948, was, in its inception, an unfair labor practice strike
caused by Respondents' refusal to bargain with American Communications-
Association, herein called ACA, to which many of Respondents' employees be-
longed.' The Trial Examiner issued a rule to show cause why the record should
not be reopened and argument thereon was heard on September 25, 1950. The
2 These are listed in Appendix C of the complaint, and are for the most part strikers
who Respondents state were discharged for strike violence and intimidation.
' The General Counsel, in presenting his case, had contended only that the strike, eco-
nomic in origin , became an unfair labor practice strike on or subsequent to January 30,
1948. Presumably the General Counsel confined himself to this theory in reliance, at
least among other factors, upon the Andrews case (87 NLRB 379) where the Board, in
effect , held that an employer was not obligated to bargain with a union which had not
complied with Section 9 (f), (g), and ( h), the so-called non - Communist provisions, of the
Act. ACA was not in compliance with these provisions. On July 10, 1950, however, 3 days
before the close of the hearing, the Court of Appeals for the District of Columbia in West
Texas Utilities Co. v. N L. R B. (184 F. 2d 233) in effect disapproved of the Board's
doctrine as expressed in the Andrews case, and held that an employer was not relieved of
his duty to bargain with a labor organization because of its failure to comply with these
provisions of the Act Recently, the Board in New Jersey Carpet Mills, Inc, 92 NLRB 604
(decided December 11, 1950), 27 L. R. R. 1114, in effect reversed the ruling in the Andrews
case.
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trial Examiner on the same date denied the motion to reopen .4 On October 5,
1950, counsel for the charging parties requested special permission to appeal
the Trial Examiner's ruling to the Board pursuant to Section 203.26 of the Rules
and Regulations. On November 1, 1950, the Board issued an order denying
the request. On October 27, 1950, after the filing of briefs, the parties argued
the issues orally before the Trial Examiner. On January 17, 1951, after the
Board's decision in the New Jersey Carpet Mills case, counsel for the charging
parties filed another motion with the Trial Examiner to reopen the record. The
motion was not joined in by the General Counsel. On January 18 the Trial
Examiner entered an order denying this motion.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENTS
Mackay Radio and Telegraph Company, I.., is a Delaware corporation and
Commercial Cable Company a New York corporation which, together with All
America Cable and Radio Inc., a New York corporation, herein called All America,
not a respondent, at all times relevant hereto have maintained jointly a principal
office and place of business at 67 Broad Street, New York, New York. These
three corporations, sometimes reterred to jointly as the operating Companies,
conduct closely integrated and consolidated operations, have several officers in
common, and each of them is a wholly owned subsidiary of the American Cable
& Radio Corporation. The personnel of all three operating Companies are sub-
ject to common direct supervision and control, and all three maintain one central
labor relations department and one director of industrial relations.
Each of the Respondents, as well as All America, maintain branch offices
throughout the City of New York All America maintains an office in Wash-
ington, D C., and the Mackay Radio & Telegraph Company, Inc., has branch
offices in Washington, D. C., and San Francisco, California. The three operat-
ing Companies are engaged at their principal place of business and at their branch
offices in the business of transmitting and receiving international radio, tele-
graph, and cable communications between points located throughout the various
States of the United States and to and from foreign countries. Pursuant to pro-
visions of the Communications Act of 1934, as amended, they receive a substan-
tial portion of all international telegraph messages transmitted on the land line
facilities of the Western Union Telegraph Company and destined for transmis-
sion to points outside the United States. Approximately 25 percent of all inter-
national messages received and transmitted between various points throughout
the United States and various foreign countries are handled by the three operat-
ing Companies.
Respondents admit that they are engaged in interstate commerce within the
meaning of the Act.
! The bases for this ruling were • (1) That the General Counsel did not join in the motion
and did not indicate that if the motion were granted he would file an amended complaint.
In the Trial Examiner's opinion, the original complaint was not broad enough to cover this
additional matter, the matter was not fully litigated, and the Trial Examiner had no power
under the Act to require the General Counsel to amend the complaint (2) Under the
Andrews case doctrine, there was no obligation to bargain with a union when not in com-
pliance with Section 9 (f), (g), and (h) of the Act, even though later the union may have
complied.
S
MACKAY RADIO AND TELEGRAPH COMPANY, INC.
II. THE LABOR ORGANIZATIONS INVOLVED
751
American Communications Association is a labor organization admitting em-
ployees bf Respondents to membership. All America Cable Employees Associa-
tion, herein called AACEA, is a labor organization admitting to membership em-
ployees of All America. Neither organization is affiliated at the present time
with any national labor organization.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Refusal to reinstate strikers
1. Background
For some time prior to a strike which took place on January 2, 1948, out of
which this proceeding arises, the employees of Respondents had been represented
by ACA and for about 10 years prior thereto the employees of All America, not
a respondent herein, had been represented by AACEA.
The last collective bargaining agreements entered into between the three operat-
ing Companies and the two Unions prior to the 1948 strike were negotiated in
1946. On August 30, 1946, All America and AACEA entered into a wage agree-
ment which was to continue in effect until January 1, 1948. On September 14,
1946, Respondents entered into a contract with ACA which was likewise to remain
in effect until January 1, 1948. As has been the custom, the agreement between
All America and AACEA was negotiated separately from that negotiated between
Respondents and ACA. On October 31, 1947, 2 months prior to the expiration
of the 1946 contracts, ACA gave written notice to Respondents of its desire to
negotiate changes in the contract. On the same date a similar written notice
was given by AACEA to All America. These notices were followed by meetings
between representatives of Respondents and ACA and between representatives
of All America and AACEA. During the period between November 15 and 20,
1947, ACA submitted to Respondents and AACEA to All America, their respective
demands for changes in the contracts. The ACA demands, as first set forth in
its letter dated November 19, were supplemented from time to time thereafter
by other demands advanced during the course of the negotiations. Both unions
demanded a wage increase of 30 percent, a reduction in hours, and other fringe
benefits. In addition, AACEA submitted certain proposals with respect to union
security which it is admitted were wholly unobjectionable from the standpoint of
the Act. ACA, however, demanded of Respondents a series of union-security pro-
visions which Respondents contend amounted to a closed shop in violation of the
Act, and rejected for that reason. The union-security demands set forth in letters
from ACA to Respondents were as follows :
Article 2 (Union Security). To provide that the contract shall cover
employees covered by this agreement during such time as such employees
are willing and able to work, and that the Company agrees not to resort to
the Courts in the settlement of disputes. (Check off) To provide for the
voluntary check off of dues, initiation fees and assessments.
Article 5 (Hiring). Substitute the following language: (a) When new
employees are required, the Company shall notify the Union and shall con-
sider, without discrimination, any applicants the Union may recommend for
employment. The Company agrees not to hire anyone without having given
the Union a reasonable opportunity to send to the Company applicants for
the position.
Upon hiring any new employee, the Company shall give to such new
employee, a written notice reading as follows : "This shop is under a
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective bargaining agreement with the American Communications Asso-
ciation, CIO, and the hours, wages, and working conditions in this shop are
the result of negotiations with that Union. Our contract provides that
the Union shall handle grievances for the employees. While we will not
discriminate against any employee because of his membership or non-
membership in the Union, we would prefer that all the employees in our
employ become members of the Union in good standing as long as they are.
employed by us."
On December 11, 1947, ACA submitted the following additional clauses which
it requested be inserted in any new agreement with Respondents:
Probationary Period.-Any new employee shall serve a probationary period
of three months before he shall be considered a permanent employee. Dur-
ing such probationary period, his employment may be terminated by either
the Employer or the Union. Such termination of employment may not be
made the subject of a grievance under the terms of this contract.
Discharges.-a. The employer may discharge an employee for just cause.
b. The Union may require the discharge of an employee for violation of
reasonable union shop rules. However, nonmembership in the Union or non-
participation in Union activities shall not be ground for discharge and the
Union will not require the discharge of any non-union member for violation
of any rule which is not applicable to union and non-union members alike.
On December 23, 1947, ACA proposed the following no-strike and no-suit
clause :
NO STRIKE
The Union agrees not to call any strike during the life of this agreement
unless the grievance procedure has been exhausted, or unless the Employer
fails or refuses to abide by the terms of an arbitration award, or unless
the Employer violates any of the terms or conditions of this agreement.
NO SUIT
The parties agree that the Employer shall not seek damages against the
Union, its officers, agents or members for any act or omission alleged to
have been committed during the life of this agreement.
It is also agreed that neither the Employer nor the Union shall institute
or maintain any proceedings before the National Labor Relations Board
(Taft-Hartley Board) for any act or omission alleged to have been com-
mitted during the life of this agreement by either party, their officers, agents
or members.
If the Employer violates any of the provisions of this Section, the Union
shall have the right to strike notwithstanding any other provision of this
agreement.
Respondents and All America rejected the demands of the two unions for a,
30 percent wage increase, alleging it to be financially impossible, and refused to
enter into any agreement concerning union security which amounted to a closed
shop, in which category they place the above proposals of ACA.
Separate negotiations between Respondents and ACA and between All America
and AACEA continued until the end of December without any agreement on the
basic issues in dispute. A mediator was appointed by the Federal Concilia-
tion Service in the dispute between ACA and Respondents, but did not partici-
pate in the negotiations because of the former's refusal to meet with him. An-
other mediator, however, sat in on the negotiations between All America and
MACKAY RADIO AND TELEGRAPH COMPANY, INC . 753
AACEA during the latter part of December. During the closing days of that
month both ACA and AACEA proposed that joint negotiations be initiated, but
this proposal was rejected by Respondents.
At no time during the negotiations between the parties did Respondents make
any counterproposal for a wage increase, nor did the Unions recede from their
original demand for a 30 percent increase, plus fringe benefits.'
Although Respondents did not make any concession with respect to a wage
increase, it did make certain proposals with respect to union security. Wilson
McMakin, director of industrial relations for all three operating companies,
testified without contradiction that during the negotiations ACA was offered
a union shop in accordance with the provisions of the Act, but refused to accede
to ACA's security demands as set forth above. McMakin's suggestion was for
-a hiring clause which would require Respondents to notify the Unions of any
job vacancies, and give them the opportunity to refer applicants to Respondents
within 1 week after such notification.
Respondents contend that the principal demand of ACA, the refusal to grant
which they assert precipitated the strike on January 2, was that pertaining
to union security, amounting to a closed shop, and that the wage demand was not
seriously put forth. This contention'is hereinafter discussed.
2. The strike
No progress was made toward agreement upon new contracts to replace the
1946 agreements, and at a final meeting between representatives of the parties
on December 31, ACA terminated its negotiations with the Respondents. On
the following day AACEA terminated its negotiations with All America. Pre-
viously prepared letters announcing the breaking off of negotiations were pre-
sented to the 2 companies. At midnight on January 1, 1948, all but about 300
of the approximately 2,300 employees of the 3 operating companies throughout
the country went on strike. The approximately 300 employees who continued
to work included officers, executives, supervisors, branch office managers, and
certain other nonunion employees. About 200 to 250 of these 300 employees
were located in New York City, a majority of whom were allocated to the main
office at 67 Broad Street.
The General Counsel does not contend that the strike was caused by a refusal
to bargain or by any other unfair labor practice of Respondents. He does con-
tend, however, that it was transformed into an unfair labor practice strike by
reason of certain activities of Respondents, hereinafter related, which he asserts
prolonged the strike, and which form the principal subject matter of the case.
Respondents, on the other hand, assert affirmatively that the strike was brought
-about by ACA in an attempt to compel Respondents to agree to a closed shop,
such as it had enjoyed under the 1946 contract, that this demand was illegal,
and that the strike which followed was an unprotected concerted activity. This
contention, together with its implications as affecting the rights of the employees
named in Appendix B of the complaint to reinstatement, is hereinafter considered.
The strike was jointly conducted by ACA and AACEA. A joint strike strategy
-committee, composed of representatives of both Unions, whose function it was to
supervise the conduct of the strike, and disciplinary, welfare, finance, and pub-
s Other demands by ACA included a continuation of a supplemental agreement entered
into between Respondents and ACA on April 12, 1947, which prevented consolidation of
departments without consultation with the Union. Lawrence Kelly, vice president of the
radio and cable department of ACA, testified that this issue, in his opinion, was the most
important one so far as ACA was concerned The validity of this contention is herein-
after discussed.
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
licity committees , were established Members of the two Unions maintained a
single picket line with placards stating that employees of Mackay , Commercial,
and All America were on strike . The membership of both Unions met regularly
at joint strike meetings . The joint strike strategy committee met daily to guide
the conduct of the strike and the publicity committee issued a daily joint strike
bulletin which was circulated among the striking members of the two Unions.
Attempts by Federal mediators to settle the dispute continued during the strike.
Respondents agreed to meet with representatives of ACA , and All America agreed
to meet with representatives of AACEA, separately . The Companies continued
their refusal , made clear prior to the strike, to negotiate jointly with ACA and
AACEA. McMakin testified that Respondents ' reasons for this refusal were that,
while the demands of AACEA for union security were not objectionable, those
of ACA, previously described , amounted to an illegal closed shop on which
Respondents would not bargain and with which they would not comply ; that
prior bargaining , including the negotiations immediately prior to the strike,
had always . been conducted separately ; that the working conditions applicable
to All America 's employees were different in many aspects than those pertaining
to those of Respondents ; and, further , that some of Respondents ' employees
feared that if Respondents yielded on the question of joint bargaining they would
also yield on the question of union security , with resulting bad effect on their
morale.
AACEA, after having first insisted on joint negotiations with ACA, suggested
a formula by which separate though simultaneous negotiations would be carried
on. Respondents agreed to this and a meeting was arranged for January 16,
in the New York office of the Federal Conciliation Service. At this meeting,
however, Kenneth Spilman, chairman of AACEA, appeared with several officers
and representatives of ACA with whom Respondents had been previously nego-
tiating, in addition to AACEA's own committee . McMakin , on behalf of Respon-
dents, protested this development as a subterfuge to compel joint bargaining and
the meeting forthwith terminated, representatives of the two unions withdrawing
and leaving Respondents ' representatives in the room. Shortly after their de-
parture, Lawrence Kelly, vice president of the radio and cable department of
ACA, appeared with a committee composed of representatives and officers of
ACA, in addition to Spilman and other officers of AACEA, and stated that all
these individuals represented Respondents ' employees . McMakin protested this
development , as he had the similar one a few moments previously , and this
meeting also broke up.
On January 19, 1948, Respondents filed a petition with the Board
e for deter-
mination of representatives . On February 4, the Board 's Regional Director for
the Second Region wrote Respondents advising them that ACA had not complied
with Section 9 (f), (g), and ( h) of the Act , that it was therefore ineligible for
certification as a bargaining representative , and that he was dismissing the
petition . Thereafter, no bargaining sessions took place between Respondents and
ACA during the period of the strike . Extended negotiations , however, were
carried on between All America and AACEA and meetings were held on March
3, 4, 5, 6, 9, and 23, under the auspices of the Department of Labor Relations of
the City of New York. Tentative agreement was reached on several clauses of
a proposed contract , but no final agreement was consummated.
On March 31, 1948, both striking Unions addressed a telegram to the three
operating companies stating that the strike was being terminated and that
employees would return to work, commencing at midnight.
e 2-REM-29
MACKAY RADIO AND TELEGRAPH COMPANY, INC. 755
3. Respondents ' consolidation policy ; method used in reinstating strikers; an-
nouncement of method to the strikers
The issues in this case , aside from the question of whether the strike was a
protected concerted activity , arise out of the policy followed by Respondents in
the reinstatement of their employees after the termination of the strike.
a. Origin of the consolidated policy; its acceleration during the strike
Since the conclusion of the second World War , and prior to the strike, Re-
spondents had been incurring an increasing decline in revenue and increased
expenses , with the result that for some time they had been operating at a financial
loss. In an attempt to minimize it Respondents entered upon a study of their
operations with a view to effecting economies by eliminating unnecessary jobs and
consolidating other jobs and even whole departments.
This program , according to Forest Henderson , executive vice president of the
three operating companies , had been instituted in about the year 1930, and by
the beginning of the strike had progressed to such an extent that a number of
departments of the three Companies had been completely consolidated , and in all
branch offices employees of all three operating Companies were to be found doing
the same or similar work but on different payrolls . The same thing was true in
the New York main office where there was no physical separation between Mackay,
Commercial , and All America circuits or employees . During the strike, under the
necessity of spreading the available manpower as thinly as possible , unrevealed
possibilities of further economies came to light with the result that , according
to Henderson , "everything" was consolidated , at least temporarily , in the New
York office . Between the end of the strike and the hearing , the service , operating,
and traffic departments were "fully" consolidated , to quote Henderson , and still
further consolidations are contemplated. -
The General Counsel does not dispute the reality of the financial situation in
which Respondents found themselves at the time of the strike , nor does he contend
that their consolidation program was occasioned or motivated by other than
legitimate business considerations.
As related , as a result of the strike only 300 employees , for the most part
managerial and supervisory , were left to carry on the functions of the operating
Companies . This number was supplemented to some extent during the early days
of the strike by the return of individual strikers . Henderson testified credibly
that during January 60 to 70 returned , during February 80 to 90, and that during
March they came back in "droves ." McMakin testified that from 400 to 500
employees , in all, returned before the end of the strike. During the strike
Respondents hired about 40 new employees as replacements for the strikers.
b. Respondents ' reinstatement policy on termination of strike
Toward the end of January, after the strike had lasted for nearly a month,
Respondents began to consider the question of restaffing all available positions on
a permanent basis. The policy determined upon was as follows: (1) No
persons employed during the strike, whether wholly new employees or strikers
who returned to work before the end of the strike , would be discharged at the
end of the strike to make room for strikers with greater seniority who might
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.seek reinstatement at the end of the strike;' (2) to put those employees who re-
-turned at the end of the strike in each classification in the order of their seniority,
.and to select from the top of the seniority list the actual number required to fill
the jobs still vacant; (3) any future layoffs would take place on the basis of
.the seniority of all employees in the affected classification, irrespective of
-whether they had come back during the strike or whether they had stayed out
-until the end of the strike.
c. Respondents announce therm policy to the strikers
The gist of the above policy was set forth in letters to the strikers. One
dated January 30, sent by Henderson to all the strikers, including employees of
:Respondents as well as of All America, was as follows :
TO OUR EMPLOYEES
On December 31, a notice was posted on the bulletin board at 07 Broad
.Street, over my signature, in which the following paragraph appeared :
"Finally we should like to reiterate what was stated in the last paragraph
of our letter dated December 22, 1947, that is that any employee who re-
mains at his post during the strike or any employee who returns to his job
-within a reasonable period after the strike has started will be assured of
continuation of his job and we quote again this pledge given in our letter
.dated December 22--'the Company gives you this assurance, that it will
not yield to any pressure which the Union leadership may bring to bear, as
.a means of retaliation, to deprive any employee of his job for having car-
ried on at his work during the period of a strike.'"
Four weeks have now elapsed since the beginning of the strike and we
.consider this a reasonable period of time for return to work.
This is to inform you, therefore, that we are now starting to hire old or
new employees on a permanent basis as may be required to carry on the
.Company's business.
Old employees will retain their seniority.
,On February 5, 1948, Henderson sent a second letter to the strikers inviting
tthem to return to work, and included the following paragraph : e
We have no intention of taking any drastic measures against our em-
ployees but we have definitely ascertained that it is possible to perform
.our work on a satisfactory basis with many less employees than we had on
,our payroll at the time the strike began. As a consequence, we are reducing
the number of our personnel and some of those who went on strike will
have no jobs waiting for them when they return. Any employee who wishes
I Respondents' policy was epitomized in the following illustration set forth in the General
.Counsel ' s brief which , during oral argument, Respondents ' counsel agreed was accurate
and exact . "Assume that the Company had 50 employees in a department at the outset of
the strike and that 25 returned before the end of the strike. Assume further that due to
-the Company 's consolidated program it concluded that it needed only 30 employees at the
.end of the strike Only 5 positions were available and it hired 5 in order of seniority, of
the 25 employees who remained on strike for the duration. This was done even though
-those of the strikers who were denied reinstatement may have had more seniority than
-those who returned earlier from the strike ." The asserted policy with regard to future
-layoffs is disputed by the General Counsel , and is hereinafter discussed.
8 Respondents stress the fact that when they issued the letters of January 30 and Febru-
ary 5 to their individual employees they had been advised by the Board ' s Regional Office
-that ACA was not in compliance with Section 9 (f), (g), and ( h) of the Act, and contends
that it was not obligated to recognize ACA as the representative of their employees.
MACKAY RADIO AND TELEGRAPH COMPANY, INC. 757
to do, so and for whom we have employment is welcome to return under,
the same wage scale and work week that was in effect prior to the strike.
The phrase "some of those who went on strike will have no jobs waiting for
them when they return," obviously refers, and it is so reflected in the letter as
a whole, to the previously described policy of Respondents to consolidate de-
partments and to reduce personnel. As has been stated, the General Counsel
does not urge that this policy had its origin in anything else than legitimate
business consideration!
4. Termination of the strike ; Respondents put into effect their restaffing policy
The strike was ended on March 31, 1948, and at this time the Company put
into practice the restaffing policy which had been determined upon during the
strike and which it had announced to its employees, as related above. Regis-
tration desks were set up in the lobby of Respondents' offices and the
strikers at once began to register for reemployment. Most of them did so
promptly, but a number did not immediately appear. Accordingly, a letter was
sent to such employees informing them that if they did not register by midnight
on April 5 they would be regarded as not desiring reemployment. Such em-
ployees as did not register by the termination of this period were dropped from
the payrolls.
On or about April 1, after most of the strikers had registered, the department
heads and superintendents began to compile lists of those who had registered in
g The Trial Examiner received in evidence, over Respondents' objections, subject to cor-
rection, letters from Kenneth Stockton, president of all three operating Companies, dated
March 12 and 24, 1948, on the letterhead of All America, directed to "our employees" and
sent only to employees of All America. These letters were sent after meetings between
representatives of All America and AACEA, previously referred to, summarized the results
of these meetings. They contain statements which the General Counsel contends were
discriminatory in nature and insists that the letters are attributable to Respondents
because: (1) The operations of the three operating Companies were virtually consolidated
during the strike so that there was, in effect, only one company; (2) many of the officers
and higher supervisory employees of the Companies, including Stockton, were interlocking ;
(3) the strike was a joint strike participated in by employees of all three Companies, and
(4) the letters were intended to, and did, come to the attention of the striking employees of
Respondents. The General Counsel sees a "subtle device of shutting off further communica-
tion to the ACA membership (the January 30 and February 5 letters from Respondents to
their employees) while ostensibly communicating only with AACEA members."
Respondent, while admitting a substantial degree of consolidation on the one hand, and
joint strike of employees of the three operating Companies on the other, argues that in
many respects the Companies retained their individual identity and, in particular, that All
America had always negotiated contracts with AACEA separate and apart from those
negotiated between Respondents and ACA ; that the provisions of these contracts differed
because of variance in functions between many of the employees of All America and those
of Respondents ; and that the purpose of these letters was to advise employees of All
America of the progress of negotiations with AACEA, a matter with which employees of
Respondents were not concerned. Respondents contend that they are not bound by these
communications of All America, particularly since not only is All America not a respond-
ent, but no employee of All America is named in the complaint.
The Trial Examiner is of the opinion that the exhibits in question have not been con-
nected up. There is no showing that Respondents constituted All America their agent
for the purpose of issuing these letters, and perceives no "subtle device" In their issuance.
To argue that Respondents conspired with Ali America to issue these documents over its
own name, anticipating that they would come to the attention of Respondents' employees,
so that the latter would have the benefit, if any, of their own employees' reaction to them,
at the same time Respondents avoided the penalties of the Act, implies a prescience which
the Trial Examiner cannot attribute to them. At the time of issuance, Respondents could
not have known that they would be joined in this proceeding, and that All America would
not be. He has excluded from consideration Stockton's letters of March 12 and 24 as well
as testimony, received over objection, as to the details of bargaining conferences between
All America and AACEA.
974176-52-vol. 90-49
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,
order of seniority in their respective classifications. From each list, those em-
ployees with the greatest seniority were selected for the vacancies which re-
mained and were notified to return to work. The classification lists were then
examined to determine whether any employee who had not been offered reem-
ployment had ever been employed in a lower classification. If it was found that
an employee had been so employed, and if he had sufficient seniority in that class-
ification to entitle him to fill a vacancy, he was permitted to "bump" into the
lower classification and was offered work there.
To determine who was entitled to reinstatement in each classification took a
period of 2 or 3 weeks. This period is referred to by Respondents as a period of
"flux." Respondents account for this delay by the fact that, inasmuch as the
date for registration had been extended to April 6, later registrants might dis-
place earlier ones who had previously been offered employment; the complexity
and inadequacy of Respondents' seniority records, necessitating a careful study of
relative seniorities ; and, lastly, by the fact that many employees who were
offered an opportunity to bump into a lower classification refused to do so, result-
ing in the necessity of a recomputation to determine who was entitled to the
job in question.
Those employees who were not entitled to reemployment, in the last analysis
were notified of that fact by letter about the middle of April. Subsequently,
employees with more than 1 year of service were sent another letter offering them
the choice of severance pay or being placed on a preferential hiring list. Em-
ployees with less than 1 year of service were informed that they were not en-
titled to severance pay but that they would be placed on the preferential hiring
list. The employees named in Appendix B of the complaint were, for the most
part, in one of these groups.
Employees who elected to be placed on the preferential hiring list were taken
back by Respondents whenever a vacancy occurred. This list was also organized
on a classification basis, and those employees with the greatest seniority in each
classification were the first ones taken back. Some employees who were first
denied reinstatement under the program were later reemployed.
Inasmuch as Respondents continued their consolidation program after the
restaffing was completed in April 1948, it became necessary to lay off some of the
employees who had been taken back. From April 1948 up to the date of the hear-
ing several hundred employees were laid off, all of them on a strict seniority
basis with the exception of two complainants, Turiak and Dzuri, and possibly
Oldaker and Meek whose cases are hereinafter discussed.
Respondents admit that after the strike was concluded they temporarily
adopted a policy of reducing the seniority of their employees, for all purposes, by
the amount of time they had remained on strike. In September 1948, however,
Respondent Commercial negotiated a new contract with the AACEA and agreed
to restore, for all purposes, the seniority of all its employees who had been on
strike. Moreover, in November 1948, the Board, in the case of General Electric
Company," held that the job tenure seniority of an employee could not be reduced
because he went on strike, but that the seniority of such an employee could be
reduced for economic benefits such as vacations and pensions. Accordingly,
Respondent Mackay in two memoranda, dated December 9 and 13, instructed its
department heads that seniority rights were to be restored for all purposes when-
ever deductions had been made because the employee had been on strike, and
reiterated Respondents' policy that employees who had returned during the
strike and who had been retained at the end of the strike were not to be displaced
as a result of the restoration of full seniority to all employees.
20 80 NLRB 510.
MACKAY RADIO AND TELEGRAPH COMPANY, INC. 759
Respondents freely admit that it was violative of the Actor them to deduct the
number of days a striker had been on strike in determining his seniority for job
tenure purposes . This reduction in seniority was subsequently corrected, how-
ever, and had no effect on the restaffing the previous April, inasmuch as seniority
for all strikers who remained out for the duration of the strike was calculated
only up to January 1, 1948, the date of the strike , with the result that all were
treated equally in this respect . Moreover , no employees were actually affected
by this policy during the time it was in operation because no employees who had
been permanently rehired, with the exception of Turiak and Dzuri , were laid off
by any of the operating companies before their seniority rights had been fully
restored.
5. Contentions of the parties
As to the principal facts of the case, set forth above, there is a minimum of
dispute. The main contentions of the General Counsel are as follows :
(1) That even conceding that the strike which took place on January 1, 1948,
was economic in origin , it subsequently became an unfair labor practice strike,
at least by January 30, 1948, the date of Respondents ' first letter to their em-
ployees inviting them to return to work.
(2) That if it is not found that the strike became an unfair labor practice
strike, nevertheless the restaffing policy of Respondents at the end of the strike
was itself discriminatory in that it equated strikers returning during the strike
with the 40 replacements hired during the strike , to the detriment of strikers
who remained out until the end of the strike.
(3) That the announcement of this policy to the strikers during the strike was
coercive and was designed to split the ranks of the strikers and to accelerate their
return from the strike.
The Respondents contend principally as follows :
(1) That the strike was an unprotected concerted activity because 'it was
occasioned , at least in part, by ACA's insistent demand for union security
amounting to a closed shop, or its equivalent , when ACA was not in compliance
with Section 9 (f), (g), and ( h) or the union -shop requirements of Section 8
(a) (3) of the Act, and that for this reason the Board should not order the rein-
statement of the strikers named in the complaint.
(2) That Respondent 's manner of reinstating the strikers and its announce-
ment to their employees was proper , and even assuming that it was not so, it
did not transform what was not denied to be an economic strike in its origin into
an unfair labor practice strike.
( 3) That no discriminatory departures from its restaffing policy were made.
(4) That the employees named in Appendix C were properly discharged be-
cause of strike violence or other coercion.
6. Conclusions
1. Respondents ' contention that the strike was an unprotected concerted
activity. Respondents urge that the strike was called in furtherance of ACA's
union-security demands ; that these demands were made in violation of Section
8 (a) (3) of the Act; and that the strike was therefore "illegal" and that Re-
spondents have no legal obligations to reinstate any of the strikers . During
oral argument Respondents ' counsel based this contention on the proposition
that to invoke the protection of the Act, the individual in question must have
been an "employee" as defined in the Act; that the employee relationship ceases.
when he voluntarily quits his job except in connection with a current labor
dispute or because of an unfair labor practice ; that a strike called to enforce-
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an illegal demand cannot give rise to a "labor dispute" within the meaning of the
Act, citing the decision of the court in the Indiana Desk " case.
Respondent's theory has the advantage that, if it is sound, the question of
waiver or condonation raised by the General Counsel is probably irrelevant
since it goes to the question of jurisdiction. It is not asserted that Respondents
advanced the claimed illegality of the strike at the time as a reason for not
reinstating the strikers named in the complaint. In fact, they invited all
strikers to apply for work, excepting those claimed to have participated in strike
violence or intimidation, and in effect promised them jobs as long as jobs were
available.
It does not follow, however, that if Respondents' theory that the strikers
ceased to be employees, because there was not a labor dispute within the meaning
of the Act is rejected, and the undersigned does reject it, that the strikers were
engaged in a protected concerted activity. On the contrary, the undersigned
believes and finds that the strike was not a protected concerted activity because
it was caused, principally or in part, by ACA's demand for a form of union
security which was violative of the Act for it to insist upon and would have
been violative of the Act for Respondents to grant. He will not recommend
reinstatement, not because the strikers ceased to be employees, but on the ground
of public policy.
Kelly admitted while testifying that the proposal of November 19 for a "will-
ing and able" provision in the contract was copied from a similar clause just
previously negotiated between the United Mine Workers and the coal operators
which the court in Penello v. United Mine Workers of America2 found violated
Section 8 (b) (3) of the Act. The proposal also included a provision that Re-
spondents give all new employees a written notice stating that they preferred that
they become members of AGA in good standing, a provision which, if acceded
to, would obviously have the effect of encouraging membership and discouraging
nonmembership in the union . Subsequent proposals sought to extend the favored
position of ACA still further. That of December 11 provided flatly that anyone
employed less than 3 months could have his employment terminated by the
Union. It further provided that the Union might require the discharge of any
employee for "violation of reasonable union shop rules," in spite of the pro-
vision of Section 8 (a) (3) of the Act that, even under a legal union-shop con-
tract, the "failure to tender the periodic dues and initiation fees" is made the
sole ground for discharge. Finally, on December 23, ACA proposed "no-strike"
and "no-suit" clauses which would forbid Respondents to institute any proceed-
ing before the Board or the courts on matters arising under the contract.
The undersigned is in accord with Respondents' contention that had they
acceded to these proposals ACA would have been able effectively to maintain an
illegal closed shop, or one tantamount to it.
It is not denied that ACA at no time withdrew or modified any of these de-
mands. On the other hand, in December, Respondents offered a hiring provi-
sion which would have required them to notify the Union of any vacancies and
given it the opportunity of referring applicants to them within 1 week after
such notification. ACA, in effect, rejected this proposal, offering to supply 'addi-
tional phraseology. This it never did. Respondents on at least one other oc-
casion, according to the uncontradicted and credited testimony of McMakin,
N. L. R. B. v. Indiana Desk Co., 149 F. 2d 987 (C. A. 7), enforcing as modified 56
NLRB 76 and 58 NLRB 48. The court said : "In our judgment . . . the unconditional
demand for an increase in wages (in violation of a decision of the National War Labor
Board ) did not not give rise to a `labor dispute' as that term is used in the Act."
1188 F. Supp. 935 (D. C., D. C.), decided February 9, 1950, 25 LRRM 2368, granting
injunctive relief under Section 10 (f).
MACKAY RADIO AND TELEGRAPH COMPANY, INC. 761
offered, in general terms, a union shop in accordance with the provisions of
the Act. This ACA also refused. Kelly conceded, while testifying, that ACA
took "a drastic position, or rather a vigorous" position with respect to its
union-security demands.
The parties devoted considerable attention- in briefs and oral argument to
the question of whether ACA's proposals for union security constituted its prin-
cipal demand, failure to reach an agreement on which precipitated the strike,
or whether it was accorded only the same importance as, or less importance than,
other demands. The General Counsel, for example, cites the testimony of
Kelly at one point that ACA's "principal" demand was for a continuation of
provisions in the supplemental agreement previously entered into on April 12,
1947, in which Respondents, in effect, agreed to discuss with ACA the develop-
ment of their consolidation policy. It is noteworthy, however, that ACA's
original letter of November 19, listing its demands, made no mention of any
desire to continue the supplemental agreement, which had expired at the same
time as the 1946 contract, and that Kelly admitted that no entry appears in
the ACA minutes, taken during the prestrike negotiations, as to this matter.
Respondents also insist that the fact that ACA at no time receded from
or modified its demand for a 30 percent wage increase, in spite of the fact that
it knew or should have known that Respondents were in a critical financial po-
sition, indicates that this demand was not put forth in good faith and that ACA
was not interested in any compromise on the question of wages. The infer-
ence to be drawn, according to Respondents, is that ACA was concerned primarily
with obtaining a form of union security as pearly as possible like that which it
had enjoyed under the 1946 contract which had just expired. A bulletin circu-
lated among the strikers by the striking unions on March 3, 1948, during the
latter part of the strike, emphasizes that "union contract -security" is "what
we want-what we need-what we are going to get," with no mention of other
issues.
The Trial Examiner does not find it profitable to assess the degree to which
any one of ACA's demands contributed to calling the strike. Would the Unions
have struck if Respondents had continued adamant on the question of union
security, as proposed by ACA, but had agreed to the wage and other demands in
full? Or to a wage raise of 20 percent? Or 10 percent? Would they have
struck if Respondents had acceded in full to the demands for union security but
had agreed to no other demands? The answer is in the realm of speculation.
The Board held in the American Radio Association1° case that a union which
threatens to strike to force an employer to accept an illegal hiring hall agree-
ment violates Section 8 (b) (2) of the Act, and cited National Maritime Union of
America, et al.,14 where such a strike took place, even though other demands, in-
cluding one for a 25 percent wage increase, were advanced. The same general
rationale is illustrated in the Schenley case16 where the Board held that a union
which engaged in a work stoppage where one 16 of the objects was to enforce a
secondary boycott, even though primary grievances may have existed, violated
Section 8 (b ) (4) of the Act.
In American News Go.,17 where a union struck for higher wages while a peti-
tion was still pending before the National War Labor Board, the Board refused
13 82 NLRB 1344.
34 78 NLRB 791.
15 Wine, Liquor & Distillery Workers Union, Local 1, et al. and Schenley Distillers Corpo-
ration, 178 F. 2d 485 (C . A. 2) enforcing 78 NLRB 504.
11 The Trial Examiner , in his Intermediate Report, found that this was the principal
reason.
17 55 NLRB 1302.
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to order reinstatement. To the same effect is Thompson Products, Inc.," where
the purpose of the strike was to force the employer to bargain with a union
other than one certified by the Board. The undersigned. finds the principle
enunciated in these cases applicable here.
The General Counsel, in his brief, cites Stewart Die Casting Corp." to the con-
trary. The undersigned does not find that case applicable here. In the
Stewart case the strike was a lawful economic strike in its inception, during
the progress of which some of the strikers engaged in a sitdown. The Board
held that although the employer might properly have discharged those employees
for this reason, it did not exercise that right but reinstated them on the same
basis as strikers who did not participate in the sitdown, and could not raise the
question later.
There is a qualitative difference between an economic strike, lawful in its in-
ception, during which individual strikers or a group of strikers engaged in illegal
activity, and a strike, such as that in instant case and in American News and
other cases cited above, where one of the objects of the strike is illegal and it
is sought to force the employer to participate in the illegal object. Presumably,
in the first class of strikes, the employer may waive or condone the improper
activity, and if he does he may not thereafter urge it as a reason for refusal to
reinstate or for discharge. In the second category, the question presented is:
Should the Board, as a matter of public policy, order reinstatement where a
union seeks to force an employer to participate in an illegal undertaking, and
goes on strike when he refuses? The undersigned believes that it should not.
2. The General Counsel' s contention that the strike, although economic in
origin, was transformed into an unfair labor practice strike. To convert an
economic, or fair labor practice strike, into an unfair labor practice strike two
factors are necessary: (1) That the employer commit an unfair labor practice
during a strike, and (2 ) that this unfair labor practice prolong the strike. The
difficulty with the concept here, as elsewhere, is in (2). The usual purpose and
-effect of an unfair labor practice committed during a strike is not to prolong
a strike but to shorten it, ideally by breaking it. It is the rare employer who
seeks to prolong it. So here, the General Counsel in his brief argues that the
announcement of the consolidation program to the strikers on January 30 and
February 5 tended to split the ranks of the strikers. As he puts it: "The oppor-
tunity to convert the strike into a race by competing groups was, obviously, what
the company sought." The strike, in other words, tended to be shortened.20
Another difficulty with the conversion concept, and one which follows from
its fundamental lack of realism, is that there is seldom any evidence adduced
to support it. And that is true here. Between 400 and 500 strikers left the
strike, most of them after the date of these letters, which indicates, if anything,
that they had an effect contrary to that for which the General Counsel contends.
The undersigned finds that the strike was not prolonged by any unfair labor
practice of Respondents.
The General Counsel advances an alternate theory that Respondents' reinstate-
is 72 NLRB 886.
19114 F. 2d 840 (C. A. 7) cert. den. 312 U. S 680
20 It is true that the General Counsel uses this language to describe what he believes to
be the effect of addressing the letters in question to the employees of Respondents while All
America was addressing others, not relied on here , to the employees of that company.
These are the "competing groups" he has reference to, not the individual strikers in the
one union . But his observation as to the effect of unfair labor practices during a strike
Is a valid one . The only difference is the difference between vertical splitting and hori-
zontal splitting. '
MACKAY RADIO AND TELEGRAPH COMPANY, INC . 763
ment policy was violative of Section 8 (a) (3) of the Act, without reference to
the question of prolongation. Here he is on stronger ground.
3. The General Counsel's contention that Respondents' policy of reinstatement
and its announcement to the strikers was in itself discriminatory. It should be
stated again that it is not argued that Respondents' program of consolidation
was discriminatorily motivated. The contention is, specifically, that it was an
unfair labor practice to give strikers who returned to work before the end of the
strike preference in filling the existing jobs over strikers who did not come back
until the end of the strike. Those individuals named in Appendix B of the
complaint, 51 in number, are in the latter category. Some or many of them, not
all," had more seniority than some returning strikers who were retained in
Respondents ' employ. It has been found that from 400 to 500 strikers returned
before the end of the strike. The remaining approximately 1,800 to 1,900 strikers
did not return until the end of the strike. All of the 400 to 500 got jobs. In
other words, none were found redundant because of the smallness of their number
in comparison with the total number of jobs available. The great majority of
the 1,800 to 1,900 duration strikers similarly got jobs, upon registrating for
employment. Those employees left over, and for whom there were no jobs,
including those 51 named in Appendix B, were placed upon a preferential hiring
list in order of their seniority. Those who had been employed for more than 1
year were given the option of going on this list or accepting severance pay.
Many accepted the latter. A number of those placed on the preferential hiring
list have been subsequently rehired.
The General Counsel insists that, at the end of the strike, all strikers, those
who returned before the end of the strike and those who remained out for its
duration, should have been treated as one group, and the available jobs filled
from this group on the basis of relative seniority standing. He grants that
the 40 new employees hired during the strike are entitled to be considered in
a group by themselves and given jobs in preference to any of the strikers, unless
it is found, and the Trial Examiner has found to the contrary, that the strike
was converted into an unfair labor practice strike.
Respondents, on the contrary, contend that they were entitled to equate early
returning strikers with the 40 newly hired replacements and guarantee them
priority in the filling of jobs as long as the jobs lasted. In other words, Respond-
ents say that they had the right to retain those strikers who returned to work
during the strike and were not obligated to discharge them in order to make
room for strikers who stayed out for the duration of the strike, even though
some or many of the latter may have had greater seniority. It is conceded by
Respondents that they would have had no right to retain either new replace-
ments or early returning strikers in preference to duration strikers if the strike
had been an unfair labor practice strike. It is found that the strike began' as
an economic strike and remained one.
In support of their contention that their restaffing policy was nondiscrimina-
tory, Respondents rely largely upon N. L. R. B. v. Mackay Radio and Telegraph
Company.12 That case established the right of an employer to retain replace-
21 The Trial Examiner does not find it necessary, in view of his holdings, to discuss
Respondents' contentions, set forth in their brief, that even if they were not warranted
in retaining all persons who had been employed or reemployed during the strike, nevertheless
45 of the 51 persons named in the complaint would still not be entitled to reinstatement
because, among other reasons , 37 of them had less seniority than othar strikers not taken
back.
a 304 U . S. 333.
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ments hired during an economic strike in preference to strikers who wished
to return to their jobs when the strike was over 22 The Court said :
.. . It does not follow that an employer, guilty of no act denounced by the
statute, has lost the right to protect and continued his business by supplying
places left vacant by strikers. And be is not bound to discharge those hired
to fill the places of strikers, upon the election of the latter to resume their
employment, in order to create places for them. The assurance by respond-
ent to those who accepted employment during the strike that if they so
desired their places might be permanent was not an unfair labor practice
nor was it such to reinstate only so many of the strikers as there were
vacant places to be filled.
Respondents argue that the doctrine enunciated in the Mackay case is equally
applicable to employees who did not go out on strike and strikers who returned
to work during the strike. The latter "accepted employment during the strike."
The Trial Examiner is in accord with this view. In the Mackay case the replace-
ments who were retained at the end of the strike came from another office of
the employer and from two offices of its parent company. They were, therefore,
not merely replacements hired on the outside, but were employees in other
offices who had not gone on strike. The Supreme Court held that they could be
retained in preference to returning strikers. Respondents insist, and the Trial
Examiner finds, that there is no valid distinction between such persons and
Respondent's employees here who returned to work during the strike. Respond-
ents, in their brief, point out with some force that to make such a distinction
would be in effect to discriminate against strikers in favor of nonstrikers, and
to give permanent employment to the one group and refuse it to the other be-
cause the latter group had exercised their right under the Act to engage in
concerted activities by going on strike, and the equivalent right to refrain from
concerted activities by quitting a strike.
Respondent's restaffing policy was, therefore, in the Trial Examiner's view,
not violative of the Act. Respondents had the right to accept applications for em-
ployment from early returning strikers and to give them permanent jobs on the
same basis as the 40 employees newly hired during the strike 24 Having this
right, did they then have the right to announce this policy to the strikers directly,
and not through the Union, and invite them to apply for jobs? The Trial Exam-
iner believes that the one is the corollary of the other. Respondents had the legal
right to announce what they had the legal right to do, provided, at least, that
the announcement was not made with intent to restrain or coerce.
There is no substantial evidence in this record of any such intent, and no
evidence at all of any general pattern of antiunion bias or activity. The General
Counsel did adduce some evidence which he contends indicates that Respondents'
policy went beyond what was announced in their letters of January 30 and
February 5, and shows that Respondents intended to give early returning strikers
"super-seniority," that is job preference over duration strikers in the event of
28 In the Mackay case the employees in the San Francisco office of the employer, one of
the Respondents here, went on strike. The Company brought in 11 employees from its
Los Angeles, Chicago, and New York offices to take the places of the strikers. At the end
of the strike 5 were retained permanently and, accordingly, the employer refused to rein-
state 5 of the strikers.
24 It may be pointed out in this connection that not to equate early returning strikers
with newly hired replacements from outside would be to encourage the hiring of replace-
ments during a strike to the detriment of a striking union. Such replacements would
ordinarily not be members of the union and the union would probably lose its majority
status. Here , substantially all of Respondents ' striking employees were union members.
Respondents' restaffing policy was not calculated to disturb the Unions' majority status.
whatever the effect on the duration of the strike.
MACKAY RADIO AND TELEGRAPH COMPANY, INC. 765
any future layoffs. This evidence consisted of a letter and a notice, dated April 7
and July 12, 1948, both written after the strike," by President Stockton, the
first addressed to employees of the three operating Companies. The paragraph
in question in the letter of April 7 was as follows :
We intend to honor fully the undertaking we gave the employees who stood
by us when their support was necessary to keep our cables and radio cir-
cuits working. It is simply an application of the rule of "first in-last out."
However, any detrimental effect of this rule on long-term service men has
been considerably minimized by your decision to return to work on March
31st. We estimate that for all three operating companies, it will effect less
than ten employees with five or more years' service, who would not have
been similarly affected if a straight seniority rule were applied. It will not
involve any changes in your accrued seniority for purposes of pensions and
promotion. [Emphasis in original.]
The General Counsel contends that this paragraph was intended to notify
employees that all future layoffs would be governed by the date of return from
strike, that is, that employees who returned to work during the strike would
never be laid off in the future until all employees who did not return until the
end of the strike had been let go. This letter was written during the "flux"
period and the undersigned believes and finds that Stockton was referring to the
immediate problem of restaffing. The reference to an adverse effect on less than
10 employees with 5 or more years of experience could hardly have been a refer-
ence to future layoffs, since Respondent at that time could have had no knowledge
of how many employees might be laid off from time to time in the future. More-
over, the construction contended for by the General Counsel would be in direct
contradiction to the policy which was adopted prior to the close of the strike, and
discussed at length above. Finally, the evidence is not disputed that all layoffs
after the end of the "flux" period were made on the basis of strict sincerity with-
out any consideration given to the date of return from the strike, with certain
exceptions hereinafter considered.
The notice of July 12, to which the General Counsel takes exception, was sent
to Respondents' department heads and stated :
Effective immediately the following shall apply :
For the purpose of determining job rights in any classification in the
event of layoff or "bumping" back into lower classifications the seniority
of all employees in the affected classifications must be taken into account.
In other words, all employees in the affected classifications must be grouped
in seniority order, and the layoff in the classifications must be effected in
the inverse order of seniority.
The order of return from strike should not be used in determining such
job rights as outlined above.
McMakin's credible testimony is to the effect that the above notice was issued
to correct reports which came to Respondents that certain employees were claim-
ing that they had "super-seniority" in the event of future layoffs, and to clarify
Respondents' policy in the minds of their department heads. The General Coun-
sel's contention would infer that the words "effective immediately" indicate a
contrary previous policy which the notice was designed to reverse. Respondents
insist that they amount to nothing more than a customary prefatory statement
to any announcement of policy.
The Trial Examiner finds the General Counsel's contention with respect to
those two documents to be without substantial support in the evidence, and that
21 And hence without significance so far as prolongation of the strike is concerned.
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents did not at any time adopt or announce a policy of superseniority,
applicable to future layoffs. Certainly it never effectuated such a policy.
B. Individual discharges other than for acts of violence and intimidation
Frank Campbell. Campbell was employed prior to the strike as a part-time
messenger by Mackay, a job to which he was reinstated on April 1 or 3, 1948,
upon the conclusion of the strike. The evidence does not reveal that Campbell
was in any way active in the strike other than as a picket along with the other
striking employees. He was a member of no joint strike committee or in any
other way active in the conduct of the strike.
Respondent Mackay's defense to Campbell's discharge is that of insubordina-
tion. Loughlin, manager of the branch office who discharged Campbell, testified
that on the evening of April 7 he found Campbell embroiled in an argument with
two or three others in the messenger room. Loughlin ordered them all to cease
.the argument and told Campbell to return to his bench. According to Loughlin,
Campbell "took exception" to this and continued the argument with Loughlin
who warned him that if he -did not stop he would be discharged. Campbell did
not stop, whereupon Loughlin discharged him. Campbell testified that he did
not have any "trouble"' with Loughlin during the few days he was employed
after the strike, and that he was not "questioned" particularly by Loughlin.
He did not specifically deny participating in an argument in the messenger
room. His principal testimony was to the effect that he was laid off because
of his claimed failure to register by the deadline on April 7. The evidence does
not substantiate this. While it does reveal that Campbell's registration was
irregular as to place and time he was nevertheless carried on Mackay's employ-
ment rolls and listed as being discharged for cause rather than for late regis-
tration. In any event, there is no substantial evidence that Campbell was dis-
charged because of his union activities, which were minimal, and the undersigned
finds that he was not.
Frederick Nathan. Prior to the strike, Nathan was employed as a radio opera-
tor and was reinstated to this job after the strike. For a year or two prior
to the strike he was ,a shop steward. During the strike, according to his testi-
mony, he was on ACA's diciplinary committee, speakers committee, and food
collection committee, and served as a picket captain. The lists of joint strike
committees published by the striking unions, however, would indicate that he
was a member only of the disciplinary committee. He was no more active
during the strike than many others who were reinstated and not laid off or dis-
charged after the strike.
Nathan was discharged on April 12, assertedly because of events which
occurred in the operating room the previous night when he was on duty from
midnight to 7 a. m. During the night, Nathan relieved another operator, Brown,
for a lunch period. Brown's clock card showed that he returned from lunch at
4: 01 a. m. Nathan testified that he was not feeling well and upon Brown's
return from lunch that he looked around for Grech, the floor supervisor, to
-tell him that he was going home. Not finding him, he went home without per-
mission. The evidence is in conflict as to whether Grech was off the floor
at the precise time that Nathan checked out, but the evidence does show that
Stonkus, the traffic chief, was present and that the traffic chief is in charge of
the operating room when the supervisor is out. Nathan admitted while testify-
2e The record shows that Respondents reinstated the great majority of members of the
strike committees and those otherwise active in the strike.
MACKAY RADIO AND TELEGRAPH COMPANY, INC. 767
ing that he did not seek permission to leave from Stonkus , or leave word with
Stonkus or anyone else to give to Grech.
Shortly after Nathan 's departure Stonkus needed an operator to cover a cir-
cuit and was told by Grech that Nathan should be available . A search for the
latter revealed his absence and Grech reported the matter to Respondents' front
office. The following day Nathan telephoned Germain , the supervisor who came
on duty at 9 a. in, to report that he had left because of illness. Latter that day
a telephone call was made in his behalf to state that he would not report for
his regular turn that night. The circumstances of Nathan 's leaving his turn
without permission were reported to Scribner who ordered his discharge for
violation of rules, and he was so advised by telegram.
Some evidence was adduced to show that, prior to the strike, operators on
occasion left work without permission . The evidence further shows, however,
that the employees were advised upon their reinstatement at the end of the
strike that discipline in this respect would be more strict than in the past. In
pursuance of this policy Respondent contends that it discharged Nathan, and
the undersigned finds accordingly.
Hdlda Verona. Prior to the strike Verona was employed as a full -time mes-
senger. She registered for reinstatement on April 3, 1948, and was told to
report to her branch office. She failed to report for duty by April 5 and her
supervisor , Kaup, sent her a post card requesting that she report by April 15.
When she failed to do so, Kaup directed that her name be removed from the
active employment rolls. During the last week in April Verona appeared at
her branch office and requested reinstatement only to be told that the branch
had a full messenger complement and that no openings were available. On
the following day, upon appeal to Kaup , the latter confirmed this.
Verona was not called as a witness ,and the record is silent as to any union
activities of hers other than going on strike . There is no evidence that her
discharge was occasioned by her membership in or activity on behalf of the
Union, and the undersigned finds that it was not
Alois Turiak. Turiak was hired as an inspector in Mackay's marine division on
May 1945 and was laid off on July 30, 1948, 4 months after the end of the strike.
Approximately a year later, and after a charge on his behalf had been filed with
the Board, he requested and received severance pay amounting to over a thousand
dollars.
Evidence was adduced that during the strike Turiak, like most other strikers,
was on the picket line and that on occasion he trailed supervisors who went out
on jobs and also boarded ships to inform operators that they should regard as a
scab anyone who came aboard to make repairs. On one occasion, at least, Turiak
followed Alden, service manager in the marine division, and there is evidence
that Aldea was aware of this fact. On one occasion when Turiak followed Aldea
he was accompanied by Glazer and Lenkowski, two other strikers. The record
reveals that it was not an uncommon practice for strikers to follow supervisors
while out on jobs and that, in addition to Aldea, Malchow, senior service engineer
in the marine division, and Schneider, supervising marine service engineer in
the same division, were trailed by various other strikers including Rowland,
Lenkowski, Glazer, and Ricky, other marine division inspectors. These persons
other than Turiak, however, were reinstated at the end of the strike and were
retained after Turiak's layoff.
It is admitted by Respondents that Turiak, like Dzuri, whose layoff is herein-
after discussed, was laid off out of order of seniority. They constituted the only
exceptions shown by the record to Respondent 's policy of laying off permanent
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees R4 on a strict department seniority basis, with the exception of Golub-
inski another employee in the marine division, not named in the complaint, who
was laid off along with Turiak and Dzuri.
The function of the marine division is to develop, manufacture, sell, install,
and maintain electronic equipment aboard ships of the merchant marine. The
credible evidence shows that the marine division, after the strike, continued to
operate at a loss and that it became necessary to lay off three inspectors. The
General Counsel does not claim that the decision to lay off was improperly
motivated, but contends that Turiak and Dzuri were discriminatorily selected.
E. H. Price, vice president and general manager of the marine division, discussed
with Aldea, Malchow, and others, the manner of selecting the three employees
for layoff. It was decided by Price and his associates to make the layoffs out of
order of seniority, having first obtained general consent from McMakin, Hender-
son, and Stockton. Turiak, Dzuri, and Golubinski were decided upon. Hen-
derson, McMakin, and Price all testified that there was a diversity of experience
and ability among the inspectors in the marine division and that it was decided
to retain the best all-around inspectors regardless of their seniority. Price,
Aldea, and Malchow all testified that they regarded these three operators as the
least qualified from an all-round standpoint.
The undersigned does not consider it necessary to discuss in detail the qualifi-
cations of the various inspectors in the marine division revealed by the record,
or to judge the relative qualifications of each. He does not find any substantial
evidence that Turiak and Dzuri, who were no more active in the strike than other
marine operators not laid off, were laid off for reasons other than those of
efficiency, or that Respondents' departure from their general policy was dis-
criminatorily motivated.
John Oldaker and George Meek. Prior'to the strike Oldaker and Meek were
employed by Respondent Mackay as coastal station operators at Palto Alto, Cali-
fornia. They remained -out until the end of the strike. During the strike two
replacements, Lusey and Raborn, were-hired as coastal station operators. At
the conclusion of the strike Oldaker and Meek were taken back but laid off on
'October 9 and November 13, 1948, respectviely, while Lusey and Raborn were
retained. Respondent Mackay contends that Oldaker and Meek were taken
back at the end of the strike only as temporary employees, while the General
Counsel contends that they were permanently reinstated and that hence it was
discriminatory to lay them off while retaining Lusey and Raborn who had less
seniority. The testimony of McMakin that Oldaker and Meek were only tem-
porary employees supports Respondents' contention, and it was stipulated that
Mackay's representatives in California would similarly testify, if called as
witnesses, and that Oldaker and Meek were so advised. It was similarly
stipulated that if Oldaker and Meek were called they would testify that they
were told that they were returned as permanent employees.
In view of this state of the record the undersigned finds that the General
Counsel has not met the burden of establishing by a preponderance of the
evidence that Oldaker and Meek were laid off because of their strike activities.
C. Employees in Appendix C discharged because of improper strike activities
Respondents contend that Lawrence Kelly, Frederick Robitzer, Howard Men-
dler, Charles Littenberg, John Parucha, Jack Miano, Hubert Spurr, Harriet
Berger, Harry Parris, and Leonard Lazar were discharged for violence or
27 Oldaker and Meek, whose layoffs are next discussed , were employed as temporary
employees.
- MACKAY RADIO AND TELEGRAPH COMPANY, INC._ 769
other illegal conduct during the strike.Re The cases of these individual dis-
chargees are considered below. -
1. Background
At the beginning of the strike ACA and AACEA established a 24-hour picket
line in front of Respondents' main offices at 67 Broad Street. Kelly, president
of ACA, testified that about 100 pickets were ordinarily maintained at this
point during the hours when the employees reported for and left work, and
that on the occasion of particular rallies to reinforce the picket line, of which,
there were several during the course of the strike, the number of the pickets
was much larger, possibly approximating 1,000. The first of such rallies
appears to have been a few hours after the beginning of the strike when a
mass demonstration took place outside 67 Broad Street in which several hun-
dred pickets participated. Another such demonstration was held on January
6 and another on January 15 when, according to an official strike flash Bul-
letin No. 13, put out" by the striking unions, approximately 2,500 pickets massed
in front of the building. This group included members of New York locals of
the Fur Workers, United Electrical and Radio Workers, Marine Cooks and
Stewards, United Shoe Workers, National Martime Union, and others.
An examination of various strike flash bulletins reveals various threatening
and incendiary statements made by the strikers to nonstrikers during the
course of the strike. Bulletin No. 6 dated January 8, for example, stated :
The subway steps in front of WUC now closed. Now the rats have a
little further to crawl in order to escape the "greetings" from the men and
women they are stabbing in the back.
Bulletin No. 23, dated January 29, declared : "A scab is a scab plus a dirty rat.
The only cure is a baseball bat."
In addition to picketing 67 Broad Street, the strikers extended their activities
to other offices of the Company. On February 10, approximately 20 strikers
invaded Respondent Mackay's office at Rockefeller Plaza. The occurrence is
described in Bulletin No. 33 as follows :
R. B. scabs snub constitution
10:00 a. m. to 1:30 p. m. today RB office of Mackay Radio at 30 Rocke-
fellow Plaza was sewed up tight as a drum by about 20 radio and cable
strikers sending everything from the constitution of the United States to
Jack London's definition of a scab.
Strikers thumped the counter, hollowed for service and threatened to
notify the FCC, all to no avail. The scabby clerks didn't seem to have the
energy to carry themselves to the counter.
Throngs in the corridor watched strikers address such items as the Bill
of Rights and the Declaration of Independence to De Gaulle, in Paris,
Churchill in London, the WFTU, and various others throughout the world.
Tired of awaiting for service, but determined not to leave, the strikers finally
had lunch brought to them. It was a field day for the press photographers
as front editions of the afternoon papers showed.
28 Of these employees, Lazar is listed in Appendix B of the complaint rather than Ap-
pendix C , as one who was denied reinstatement after the strike. Lazar was discharged
along with the other named employees and properly belongs in Appendix C.
770 DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD
The picketing of the homes of nonstriking employees was systematically
carried on, as was shown by the evidence including the following strike flash
bulletin :
The picketing of scabs' homes is now swinging into full action. A couple
of scabs whose homes were picketed yesterday are M. Humphreys, ACCA
and N. Johnson, CCC. In this operation there will be absolutely no favor-
tism ; all scabs will have their homes picketed with equal enthusiasm while
we advise their neighbors by handbill of their strike breaking misdeeds.
The union squad which pickets the homes of social lice ... I. e., scabs
. .. reports more good progress.
Against this background the individual cases of alleged violence by the em-
ployees named in Appendix C are weighed.
2. The discharges
Lawrence Kelly. Kelly was discharged by Respondent Mackay on April 12,
1948, during a 2-year leave of absence which terminated in August of that year.
On August 9 he applied for work and was again informed that his services were
no longer needed.
At the time of the strike Kelly, as has been related, was vice president of the
radio and cable department of ACA. From 1938 through 1947, with the excep-
tion of 2 years, he was a member of all the bargaining committees that negotiated
contracts with Mackay. During the strike he was a member of the joint strike
strategy committee and of the public relations committee. He testified that
he picketed daily and there is no question but that he was one of the principal
figures in the strike , if not the principal one.
On Sunday, February 15, 1948, Kelly together with six other pickets followed
Loughlin and Caruso, two Mackay supervisors, as they left work at 67 Broad
Street, calling them "rat," "scab," and other opprobrious names. Kelly and
his companions pursued the two supervisors up Broadway , until they boarded
a south-bound bus. Kelly and his group boarded the same bus. Loughlin and
Caruso then decided to get off the bus and return to the office to secure police
protection. Loughlin testified that as he and his companions were waiting for
the bus doors to open he was struck in the back of the neck by Kelly, and
that when he and Caruso left the bus, Kelly and his companions caught up with
them and one of them, it is not clear in the record which, shouted : "Now that
we have the bastards, let them have it." According to Loughlin, Kelly struck
at him and he and Caruso separated and ran back to 67 Broad Street.
David Sokol, chairman of Local 15 of ACA, representing employees of Re-
spondent Commercial, which disaffiliated with ACA in May 1948, and a member
of the joint strike strategy committee, testified that later on in the day in which
Loughlin and Caruso were followed, Kelly stated to him and others in ACA
strike headquarters that he had "just taken care of" Loughlin. Kelly admitted
while testifying that he followed the two supervisors as described above, but
denied that he struck Loughlin. The Trial Examiner found his denial uncon-
vincing and accepts the testimony of Loughlin and Sokol as true.
Roy Scoggan, a supervisor of Respondent Mackay, testified that during the
month of February. as he was leaving 67 Broad Street, Kelly called to him :
"We will wipe that smile off your face. We will fix you." About a week after
this incident, as Scoggan crossed the picket line on his way home from work,
a picket shouted : "Here's Scoggan." Scoggan boarded the subway and alighted
at a station 5 or 6 blocks from his home. After walking a short distance two
unidentified men knocked him down, hit him on the head with a hard instrument,
and kicked him in the side. About the same time, anonymous telephone calls
MACKAY RADIO AND TELEGRAPH COMPANY, INC. 771
were made to the Scoggan home by callers who complained at Scoggan's working
during the strike and employed abusive language. On one or more occasions
rocks were thrown through an open window of the Scoggan home, the door
knob was rattled, and the door kicked. About a week after the previously re-
lated attack on Scoggan, his wife, while out walking, was struck in the face
and on the back of the head by two men and told : "If your husband does not
stop work, your daughter will be next, if this does not bring him home." Mrs.
Scoggan, as a result of this attack, bore scars on her face for some time after-
ward . Police were assigned to guard the Scoggan house and a radio police car
escorted the daughter back and forth from school.
Sokol further testified that at meetings of a subcommittee of 'the joint strike
strategy committee, Kelly, on more than one occasion, urged the necessity of
a resort to "violence, if necessary, to prevent anyone from leaving or entering"
67 Broad Street, and asserted that violence would have to be used to stop
strikers from returning to work. He further testified that Kelly suggested the
program of telephone calls to threaten nonstrikers and their families. Scoggan
further testified without contradiction that his home telephone had an unlisted
number and that he had given this number to Kelly sometime in the past. The
Scoggan's telephone number was subsequently changed and thereafter no more
threatening telephone calls were received.
William Schob, an employee who initially went on strike but returned on
January 29, testified that after returning to work he received various anonymous
and threatening telephone calls in some of which he was told : "We are waiting
for you, we know what door you come out, we know your father,' we can take
care of him, we know when you come out, when you go home." On March 10,
as he left work with a group of nonstriking employees, about 20 strikers were
gathered at a restaurant diagonally across from 67 Broad Street, among whom
was Kelly, Silberman, and Mendler. Mendler is another of the employees whom
Respondent contends that it discharged for strike violence. Silberman was
not an employee of Respondents. Mendler, according to Schob's credible testi-
mony, left his group, ran after him, and struck him in the chest and eye, knock-
ing him to the ground. Kelly testified that he did not see this incident. The
undersigned does not credit his testimony.
The above instances were reported to Respondent Mackay by the individuals
concerned shortly after they happened. The evidence does not support the con-
clusion that Kelly personally participated in the attack on the Scoggans. It
does support the conclusion, however, and the undersigned finds, that Kelly was
instrumental in initiating the telephone campaign, that as an officer of ACA and
a prominent strike leader he knew of, condoned, and did nothing to discourage
acts of violence and intimidations which came to his attention, but on the other
hand encouraged them.
Harry Parris. Prior to the strike Parris had been employed as a radio opera-
tor A, having come to work for Respondent Mackay in 1947. During the strike
he served on the joint strike strategy committee and the public relations com-
mittee, along with Kelly and others. About 8 a. in. on March 11, 1948, near the
Bowling Green subway station, the following incident occurred : As Charles
Manley, an assistant superintendent for Mackay, emerged from the subway on
his way to work someone called out : "There's Manley, the scab." Immediately
thereupon someone struck him and knocked him down. He testified that while
he was on the ground someone kicked him and he looked up and saw that it was
Parris. Manley received "four or five good healthy kicks" before he could
get to his feet. Parris, according to Manley, then ran for the' subway station
and Manley yelled for the police. Police Officer Weithorn, whose testimony
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
corroborates that of Manley, came up and he and Manley went down into the
subway station where Weithorn arrested Parris.
Parris admitted that he left the picket line to go to the subway station for
the purpose of heckling nonstriking employees. - He testified that this was part
of the regular "extra-curriculum" activities of the pickets, and that on the morn-
ing in question he expected other pickets to "drift up" to the station, which was
unguarded by the police, since that was the "usual routine." When he arrived
he observed a commotion at a distance of about 50 feet from the station and
went over to investigate; that he first saw Manley in the middle of a group, off
his balance and calling for help, and that, without touching Manley, he walked
back at a normal pace to the subway.
The undersigned found Parris' testimony, excepting his admissions, wholly
unconvincing, and credits that of Manley and Weithorn. This incident was
reported by Manley to Respondent's officials by telephone from the precinct
station to which both Manley and Parris were taken. Later the same day Man-
ley reported the matter to McMakin in person. On March 22 Parris was con-
victed in the city magistrate court of disorderly conduct as a result 'of this
incident.
Hubert Spurr. Spurr did not testify and no evidence was adduced to show
that he was in any position of influence or leadership during the strike or in
ACA.
About 8 o'clock in the evening of January 28, 1948, one Montlack, not em-
ployed by Respondents, went to 67 Broad Street to meet his wife who was sec-
retary to one, of Mackay's officers. As he left the subway his hat was blown
off and while chasing it he went around the picket line. Spurr, who was on
picket duty, suddenly and without warning kicked him in the shins and struck
him in the mouth with his fist. Montlack's wife informed McMakin of the
attack that evening.
It was stipulated by counsel that Montlack, if he were called as a witness, would
testify that subsequent to the date of his conviction a cash settlement was effected
between him and Spurr as a result of which Spurr compensated him for damages
in the amount of about $150.
Harriet Berger. Berger was discharged by Respondent Commercial on April
9, 1948, assertedly for an act of violence against the person of John O' Brien,
a nonstriking employee of Commercial. Berger seems to have been active during
the strike only as a picket and one of 24 members of the speaker's bureau com-
mittee. McMakin testified credibly that on at least one occasion he heard
Berger call women employees coming and going from 67 Broad Street, "com-
'pany prostitutes" and "whores." Berger was not called as a witness.
On March 10, 1948, John and Thomas O'Brien, both employees of Commercial
who had been on strike, decided to return to work. They met at a restaurant
across from Respondent's offices and then proceeded across the street. As
Thomas O'Brien entered the Arcade of 67 Broad Street, Silberman, active in
the strike on behalf of ACA but not an employee ofeither of Respondents, leaped
upon him and knocked him to the ground. Two policemen on duty at the
building separated the men. As John O'Brien started to go to his brother's
assistance he was seized by two policemen who held his arms. While he was
being held, Berger stepped forward, called him a "dirty scab," and struck him
on the rim of his spectacles, cutting him above and beneath the eye. The par-
ticipants were taken to a police station. On April 6 Berger was tried in the
city magistrate's court on a charge of disorderly conduct, and acquitted. A
report of this affair was made by John O'Brien to McMakin on the evening of
the day it occurred, and later the report of the trial was communicated by Re-
spondents' attorney to McMakin. Berger's discharge followed this by 3 days.
•MACKAY RADIO AND TELEGRAPH COMPANY, INC. 773
Although Berger was acquitted, Commercial, at the time it discharged her, had
in its possession John O'Brien's report of the incident, and McMakin himself
had observed the condition of O'Brien's eye.
Howard Mendler. Prior to the strike Mendler had been employed as an as-
sistant clerk by Mackay. During part of 1947 he was one of the shop stewards
for, ACA, but had ceased to be so at the time of the strike. During the strike
he was -not a member of any of the joint strike committees and was apparently
active, only as a picket.
William Schob, an employee of Respondent Mackay, who had returned from
the strike on January 29, previously mentioned above in connection with Kelly,
testified that on the evening of March 10 he left work with about 12 other per-
sons, crossed over Broad Street to Beaver Street, and walked up the south side
of that street. As he proceeded he observed a group of about 20 men standing
on the north side of Beaver Street, among whom were Kelly, Silberman, and
Mendler. After Schob had gone about a block he heard Mendler call out : "That
little son of bitch is for me," upon which some of the group of 20 ran across
the street. Mendler, according to Schob, struck the latter in the chest and eye,
knocking him to the ground. Mendler was convicted of disorderly conduct on
March 29, 1948.
Mendler's recollection of this incident while testifying was vague and uncer-
tain. He stated merely that he did not remember calling Schob "a son of a bitch,"
but conceded it was possible that he had done so, and did not deny striking
Schob, saying only that he did not know whether or not he did. The attack
on Schob was reported to McMakin the following morning.
Charles Littenberg, Jack Miano, Leonard Lazar, and Frederick Robitzer.
Prior to the strike, the above individuals were employed by Respondent Mackay,
Littenberg as a clerk, Miano as an assistant service writer, Lazar as a coastal
station radio operator, and Robitzer as a radio operator A. None of these indi-
viduals was active in union affairs either before or during the strike, excepting
that Lazar was a shop steward for a year prior to the strike, and Robitzer was
a member of the joint strike strategy committee during the strike.
On Sunday, February 15, 1948, an incident occurred which led to the discharge
of these four employees. On this day they were assigned to picket the home of
the Albert Schobs, the parents of William Schob, previously mentioned, and two
other sons, all employees of Mackay, and one daughter, an All America em-
ployee. The three sons and the daughter had originally gone on strike, the sons
returning to work toward the end of January, while the daughter remained on
strike. In accordance with established practice, Littenberg, Miano, Lazar, and
Robitzer, together with another employee, picketed the Schob residence, dis-
tributed handbills to the neighbors, and carried signs characterizing the Schob
boys as "scabs" and "strike breakers." Mrs. Schob asked the pickets to go away,
and threatened to call the police and have a summons issued. The credible
testimony of Mrs. Schob is that Littenberg replied : "Shit with your summons.
I will shove it up your ass." Littenberg was not called as a witness. The
statements attributed to him were denied by Miano and Lazar. The undersigned
does not credit their denials.
John Parucha. Prior to the strike Parucha was employed as a traffic chief by
Respondent Mackay. As has previously been found in connection with the dis-
charge of Nathan, one of the duties of a traffic chief is to assume charge of a
radio operating room in the absence of the floor supervisor. Ordinarily,, prior to
the strike, there were about 3 chiefs in Mackay's operating room, 1 or 2 floor
supervisors, and from 25 to 30 radio operators. Traffic chiefs were not assigned
to any particular circuit or machine but walked around the floor observing the
work of the operators.' Each was responsible for a certain number of circuits,
974176-52-vol. 96-50
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to which the floor supervisors assigned individual operators. After the oper-
ators were assigned by the supervisor the traffic chief assigned traffic to them
in accordance with his judgment, having in mind the urgency of the traffic. He
transferred operators from one circuit to another when necessary, and when he
needed an additional operator he reported that fact to the floor supervisor. The
credible testimony of McMakin is to the effect that the traffic chief had the au-
thority to discipline radio operators under his direction, to recommend hiring
and discharging, and to settle grievances. To, the above effect is also the testi-
mony of John Grech, a floor supervisor, and Stonkus, a traffic chief. Parucha, on
the other hand, denied that he had authority to recommend hiring or firing or
that he could make work assignments.
The authority of the traffic chiefs had been, for some time prior to the
strike, a bone of contention between Respondents and ACA, as the result of which
the traffic chiefs themselves tended to disclaim their authority, while Respond-
ents insisted that they could no longer be represented by the Union. Respondent
Mackay contends that Parucha's testimony goes more to the question of what
authority the traffic chiefs wished to have, rather than the authority which the
Respondent had actually vested in them. Since the 1948 strike the title of traf-
fic chief has been changed to that of traffic supervisor and, according to Me-
Makin, they now carry out their supervisory functions as Respondent contends
they did, or should have done, previously.
The question is perhaps a close one, but on all the evidence the undersigned
believes and finds that the traffic chiefs, at the time of the strike, were minor
supervisors within the definition of the Act, and hence not entitled to the pro-
tection of the Act.
Conclusions as to the Discharges
Counsel for the charging parties argues that the incidents related above con-
stitute nothing more than minor clashes on the picket line, do not justify their
discharge, and that the individuals in question should be ordered reinstated. The
undersigned disagrees. In his opinion, and he so finds, the'above- described
activities fall within the area of activity proscribed by Perry Norwell Company,'
Sunset Line and Twine Co.,' and similar decisions of the Board. He finds that
'Respondents discharged the above-named employees because of their coercive
actions on the picket line, designed to force employees to cease work, and not
because of their legitimate concerted activity, and he will not recommend that
they be ordered reinstated.
CONCLUSIONS OF LAW
1. American Communications Association and All America Cable Employees
Association are labor organizations within the meaning of Section 2 (5) of the
Act.
2. Respondents, Mackay Radio and Telegraph Company, Inc., and Commercial
Cable Company, are, and at all times relevant herein were, engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
3. Respondents have not engaged in any unfair labor practices within the
meaning of the Act.
20 80 NLRB 65.
80 79 NLRB 1487.
LEWITTES AND SONS
Recommendations
775
Upon the basis of the foregoing findings of fact and conclusions of law and
upon the entire record in the case, the undersigned recommends that the com-
plaint herein be dismissed.
WILLIAM, BERTHA, MORRIS, FANNIE, DAVID, CHARLOTTE, SARAH, AND
ISRAEL LEwrrTES , COPARTNERS D/B/A LEWITTES AND SONS and UP-
HOLSTERERS INTERNATIONAL UNION OF NORTH AMERICA, AFL, PETI-
TIONER . Case No. 2-RC-3506. October 11, 1951
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before I. L. Broadwin, hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
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-mem-
ber panel [Members Houston, Reynolds, and Styles].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved' claim to represent certain
employees of the Employer.
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act, for the following
reasons:
The Employer and Local 78 contend that their current contract,
which was executed November 16, 1950, and will expire August 1,
1952, constitutes a bar to this proceeding. The Petitioner argues that
this contract was executed in disregard of the instructions of the then
existing membership of Local 78, and that there has been a schism
in Local 78. For these reasons it contends that the contract in ques-
tion cannot operate as a bar.
As to the contention that the contract was not validly executed,
the record discloses the following pertinent facts :
Negotiations which resulted in the execution of the current agree-
ment between the Employer and Local 78 began early in September
1950. The bargaining conferences were held between the Employer
3 Local 78, Furniture Worker's Union, CIO (hereinafter Local 78), was permitted to
intervene on the basis of a current contract with the Employer.
96 NLRB No. 109.