Huck Mfg., Co.

National Labor Relations Board - Board Decisions

Jan 26, 1981

254 N.L.R.B. 739 (N.L.R.B. 1981)

HUCK MANUFACTURING COMPANY
Huck Manufacturing Company and United Steel-
workers of America, AFL-CIO. Cases 16-CA-
8514 and 16-CA-8604
January 26, 1981
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On April 29, 1980, Administrative Law Judge
Russell L. Stevens issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, the General Coun-
sel filed a brief in answer to Respondent's excep-
tions, Respondent filed a response to the General
Counsel's answering brief, the Charging Party filed
cross-exceptions and brief, and Respondent filed a
reply to the Charging Party's cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions' of the Administrative Law
I We find no merit to Respondent's exceptions to the Administrative
Law Judge's findings of 8(a)(l) violations based upon statements made by
Respondent's vice president and general manager, Mervin Mull, in a
speech to employees on May 21, 1979. We think that certain of Mull's
statements, as found by the Administrative Law Judge, were coercive.
We consider these statements to exceed the bounds of permissible expres-
sion under Sec. 8(c) of the Act, and we see no prejudice to Respondent
in relying upon them to establish an unfair labor practice notwithstanding
comments made by the General Counsel at the hearing pointed to by Re-
spondent in its brief in support of exceptions. We note that the complaint
alleged that Mull orally made specified threats on or about May 21, 1979,
and the Administrative Law Judge's findings are consistent with those al-
legations. Moreover. there is no dispute as to the authenticity of the text
of Mull's speech that was placed in the record and relied upon by the
Administrative Las Judge in making his findings.
2 In adopting the Administrative Law Judge's conclusion that Respon-
dent bargained in bad faith concerning wage increases, we find that, by
posting a notice to employees concerning a proposed increase to be effec-
tive July 30, 1979, on the day after mailing the proposal to the Union and
before opportunity for bargaining on the matter, Respondent circumvent-
ed and disparaged the Union and demonstrated bad faith in bargaining.
We find it unnecessary to determine whether Respondent implemented
that proposed increase., as the implementation was not alleged as a viola-
lion in the complaint, and a finding that the proposal was implemented
would riot change our remedial order. For similar reasons e den, the
Judge2 and to adopt his recommended Order,3 as
modified herein. 4
AMENDED CONCUSIONS OF LAW
The Administrative Law Judge's Conclusions of
Law are amended as follows:
1. Substitute the following for Conclusion of
Law 5:
"5. Respondent violated Section 8(a)(1) of the
Act by: disparaging and reprimanding employees
for engaging in a lawful strike; telling employees
that those who struck on May 15, 1979, would be
paid less for working May 14 than employees who
did not strike; threatening permanently to replace
employees immediately if they engage in a strike;
harassing employees because they engaged in a
lawful strike; and paying employees who refrained
from engaging in strike activities at double their
usual pay rate for work on May 14 through May
18, 1979."
2. Substitute the following for Conclusion of
Law 7:
"7. Respondent violated Section 8(a)(5) and (1)
of the Act by: failing and refusing to bargain with
the Union in good faith; bargaining directly with
employees on matters subject to collective bargain-
ing; unilaterally implementing portions of its previ-
ous offers made during negotiations with the Union
request of the General Counsel, in which the Charging arty joins, that
we initiate procedures to place in the record of this case two documents
that bear upon the question of whether the proposed wage increase of
July 30 was implemented and came to the attention of the General Coun-
sel after the hearing through investigation of another case. However, we
do not iew the General Counsel's submission of these documents in his
answering brief as an improper disclosure of the documents. and we deny
Respondent's request to strike that part of the General Counsel's brief
dealing with the documents
3 The Administrative Las Judge recommended that employees who
were on strike May 15 through May 18, hut worked on May 14, he paid
for May 14 at the higher pay scale given nonstrikers who worked May
14 We find merit in the Charging Party's contention that this remedy is
inadequate and that strikers should be paid an amount based upon the in-
creased pay rates given nonstrikers for the period May 14 through May
18 We note that such a remedy is consistentl t ith the remedy provided
by the Board in cases like .4ero-Motive Manufacturing Company, 195
NLRB 790 (1972), affd. 475 F.2d 27 (6th Cir 1973). and Rubatex Corpora-
tion, 235 NLRB 833 (19781, affd 01I F.2d 147 (4th Cir 1979), where
nonstriking employees received bonus payments for working during a
strike. No different result should obtain in the instant case merely because
Respondent styled the additional payment as double "wages" rather than
a bonls
4 We modify the Administrative Law Judge's Cinclusions of l.aw.
Order. and notice to conform to his findings of fact and our nmldification
of the remedy,
254 NLRB No. 88
739
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the absence of an impasse in negotiations; unilat-
erally increasing the wage rate paid employees,
who did not strike, for work on May 14 through
May 18; failing and refusing to negotiate with the
Union on the subject of arbitration; and insisting
that any contract with the Union be for a term of
less than I year."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied and set out in full below, and hereby orders
that the Respondent, Huck Manufacturing Compa-
ny, Waco, Texas, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Violating Section 8(a)(1) of the Act by: dis-
paraging and reprimanding employees for engaging
in a lawful strike; telling employees that those who
struck on May 15, 1979, would be paid less for
working May 14 than employees who did not
strike; threatening permanently to replace employ-
ees immediately if they engage in a strike; harassing
employees because they engaged in a lawful strike;
and paying employees who refrained from engag-
ing in strike activities at double their usual pay rate
for work on May 14 through May 18, 1979.
(b) Violating Section 8(a)(3) and (1) of the Act
by paying employees who were on strike from
May 15 through May 18, 1979, for work on May
14 at rates below those paid nonstriking employees
who worked on May 14.
(c) Violating Section 8(a)(5) and (1) of the Act
by: failing and refusing to bargain with the Union
in good faith; bargaining directly with employees
on matters subject to collective bargaining; unilat-
erally implementing portions of its previous offers
made during negotiations with the Union in the ab-
sence of an impasse in negotiations; unilaterally in-
creasing the wage rate paid employees, who did
not strike, for work on May 14 through May 18;
failing and refusing to negotiate with the Union on
the subject of arbitration; and insisting that any
contract with the Union be for a term of less than
1 year.
(d) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
their Section 7 rights.
2. Take the following affirmative action which is
deemed necessary to effectuate the purposes of the
Act:
(a) Make whole employees who were on strike
from May 15 through May 18, 1979, but who
worked May 14 and were paid at a lower pay rate
than nonstriking employees who worked May 14,
by paying the strikers at the same rates of pay the
nonstrikers were paid for work on May 14, with in-
terest. In addition, pay the strikers an amount equal
to the bonus paid to nonstrikers for working May
15 through May 18, with interest.
(b) Upon request, bargain collectively in good
faith with the Union as the exclusive representative
of all employees in the appropriate unit with
regard to rates of pay, hours of employment, and
other terms and conditions of employment and, if
an understanding is reached, embody such under-
standing in a signed agreement. The collective-bar-
gaining period will begin from the date when Re-
spondent commences to bargain in good faith, and
the Union's certification will be extended for a
period of 1 year from the date when Respondent
begins to bargain in good faith with the Union.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment re-
cords, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its office in Waco, Texas, copies of
the attached notice marked "Appendix." 5 Copies
of said notice, on forms provided by the Regional
Director for Region 16, after being duly signed by
Respondent's authorized representative, shall be
posted by Respondent, immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 16,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
s Inl the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National abor Relations Board"
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL. LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
740
HUCK MANUFACTURING COMPANY
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT violate Section 8(a)(l) of the
National Labor Relations Act by: disparaging
and reprimanding employees for engaging in a
lawful strike; telling employees that those who
struck on May 15, 1979, would be paid less for
working May 14 than employees who did not
strike; threatening permanently to replace em-
ployees immediately if they engage in a strike;
harassing employees because they engaged in a
lawful strike; and paying employees who re-
frained from engaging in strike activities at
double their usual pay rate for work on May
14 through 18, 1979.
WE WILL NOT violate Section 8(a)(3) and (1)
of the Act by paying employees who were on
strike from May 15 through May 18, 1979, for
work on May 14 at rates below those paid
nonstriking employees who worked on May
14. Those employees who were on strike May
15 through May 18, 1979, are:
Lloyd W. Lowry
Mike Luxfan
George
McFarland
John P.
McGaugh
Michael J.
McGaugh
Leonard
McLennan
J.T. McLearaen
Rusty Mashburn
John Henry May
James Meadows
Camille Minns
Tom J. Moore
Jimmie Nitichla
Johnny
Northcutt
O.C. Pierce
Mike Saxton
Gary Culverhouse
Dale Herring
David Marshall
Tony Rio jas
Tommy Wilhite
Jerald Russel
Jimmy Dickson
Roy Cemons
Gerry Bush
J.E. Hanks
Victor Martin
Donald Campbell
Lonnie Walker
S.L. Pimpton
Luther Pimpton
David . Ramos
Jim D. Reed. Jr.
Rick McGaugh
Mike Adams
Dennis J. Ayers
Richard Benton
Darleen Brinkley
Robert D.
Brown
Artia L. Brown
Billy Brown
Marie Bolden
Orville E.
Chappell
James L. Chism
Gene Claridy
Ben Cunningham
Palmer Collier
William R. Davis
Michael Denny
Mike Dominguez
Vernon R.
Drakes
Norbert Fetsch
Marle Gardy
Billy Grobe
G.T. Hendrix
Dole Huricuf
Rose M. Hughes
Tom Hughes
Wmin. E. Keton,
Jr.
Aaron Lang
George E.
Lehrmann
Greg Lglehart
Robert Reesing
Tom Ross
Kenneth W. Bolden
Kenneth Ruth
Roy Rutkoski
Ray Salazor
Maximilius Santana
Larry H. Sligel
Michael J. Smith
Rubbie Sterling
Morris Stewart
Jack Stone Jr., "W.D"
Kin Sydow
D.L. Thompson
Frances F. Venable
Ronnie Walker
Johnnie Mae Walker
C. W. Wendt Jr.
Jerry Wilson III
Robert L. Wright
Ralph T. Andre Edwards
Jimmy Thompson
Bernice Danford
James Hollingsworth
Nino Santane
Charlie Hughes
Bob Barnes
Linda Brewington
Frankie Ingram
Mike Jones
Jack Reed
Mark Tardy
Tom Askins
WE WILL NOT violate Section 8(a)(5) and (1)
of the Act by: failing and refusing to bargain
with the Union in good faith; bargaining di-
rectly with our employees on matters subject
to collective bargaining; unilaterally imple-
menting portions of our previous offers made
during negotiations with the Union in the ab-
sence of an impasse in negotiations; unilateral-
ly increasing the wage rate paid employees
who did not strike for work on May 14
through May 18; failing and refusing to negoti-
ate with the Union on the subject of arbitra-
tion; and insisting that any contract with the
Union be for a term of less than year. The
appropriate unit involved herein is:
All production and maintenance employees
at our Waco, Texas, plant, but excluding all
office and clerical employees, professional
and technical employees, guards, watchmen,
and supervisors as defined in the Act.
WE WILl. NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of their Section 7 rights.
WE WILl., upon request, bargain collectively
in good faith with the Union as the exclusive
representative of all employees in the appro-
priate unit, described above, with regard to
rates of pay, hours of employment, and other
terms and conditions of employment and, if an
understanding is reached, embody such under-
741
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
standing in a signed agreement. The collective-
bargaining period will begin from the date
when we commence to bargain in good faith,
and the Union's certification will be extended
for a period of I year from the date when we
begin to bargain in good faith with the Union.
WE: Wlll make whole all the above-named
employees who were on strike from May 15
through May 18, 1979, but who worked May
14 and were paid at a lower pay scale than
nonstriking employees who also worked May
14, by paying the strikers at the same rates of
pay the nonstrikers were paid for work on
May 14, with interest. In addition, we will pay
the employees who were on strike an amount
equal to the bonus paid nonstriking employees
who worked May 15 through May 18, 1979,
with interest.
HUCK MANUFACTURING COMPANY
DECISION
STATEIMENT 1OF THIE CASE
RUSSELL. L. ST:VENS, Administrative Law Judge: This
case was heard in Waco, Texas, on December 10, 11, 12,
13, and 14, 1979, and January 22, 1980. The charge in
Case 16-CA-8514 was filed on May 29, 1979,' by United
Steelworkers of America, AFL-CIO (the Union). The
charge in Case 16-CA-8604 was filed by the Union on
July 20. By order dated November 8, the Regional Di-
rector for Region 16 of the National Labor Relations
Board consolidated said two cases for hearing. The com-
plaint in Case 16-CA-8514 alleges that Huck Manufac-
turing Company (herein called Respondent) violated
Section 8(a)(l) and (3) of the National Labor Relations
Act, as amended. The complaint in Case 16-CA-8604 2
alleges that Respondent violated Section 8(a)(1), (3), and
(5) of the Act.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel, Respondent, and the
Charging Party.
FINDINGS OF FACT
I. JURISDICTION
Respondent is, and at all times material herein has
been, a Michigan corporation with its main office in De-
troit, Michigan. Respondent maintains a plant located at
8001 Imperial Drive in Waco, Texas, where it is engaged
in the manufacture of metal fasteners. During the past
year, Respondent, in the course and conduct of its busi-
ness operations, purchased and received goods valued in
I All dates hereinafter are within 1979, unless stated to be otherwise
a As amended at the hearing, with leave of the Administrative Law
Judge, to add par 7(k) (threat by Leo Knott), and to correct certain
clerical errors
excess of $50,000 directly from sources located outside
the State of Texas. During the same period Respondent
sold and shipped goods valued in excess of $50,000 di-
rectly to customers located outside the State of Texas.
I find that Respondent is, and at all times material
herein has been, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOI.VED
United Steelworkers of America, AFL-CIO, is, and at
all times meterial herein has been, a labor organization
within the meaning of Section 2(5) of the Act.
I11. THE ALEGED UNFAIR LABOR PRACTICES
A. Background3
Respondent's parent corporation owns several plants
in Canada and the United States, some of which are or-
ganized under United Automobile Workers representa-
tion. The Waco facility was established several years
ago, and first was organized by the Union in 1978. The
Union has been the representative of the following unit,
at all times since it was certified December 26, 1978:
All production and maintenance employees at Re-
spondent's Waco, Texas plant, but excluding all
office and clerical employees, professional and tech-
nical employees, guards, watchmen, and supervisors
as defined in the Act.
Bargaining sessions were held February 9; March 8, 9,
and 26; April 10 and 11; May 14 and 22; June 8; July 19;
August 2; and November 2. The two principal negotia-
tors were Loren Brantley 4 for the Union and L. G. Clin-
ton, Jr., Respondent's attorney for Respondent. Others
attended for both sides, including representatives from
the local union, the IUD. Many proposals were made by
both sides, and some progress was achieved, but the par-
ties were not able to arrive at a mutually acceptable con-
tract, and still remain apart on all economic, and most of
the important noneconomic, proposals. The Union al-
leges that Respondent has not bargained in good faith,
and Respondent contends that it has bargained hard but,
nonetheless, in good faith.
During the course of bargaining, and at the suggestion
of Brantley, some of Respondent's employees went on
strike May on 15. The strike was not successful, and the
striking employees returned to work on May 19. On
May 21 Mervin Mull, Respondent's vice president and
general manager, made two speeches to employees, one
at 7 a.m. for some employees and one at 3:40 p.m. for
those employees who did not attend the earlier meeting.
The General Counsel alleges that, during the speeches,
Mull departed from a prepared text and made certain
statements which constituted violations of the Act.5 Re-
spondent contends that Mull read the text, departing
:' his hackground summary is based on credited testimony and evi-
dence that is not in dispute.
I4 Idividals are referred to herein by their last names, with first ini
tials in the event last names are the same as other last names.
r The prepared text, G.C Exh 2, is not alleged to be in violation of
the Act other than i those specific instances discussed infra.
742
HUCK MANUFACTURING COMPANY
therefrom only at the start of the speech in order briefly
to welcome the employees to the meetings.
During the course of negotiations Respondent institut-
ed certain of its proposals on the basis that the parties
were at impasse. The General Counsel contends that the
proposals were instituted in the absence of an impasse,
and that Respondent's actions constituted violations of
the Act.
On May 21 Respondent discharged Norbert Fetsch,
and the General Counsel alleges that the discharge was
in violation of Section 8(a)(3) and (I) of the Act. The
General Counsel also alleges that several statements and
actions by Respondent's supervisors and managers con-
stituted violations of Section 8(a)(l) and (3) of the Act.
The allegations of the complaint are discussed below, se-
riatim.
B. Alleged Solicitation and Threat by Bourgault
The complaint in Case 16-CA-8514 alleges that, on
May 10, Respondent's supervisor, Paul Bourgault, solicit-
ed an employee (Fetsch) to drop his union activity and
threatened him with job loss.
Respondent first was made aware of Fetsch's union ac-
tivity in late October 1978, when he commenced wearing
a union badge approximately 1-1/4 inches in diameter,
reading "Vote yes for U.S. Steelworkers, AFL-CIO."
Approximately a week later Fetsch added a second
badge of approximately 1-1/4 inches in diameter, to his
clothing, stating "Voluntary Organizer." Both badges
were plainly visible, on Fetsch's chest. The two badges
were worn daily from late October on, and were seen by
Bourgault, who was Fetsch's supervisor, as well as other
supervisors and management personnel. During the same
period of time, approximately 60 or 70 employees wore
the vote badge, and at least 15 employees wore the orga-
nizers' badge. In October and continuing until mid-De-
cember, Fetsch distributed handbills in front of the plant,
on more than five occasions. Fifteen or more other em-
ployees participated in the handbilling. Bourgault and
other supervisors and management personnel, from a dis-
tance of 10 to 50 feet, saw Fetsch distributing the hand-
bills. In addition, Fetsch distributed a booklet 6 with pic-
tures of babies and captions relating to boss-employee
conduct, to between 5 and 20 employees. Other employ-
ees also distributed handbills and the booklets.
Fetsch and Bourgault had a conversation on May 10.7
According to Fetsch, Bourgault said several supervisors
6 G.C. Exh. 10
7 Fetsch testified concerning two separate conversations he had in Oc-
tober and November 1978 with Bourgault and Harold Gibson, Respon-
dent's personnel manager. According to Fetsch. Bourgault reprimanded
him for being out of his work area, and told him in front of other rank-
and-file employees that he was "a union trouble-maker," and Gibson im-
plied that Fetsch's union activity adversely could affect his receiving
extra money for training other employees. Fetsch further testified that,
during Thanksgiving week of 1978, he asked for a day's vacation prior to
Thanksgiving and that Bourgault refused, after swearing and accusing
Fetsch of organizing the Union on company time. The alleged incidents
were beyond the 10(b) period, and are not alleged as violations of the
Act. This testimony was admitted on the grounds of motive and animus
Bourgault testified that he reprimanded Fetsch in October because of
complaints from other supervisors that Fetsch was in their departments
disturbing employees, but that no other subject was discussed Bourgault
also testified that, in December 1978, he told Fetsch, "There's nothing
had complained to him about Fetsch going into depart-
ments other than his own, to conduct union business on
company time, and that such activity must be stopped.
Fetsch continued:
I said, "Paul, you know I got to go into the other
Departments, to do my job," and he said-he said,
"I want you to cool it, because," he said, "The
Company's getting on my ass and," he said, "I'm
getting a lot of heat from them." He said, "Just as
long as you kind of cool it down, you'll be all
right." And then, I told him, I said, "Paul, I want
to know why you've been getting on me and
Gerry's ass about walking around the plant, when
there's another employee named Herb Voss, that's
been walking aroun, but you ain't said nothing to
him." He said, "How do you know that?" and I
said, "Well," I said, "It's been going on for 5 years
and you haven't stopped him yet." And then, he
said, "Norbert," he said, "you ain't nothing but a
union agitator; always starting some kind of shit."
Fetsch testified that, approximately an hour later, Bour-
gault again talked with him and said, among other
things, "I want you to know that it's not too late to
change your mind about all these activities .... Even
Mr. Mull isn't too valuable to be replaced .... every-
thing would be all right, if I did change my mind."
Fetsch then said he supported the Union 100 percent and
would go on strike because Respondent had not been ne-
gotiating "in any manner." Fetsch continued:
He said, "Norbert, you're really not," he said,
"You're really not organizing a union right; you
know that, don't you?" and I said, "No, I don't.
What do you mean?" and he said, "Well, if you
really want to make an impression on the Company,
you'd sabotage these machines," and I said, "What!"
and I jumped up to the machine, and I done like
this [indicates]; I said, "You mean, like this"--going
to cut the machine off. He said, "You know damn
well that ain't what I mean," and then, I asked him,
I said, "Paul," I said, "You know all I want to do is
go out there on strike because the Company failed
to negotiate; nothing else." And, I said, "Have you
got any complaints about my work record?" He
said, "No, Norbert." He said, "I wished everyone
would do as good a job as what you've done."
Fetsch testified that, in mid-February, he and Bourgault
argued concerning some of the items that were being ne-
gotiated. Fetsch further testified that, following his atten-
wrong with your work but I think your attitude has to go " and that
he refused Fetsch's request for a walkoff during the Thanksgiving period
of 1978. because two senior employees were off and he could not spare
Fetsch. Fetsch then asked for I day off. Fetsch crroborated Bourgault
on this point Gibson did not deny Fetsch's testimony relatise Io the
training molney, but Fetsch acknosuledged that employees customarilN re-
ceived additiolnal moncye for training ther employees, and that the addi-
tional money was discontinued after the training as completed Fetsch
said (iibsor told him his training mrnne as discontinued for the cus-
tomary reason Fetsch's testimony relative to the incidents has been care
fully considered but is given no weight because his recitations are doubt-
fill. and are not determinati'e of an_ issue
743
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dance at Mull's first meeting with employees on May 21,
he met with Mull and Gibson at approximately 7:30 a.m.
and was fired, with the reason being given that he sabo-
taged No. 61. Fetsch denied sabotaging the machine. As
he was preparing to leave, Gibson said, "Norbert, Huck
doesn't need people with your attitude working for us."
Fetsch testified that he was told none of the details con-
cerning the alleged sabotage.
Bourgault acknowledged talking with Fetsch on two
occasions on May 10. Bourgault said he reprimanded
Fetsch during the first conversation, for being in depart-
ments other than his own, which was creating com-
plaints from other supervisors, and that Fetsch objected
to the reprimand:
Q. Did he say anything else?
A. And that I should-why didn't I tell Herb
Ross to stay in his own department like I'm telling
them. And I asked him how he knew I hadn't told
Herb Ross to stay in his department and he said
that I couldn't possibly have done that because he'd
been doing it for five years.
That's when I told him, "Don't start any shit,
Norbert. Just stay in your department."
Bourgault testified that, during the second conversation,
Fetsch said he supported the Union 100 percent, and that
the employees were going out on strike because Respon-
dent was not negotiating, or not negotiating in good
faith, and that "Gibson stated that anyone going out on
strike would be fired." Bourgault said he replied, "Well,
if you go out on strike, I'm going to have to put some-
body else on your machine," and that anybody, includ-
ing Bourgault, Fetsch, and even Mull, could be replaced.
Bourgault continued:
That's when he said, "Even if it's blown up?"
And I said, "Norbert, are you threatening me?
Are you saying that there's going to be something
wrong with this machine when you leave?"
And Norbert said, "What difference does it
make? One on one."
Q. Say that again, sir.
A. "What difference does it make? One on one?"
Q. You shrugged your shoulders?
A. Yeah. You know like-[witness indicating].
Q. Well, did Fetsch shrug his shoulders when-
A. Yeah. He shrugged his shoulders and said,
"What difference does it make? One on one."
Q. What else was said?
A. Well, after that I told him, "Norbert, in the
last five years you've worked here, it isn't logical
that you should feel this way because you haven't
had one hassle from your supervisor since you've
been in this department and you still feel this way."
And he looked at me and said, "It isn't you. It's
the company."
And that's how the conversation ended. 8
Petsch generally corroborated this testimony by Bourgault, and ac-
knowledged the possibility that he replied to Bourgault when the latter
asked if Fetsch was threatening to blow up No. 61, "One on one."
Discussion
Since the matter of alleged sabotage is the core of this
part of the controversy, it is discussed in detail infra.
So far as the alleged solicitation and threats are con-
cerned, the matter can be resolved only on the basis of
credibility. It is clear that much animosity is involved, on
the parts of both Fetsch and Bourgault. Fetsch did not
testify that Gibson participated in either of the conversa-
tions of May 10, and Bourgault attributed to Fetsch a
remark that Gibson said anyone going out on Strike
would be fired.9 That point was not fully litigated and
the record is inadequate to support the complaint. So far
as the alleged solicitation is concerned, Bourgault denied
Fetsch's allegations, and Fetsch's testimony was not clear
or convincing. The remark attributed to Bourgault by
Fetsch, "everything would be alright, if I did change my
mind," seemed to have been memorized; the General
Counsel was able to get it out, only after a long series of
leading questions and coaxing. The allegation of solicit-
ing is given no credence. So far as the threat is con-
cerned, Bourgault denied Fetsch's allegation, and Bour-
gault's version of the two conversations is credited; t no
threat in violation of the Act is found.
C. Fetsch's Discharge
Respondent has several production machines, one of
which is referred to as multiple-header No. 61 and is in-
volved in these proceedings.
Fetsch was hired on September 19, 1973, and had a
good record with Respondent until the time of the inci-
dents discussed herein. t No. 61 is an old machine, and
has been a troublesome one for several years. It is sub-
ject to frequent breakdown and repair, and is more diffi-
cult to keep in operation than Respondent's other pro-
duction machines. Although other employees know how
to operate No. 61, and have operated it on a regular
basis, Fetsch has been its principal operator for several
years. Fetsch operates other machines, but keeps his
tools at No. 61 because that is where he usually needs
them. Fetsch has trained other employees to operate ma-
chines, including No. 61, and has worked as a leadman
on a temporary basis. The General Counsel contends,
and Respondent acknowledges, that, prior to the inci-
dents discussed herein, Fetsch has been a diligent and
productive employee, with no discipline of record.
The strike commenced on May 15, and on the preced-
ing Friday, May 11, an incident occurred as Fetsch pre-
pared to go off work at 3:30 p.m. Fetsch was to be off
work on Monday, May 14. Fetsch started operating No.
61 at 7 a.m. on Friday, and stopped the machine at 3:22
p.m.. At approximately I p.m. on that day, the machine
broke down and Fetsch put it back into operable condi-
tion. Thereafter, a different defect developed in No. 61
but Fetsch was able to make proper repairs. Minor ad-
9Gibson credibly testified that Bourgault reported on May 14 to him,
Mull, and Clinton, the two conversations Bourgault had with Fetsch on
May 10.
'° Fetsch testified after his discharge at a Texas employment commis-
sion hearing, but said nothing at that hearing about Bourgault suggesting
that Fetsch sabotaged equipment G.C. Exh 2; Resp. Exh. No. 17.
"' Fetsch took a voluntary layoff of more than a year, in 1975-76
744
HUCK MANUFACTURING COMPANY
justments were due at the end of the day but, since it
was time to quit, Fetsch did not make them. Fetsch went
to Bourgault's desk at the close of the shift, to turn in his
time and production. Fetsch said nothing to Bourgault at
that time, or at any time on May 11, concerning any
problem with No. 61.12 Artie Lewis, a supervisor of
multiple-headers on the second shift, was at Bourgault's
desk when Fetsch arrived. According to Fetsch:
I went back to Paul Bourgault's desk-who is my
foreman-and Artie Lewis-which was another
foreman-they both wished me well; they said, "It's
been nice working with you," and I said, "The
same to you," and I went and punched out and
went home.
Q. Did either-did Mr. Bourgault tell you what
he meant by that statement?
A. No, he just said, "It's been nice working with
you."
Fetsch further testified that, on May 15 or 16, he called a
fellow employee, Ron Threadgill, on the telephone to so-
licit Threadgill's participation in the strike and on the
picket line. Another employee, Gerry Culverhouse, earli-
er had told Fetsch that Bourgault was angry and upset
by the condition in which Fetsch had left No. 61 the
preceding Friday, and Fetsch asked Threadgill about the
matter. Fetsch got the impression during the conversa-
tion that Threadgill believed Fetsch had something to do
with No. 61 not being in proper condition. Fetsch talked
with another employee, Bill Packett, on the telephone
May 15 or 16 and asked him about No. 61. Packett said
something about some trouble with the knife or a bolt in
the machine.
Bourgault testified that, during the afternoon of May
10 or 11, he told A. Lewis about his conversation on
May 10 with Fetsch (discussed supra), wherein he felt
Fetsch had threatened sabotage of No. 61, and suggested
that Lewis check the machine.' 3 Bourgault testified that,
when Fetsch left work on May 11, Lewis was present,
and Bourgault asked, "How's 61?" to which Fetsch re-
plied, "Ready to run," and signaled an "O" with his fin-
gers. As Fetsch left, he shook Lewis' hand and said, "It's
been nice working with you guys."
A. Lewis, who had been a multiple-header machine
operator, including No. 61, for 6-1/2 years and who has
been a supervisor since January 1, 1979, testified that, on
Thursday afternoon, Bourgault told him about the lat-
ter's conversation with Fetsch and that Fetsch had said
something about sabotaging No. 61. Lewis further testi-
fied that, on Friday between 3 and 3:30 p.m., Bourgault
asked him to check No. 61 out, to see if it could be oper-
ated on the night shift. Lewis testified that he was at
Bourgault's desk that Friday evening, when Fetsch was
leaving work, and that Fetsch shook his hand and said,
"Nice working with you." He said Bourgault asked
Fetsch if No. 61 was okay, and Fetsch replied yes. Lewis
12 Fetsch testified that Bourgault had told him, in the past, that No 61
was Fetsch's responsibility, and to report problems to Bourgault only
when necessary.
'3 Bourgault had difficulty remembering whether his suggestion to A
Lewis was on Thursday or Friday, and the record is not clear but. in any
event. Bourgault is credited so far as the suggestion itself is concerned
continued: immediately after Fetsch left at 3:30 p.m. on
Friday, he and an employee named Joey Derting went
directly to No. 61 and found the following: (1) The ma-
chine would not start because it had no oil in it. (2) Oil
was put in, but the machine still would not start and an
electrician was called to the machine. It was discovered
that the cutoff switch, a safety device in a closed box,
had been pulled, contrary to customary practice. (3) The
machine then was jogged, and the shearing knife fell off,
because the screw which held it was completely loose,
which would not be a result of normal operation. Lewis
stated that had never before happened, so far as he
knew, and that, if the machine had been started with the
knife so loosened, it could have fallen between the rim
and the dies and exploded, possibly with serious injuries
resulting. (4) The knockout bar on the fourth punch was
loosened and it fell off, which could happen if the screw
breaks, but he examined the screw, and it was not
broken. Lewis said he never before had seen the knock-
out screw loosened in that manner. (5) It was discovered
that the oil timer had been readjusted to run continuous-
ly rather than to restrict the flow of oil. Thirty gallons
of oil ran into the machine before the problem was locat-
ed. Normal oil consumption was five each hour or 1-1/2
hours.14 Lewis stated that Fetsch left the machine at
3:22 p.m.; that he and Derting were at the machine no
later than 3:35 p.m.; and that he saw no one at the ma-
chine during that brief interval. It took 3 hours to get
No. 61 in operating condition, after which Derting ran it
for the rest of the evening. Lewis stated that, in his opin-
ion, the machine was sabotaged by Fetsch, since the
problems they found would not have been caused by
normal operation. Lewis stated that, since Fetsch was
discharged, No. 61 has been operated continuously, two
shifts per day, except during times of repair and mainte-
nance, and that there have been no extensive repairs.
Fetsch testified that, accidentally, he may have hit the
cutoff switch; that the screw on the knockout bar may
have been loose, but that he did not loosen it: that he
loosened the knife screw, but tightened it back up; that
he did not know what was wrong with the oil distribu-
tion mechanism; that, possibly, someone may have
changed the electric switch; and that, if the oil timer was
off as far as A. Lewis said it was, someone would have
to have changed it intentionally. '5
Discussion
Beyond the fact that the record shows that Fetsch's
work and attitude were satisfactory prior to the advent
of union activity in the plant, Fetsch credibly testified
that he was complimented by Bourgault and other super-
4 Gibson credibly testified that, on May 14. A. Lewis left a note on
his desk, describing what he had found wrong with No 61, and that
L.ewis later gave him an oral report. Gibson said he. Mull, and Clinton
met and decided to discharge Fetsch. because of the seriousness of the
matter Gibson said the three of them considered, but decided against,
criminal prosecution of Fetsch
' Fetsch testified that, in March 1979. Bourgault accused him of sabo-
laging No 61, when a part was broken Bourgault denied accusing
Fetsch on that occasion of sabotage, but testified that he did accuse him
of negligence ourgault is credited This incident is given no weight
745
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
visors on several occasions, and that testimony was not
challenged by Respondent. It is credited.
Fetsch was an active union advocate, but many other
employees also were quite active. Fetsch testified that, at
one time, more than half the employees wore union
badges, and that more than 15 employees distributed
handbills.
It is clear that Fetsch was the principal operator of
No. 61, but it is equally clear that other employees were
capable of running the machine, and did operate it.
Fetsch appeared, as a witness, to exaggerate the com-
plexity of No. 61, and the difficulty of keeping it in oper-
able condition, and he appeared to overestimate the de-
grees to which Respondent placed its faith and reliance
in his operating ability. However, the fact that No. 61
was an "old dog" of a machine, balky and prone to
breakdown, seems to be supported by the record.
Bourgault's testimony to the effect that, on May 10,
Fetsch mentioned the possibility of sabotage, was partial-
ly supported by Fetsch, and is credited.
Fetsch's testimony that, when he left work on May 11,
Bourgault and Lewis stated to him, "It's been nice work-
ing with you," appeared strained and unlikely. Bourgault
and Lewis denied making the statement, and Lewis testi-
fied that the statement was made by Fetsch. Lewis was a
particularly impressive witness, and he and Bourgault are
credited on this point.
A basic question is whether or not No. 61 actually was
sabotaged or tampered with in order to make it at least
temporarily inoperable. That point was laid to rest by
Lewis, in whom reliance is placed as a witness. Fetsch
testified that, although No. 61 was producing defective
parts when he shut it down on May II, he did not ap-
prise Bourgault of that fact; that he reported nothing
about any problem with the machine. Within just a few
minutes, Lewis and Derting found the machine inopera-
ble, with dangerous defects that required 3 hours of cor-
rective work. These defects were described in detail at
hearing by Lewis, and it is clear that the defects were
not the result of unintentional acts. They were too
remote for accidental occurrence, and too numerous to
have occurred inadvertently. Fetsch testified that he vol-
unteered several years ago to operate No. 61 because it
was a "challenge." He said he knew more about the ma-
chine than anyone else in the plant. He said he left it op-
erable when he quit work on May 11. No one was near
the machine between 3:22 and approximately 3:35 p.m.
There are only two reasonable alternatives. Either
Fetsch left the machine inoperable, or Lewis fabricated a
complex and lengthy piece of testimony. The latter is not
likely, not only because Lewis appeared to be telling the
truth, but also because the facts he related were so de-
tailed. It is possible, of course, that a series of unusual
and rare accidents could have occurred to the machine,
but that possibility is remote. They would have to have
occurred at the precise moment Fetsch shut down the
machine, since it was operating when he stopped it. Fi-
nally, the fact that, so far as Fetsch knew, No. 61 would
not be operated until he was on leave and on strike
cannot be ignored. The timing of the defects is suspi-
cious. It is found that, when Fetsch left the machine at
the end of his shift on May 11, No. 61 was inoperable.
Fetsch was told that he was fired for a single cause;
i.e., sabotage to machine No. 61. That sabotage, or at
least Fetsch's negligence, is found as a fact. Fetsch thus
gave ample cause for Respondent to discharge him, and
it was not incumbent upon Respondent to overlook the
matter, only because Fetsch was a union advocate. Fur-
ther, it was not shown that Respondent was out to rid
itself of union sympathizers. More than half the employ-
ees openly displayed union badges, and many of them
openly distributed handbills, yet only Fetsch was dis-
charged. He was not shown to be a leader of the union
movement in the plant, although he was vociferous and
insistent upon the right of employees to organize.
Fetsch's discharge was not a violation of the Act.' 6
Assuming, arguendo, that Fetsch did not make No. 61
inoperable, it is clear that Respondent reasonably be-
lieved that the machine was inoperable because of
Fetsch's actions. That Respondent held such a belief is
shown not only by the credited testimony of Bourgault
and Lewis, but also by Fetsch's testimony relative to his
conversations with Culverhouse and Threadgill on May
15 or 16, discussed supra. Under the facts Respondent
had before it, the only reasonable conclusion it could
reach was that Fetsch had made the machine inoperable.
In such circumstances, Fetsch's discharge was not a vio-
lation of the Act. 1'
The General Counsel argues that Fetsch's situation is
that of an economic striker who was refused reinstate-
ment, because he was fired on May 21, after the strike
was over, rather than on May 11, when the incident oc-
curred. However, the facts indicate otherwise. When the
condition of the machine became known, Fetsch had left
the plant and it was Friday afternoon. Fetsch did not
work on the weekend, or on Monday. Thereafter, Fetsch
was on strike until he returned to the plant on May 21.
He was fired upon his return, effective May 11. Respon-
dent had no opportunity to face Fetsch and tell him why
he was discharged until May 21.
The General Counsel argues that Fetsch was not given
an opportunity to answer the charges, hence the reason
for the discharge was pretextual. However, that infer-
ence is not warranted. Respondent had sound reason to
believe that Fetsch intentionally made No. 61 inopera-
ble'8 and, under the facts it had before it, nothing was to
be gained by arguing whether or not there was some
reason for the machine's defects. Respondent's manage-
ment was angry, both at the time of its discovery of the
defects and at the time Fetsch was fired. Fetsch was
aware of that anger as early as May 15 or 16, and he
knew the alleged reason for the anger. If Fetsch were in-
nocent of any wrongdoing or negligence, it would seem
that he would have got in touch with Bourgault, or some
other supervisor, immediately upon learning from Cul-
verhouse about Respondent's anger, rather than merely
16 Concrete Technology, Inc., 224 NLRB 961 (1976); M Restaurants, In-
corporated, d/b/a TheMandarin, 223 NLRB 725 (1976); Erie Strayer Com-
pany, 213 NLRB 344, 346, fn. 9 (1974).
17 Vaughan Printers, Inc., 196 NLRB 161 (1972); L. B. Woods. L. J.
Reischman, C D. Dofflemeyer & G. W. Eing, d/b/a Breckenridge Gaso-
line Company, 127 NLRB 1462 (1964).
18 Threadgill, a fellow employee, gave Fetsch the impression on May
15 or 19 that he believed Fetsch had made No. 61 inoperable.
746
HUCK MANUFACTURING COMNPANY
calling another employee on the telephone. Certainly he
was on easy speaking terms with Bourgault.
The General Counsel argues that, since Respondent's
maintenance records show no entry for May 11 relating
to No. 61, it must be inferred that nothing was done to
the machine. However, no maintenance or repairs was
effected that day. Resetting switches, changing the oil
flow, and tightening knives do not constitute mainte-
nance or repairs, as those terms customarily are used. To
the contrary, those actions indicate the reason for Re-
spondent's belief that the machine had been tampered
with. Subtle changes in a machine easily can cause its
disruption. Obvious damage would be foolhardy.
The General Counsel argues at some length concern-
ing Fetsch's good record with Respondent. However, as
pointed out by Respondent, that record is acknowledged,
and is not in issue.
The General Counsel also argues at some length con-
cerning Respondent's intense dislike of the Union in gen-
eral, and Fetsch in particular, and quotes several state-
ments attributed by Fetsch to Bourgault. Those state-
ments are discussed supra. However, it is noted that
Fetsch appeared to be hostile toward Bourgault and Re-
spondent, and it is apparent that Bourgault did not wage
a one-sided campaign. Fetsch did not seem cowed by, or
afraid of, Bourgault, and he did not hesitate to speak his
mind when he talked with Bourgault. Further, as noted
above, Fetsch was not alone in supporting the Union, but
there is no evidence that Bourgault was giving any of
the others a hard time because of their union activity.
D. Alleged 8(a)(1) Actions by Mull
Paragraphs 7(a), (b), (h), and (i) of the complaint in
Case 16-CA-8604 allege that, on May 21, Mull threat-
ened and coerced employees, and instituted an illegal
rule.
These allegations arise from a speech Mull gave to
striking employees after they returned to work on May
21. The General Counsel's witnesses contend that Mull
gave a speech that was partially read and partially ad-
libbed, and Respondent's witnesses contend that Mull
read the entire speech,1 9 except for an opening remark,
which is not in issue. The speech was given only to em-
ployees who had been on strike, and was given in the
lunchroom, one in the morning and one in the afternoon.
The employees sat around tables, facing the speaker's
stand. Mull stood behind a dais, with Clinton seated
beside him and to the rear.
Employees Dennis Ayers, James Nitschke, Michael
Denny, and Gerald Wilson, among others, attended the
morning meeting, and employee Orville Chappell, among
others, attended the afternoon meeting. All four employ-
ees testified for the General Counsel, and all of them
stated that Mull made statements that were not read
from the document Mull had with him. However, that
contention is not credited, for several reasons. (1) All
four employees agreed that Mull had his speech with
him, and apparently read from it, at least part of the
time. The employees said Mull occasionally looked up
and made statements, but Mull agreed that, occasionally,
"' The speech is G C Exh 2
he did look up while continuing the speech. Notice is
taken of the fact that speakers commonly carry state-
ments in their mind, and deliver them for effect, while
looking at the audience. Mull and Clinton credibly testi-
fied that Mull did not depart from the written text, and
Clinton stated that he followed the text, with his eyes,
word for word, while Mull spoke. (2) The statements at-
tributed to Mull by the employees as ad-lib statements in
many instances are so similar to the text that the conclu-
sion is invited that they were textual, but remembered
somewhat differently. The employees were under stress
at the time, and were being reprimanded, as discussed
infra. It would be logical for them to remember state-
ments in the context of the meeting, rather than as isolat-
ed statements that were read. Denny put the meeting in
perspective when he testified after reading General
Counsel's Exhibit 2:
I'm sure there was other things said, but they don't
come to mind. I was despondent and depressed, and
felt like I knew most of what was going to be said,
anyway, so I didn't pay that close of attention to it.
In similar vein, Chappell testified:
Q. Do you remember every last word that Mr.
Mull said?
A. No, sir.
Q. Do you recall anything else that Mr. Mull
said, during that talk?
A. I don't remember parts of it.
Q. About any-is your memory exhausted at the
present time, as to what Mr. Mull said during that
talk?
A. Not altogether; I've got some pieces of things
that I remember, but I don't remember that much of
it.
Q. Well, all right. If your memory is-
A. My mind was straying, a little bit.
Q. Pardon me?
A. My mind was straying-started straying a
little bit, while he was talking.
After reading General Counsel's Exhibit 2, Chappell
stated:
A lot of this is similar, but I took it in a different
way.
Q. All right.
A. It may have been that I just looked through
somewheres else, but I don't think so.
On cross-examination, he stated:
Q. Do you remember your testimony just before
that point, that, during the course of the speech,
your mind began to wander and you stopped
paying attention?
A. Right; that is-some of the things that he said
was what got my mind wandering. I was mad about
it.
(3) Ayers testified that Mull remarked that Respondent's
attorney advised him not to depart from the text, but
747
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he intended to depart, anyway. That testimony is
given no credence. First, Ayers was not a convincing
witness. Second, the statement is illogical, and appeared
to be contrived and self-serving. Third, Mull's and Clin-
ton's contrary testimony is credited. Nitschke and Denny
testified to a statement by Mull which was to the same
effect but, as in the case of Ayers, that testimony seemed
unrealistic and unlikely, and is not credited. (4) All em-
ployees testified either that they did not hear, or pay at-
tention to, everything Mull said, and there are numerous
and significant differences among the statements attribut-
ed to Mull by the employees.
It is found that Mull read the speech to the employees,
without departure therefrom except a single opening
statement that is not in controversy. In assessing the
speech, the wording of General Counsel's Exhibit 2, and
no contrary testimony, is considered.
Mull's speech is very strongly worded, and portions
thereof border on intemperate. Mull started the speech
by stating, "Good morning. I guess I should say wel-
come and I'm glad to see you all are back, but I really
can't." He then accused the employees of sabotage, van-
dalism, name calling, intimidations and threats, with "the
backing and support of a mob," and conduct that was
"very disgusting." Possibly those statements were true,
but Mull offered neither to the employees nor to the Ad-
ministrative Law Judge any specific examples of miscon-
duct (other than that of Fetsch), nor is there any evi-
dence that any action was prosecuted. Further, Mull
tarred all employees with the same brush; it seems un-
likely that all employees were guilty of the same acts, if
they were guilty of anything. 20 Mull continued, and
warned the employees that they had better shape up, or
ship out; that nonstrikers were antagonistic to the strik-
ers; that they would have to abide retaliation by non-
strikers; that they must toe the line; and that company
rules thereafter would be strictly enforced. Had miscon-
duct been established, possibly some of what Mull said
could be found protected by the Act as free speech.
However, Respondent's union animus is apparent, 2 ' and
Mull went to considerable length in disparaging employ-
ees and the Union in his speech. Under such circum-
stances, it is clear that the speech was a reprimand to
employees for engaging in a lawful strike, and was coer-
cive. 22 The manner and the tone in which the speech
was given to the strikers were such as to discourage
their protected activity, and would have the effect of
making the employees reluctant to consider any future
strike, whether for economic or for unfair labor practice
reasons.
20 For the proposition that unauthorized acts of violence on the part of
individual strikers are not chargeable to other union members without
proof of participation, see Coroner Casuals. Inc., 207 NLRB 304 (1973)
2' Nitschke's testimony concerning an antiunion speech to employees
in December 1978 by Arthur Ackerman, Respondent's president, was not
denied and is credited Nitschke was credibly corroborated by Denny
22 Our-Way, Inc./Our-Way Machine Shop. Inc., 238 NLRB 209 (1978),
International Union of Operating Engineers. Local 12. AFL-CIO (Office
and Professional Employees International Union. Local 30. AFL-CIO,
CLC), 237 NLRB 1556 (1978). This conclusion is buttressed by the testi-
mony of Denny and Chappell, that they were confused and angry be-
cause of Mull's speech.
The fact that Respondent paid nonstrikers double time
for working on May 14, and triple time for overtime
work that day, while paying strikers straight time and
double time, respectively, for the same day, is not in dis-
pute. Nor is the fact that the extra pay to nonstrikers was
given, as a reward for not striking, in dispute.' Giving
the pay in the manner followed by Respondent was dis-
criminatory, since all employees, both strikers and non-
strikers, worked their regular hours on May 14. Possibly
the conclusion could be different had Respondent estab-
lished any misconduct by the strikers, but no such mis-
conduct was shown, either on May 14 or during the
period of the strike. So far as the record shows, May 14
was an uneventful day at the plant. The strike also was
uneventful, so far as the record shows. The testimony of
Gibson and Mull that there was misconduct by the strik-
ers cannot be accepted as proof, since it was general and
vague, and is not supported by any evidence. The
burden to show justification for the discriminatory wage
payments rested with Respondent, and that burden was
not met. Therefore, the payment of double and triple
time to nonstrikers was discriminatory under the Act, 24
and it necessarily follows that Mull's statement to strik-
ers, that such payment was made, was coercive and a
violation of Section 8(a)(1) of the Act. 2 5 As discussed
above, Mull's speech generally, and this statement of dis-
parate wage payments specifically, would have the effect
of discouraging all strikes by employees, whether for
economic or for unfair labor practice reasons.
Mull's speech included the following statement:
Had you stayed on strike one day longer many of
you would have been permanently replaced and
some of you, today, wouldn't have a job. If you
strike again the replacement job awards will be
made immediately. The three-day posting procedure
will not be followed for the duration of the work
stoppage and new people will be hired to fill the ap-
propriate openings. You are not indispensable, nor
are you irreplaceable. I think you should know that
and I hope you understand that.
That statement is clearly coercive, since it avers that
strikers, whether for economic or for unfair labor prac-
tice reasons, will be permanently replaced, immediately
upon striking. Such a statement violates the Act.25
Mull stated to employees: "We were contacted by the
Food Stamps government office and have challenged
your right to receive food stamps. I'm not sure what the
outcome of that will be." This statement possibly would
not have been coercive but for the surrounding circum-
stances. Mull was angry, and made that fact clear to the
strikers. He was angry because of the strike, and made
that clear too. So far as the record shows, it was a lawful
strike. Lawful strikers may or may not be entitled to
2s Gibson's explanation for the bonus pay is in accord with this state-
mnent, although his explanation, in effect, is based on a solace approach.
z4 This violation is discussed infra.
25 Brown & Connolly. Inc., 237 NLRB 271 (1978); Perko's Inc., 236
NLRB 884 (1978).
2"' Carpenters' District Council of Jacksonvlle, Florida and Viciniry and
.ocal 62
7
, tel l, 221 NLRB 876 (1975).
748
HUCK MANUFACTURING COMPANY
food stamps, but that fact would be of concern to Re-
spondent only in its capacity as a citizen. Here, Mull
made it clear that he challenged the right of strikers to
receive food stamps, solely because of his anger at the
strikers. His challenge to the food stamps was retaliatory,
and dictated by a desire to hurt the strikers; it was not
dictated by a desire to see that the food stamp program
was properly administered. Thus, the statement was not
a harmless one, divorced from Respondent's desire for
revenge; 27 Mull's statement to the strikers was harass-
ment, and violative of Section 8(a)(l) of the Act. 28
E. Alleged Coercion of Employees
Paragraph 7(c) of the complaint in Case 16-CA-8604
alleges that Respondent coerced its employees by paying
nonstrikers double and triple time between May 14 and
18, as an inducement to prevent employees from engag-
ing in a strike.
The fact of disparate wage payments is not in dispute,
as discussed supra. As discussed elsewhere herein, the
disparate payments for work on May 14 was discrimina-
tory under the Act, and telling the strikers about that
payment was coercive under the Act. Finally, there is no
dispute concerning the fact that the increase of wages
given to nonstrikers from May 14 through May 18 was
not discussed with, communicated in advance to, nor
bargained with the Union. To the contrary, the Union
and Respondent during that week in May were still in
the process of negotiating for a contract. Mull and
Gibson acknowledged that the only reason for the in-
crease was to "reward" the nonstrikers, or to repay them
for their period of trial during the strike. A clear failure
to bargain, in violation of Section 8(a)(5) and (1), is
shown. The concurrent interference and coercion alleged
by the General Counsel, on the basis of the effect the
wage increase had on employees' Section 7 rights, is ap-
parent.
F. Alleged Threat by Knott
Paragraphs 7(d) and (e) of the complaint in Case 16-
CA-8604 alleged that, on or about July I I and 18,
Howard Knott, one of Respondent's supervisors, threat-
ened employees with discharge if they engaged in strike
activities, and attributed to the Union Respondent's fail-
ure to grant a wage increase to its employees.
Francis Venable, one of Respondent's employees, testi-
fied that he and other employees, including Dennis
Ayers, talked with Knott on July 11 or 18:
And so, Mr. S. L. Pimpton said-asked him,
"Well, when are we going get another raise; when
are we going to get a raise?" and Leo Knott-Mr.
Knott said it wasn't for him to decide about our
raises. It was because of the Union, that we were
not getting a raise and he also replied that if any-
body walked out, this next time, we would be auto-
27 Wilker Bros. Co., Inc., 236 NLRB 1371 (1978); .VL.R.B. v. Interstate
Engineering, a Division of A-T-O, Inc., 583 F.2d 1087 (91h Cir. 1978).
28 Cf Star Kist Samoa, Inc.. 237 NLRH 238 (1978); Sur -Tin. /In and
Surak Leather Co., 234 NL RB 1187 (1978)
matically terminated. That's when he said; that's
what Mr. Knott said.
Ayers testified, but was not asked about, nor did he tes-
tify concerning, Knott's alleged statements. Knott testi-
fied that he met with a group of employees in July, and
S. L. Pimpton asked, "When are we going to get more
money or do we have to take a walk?" Knott stated:
I told him that the money was not up to me. It
was out of my hands and I also informed them that
if they were to walk again, that some of them could
be replaced.
Q. Was there any other discussion at that meet-
ing, that you can recall?
A. No.
Knott denied that he threatened employees with dis-
charge if they engaged in strike activities, and denied at-
tributing to the Union Respondent's failure to give a
wage increase.
Discussion
Knott was an unusually impressive witness, and his
denial of Venable's testimony is credited. Ayers, who
was present at the conversation, did not testify concern-
ing Knott's alleged remarks.
These allegations of the complaint are not supported
by the record.
G. Alleged Threat by Lewis
Paragraph 7(f) of the complaint in Case 16-CA-8604
alleges that, on or about April 15, Harvey Lewis threat-
ened employees with mass discharge if they engaged in
strike activities.
Denny testified that he talked with Lewis, a ware-
house supervisor, in mid-April:
Well, we talked about the Union for awhile and
I'm not for sure about specifics. I do remember
asking Harvey about what he thought would
happen, if-if we went on strike, and he replied that
we'd all be fired.
Denny testified that he talked with Lewis, who was a
former union organizer and who "spent most of his time
talking down the Union" at the plant, although Lewis
was formerly active in a union organizing campaign at
Respondent's plant, two or three times every night, for a
total of more than 150 times. Denny said the subject of a
strike was frequently discussed by him and Lewis, and
that he did not remember "who or why this particular
conversation got started." On cross-examination, Denny
said, Lewis stated, "Well, you're going to be fired, if you
go on strike."
Lewis denied that he ever told Denny or any other
employee that employees would be discharged if they
went on strike, but said he once told Tommy Wilhite, an
employee who asked what would happen to employees
who went on strike, that they could be replaced.
749
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Discussion
Denny's testimony was too uncertain to provide a
basis for finding a violation of the Act, in the face of
Lewis' credible denial. It seems unlikely that Denny
would remember the specific words spoken by Lewis on
one occasion 9 months past, out of a total of more than
150 occasions when they discussed strikes and the Union.
Denny's testimony on this issue seemed to have been
contrived, and is not credited.
H. Alleged Threat by Gibson
Paragraph 7(g) of the complaint in Case 16-CA-8604
alleges that, on or about June 15, Gibson threatened an
employee that, if employees struck, all of them would be
discharged and would not be reemployed for 3 years.
Denny testified that he went into Gibson's office in
mid-June, to talk about layoff rights of employees, and
that, during the conversation:
I told Mr. Gibson, also, I said, "I can't run the plant
without the people that were on strike" and he indi-
cated that they could meet their production. And
so, I told Mr. Gibson that he may have a chance to
find out again, in a couple of weeks, and, at that, he
became upset and he said that if we did, indeed, go
out on strike again, that we'd all be fired, and that
they would not wait three days to post our jobs this
time. I told Mr. Gibson at that time, that he knew
as well as I did that they couldn't fire us; they
could only replace us. And he responded that if-
that it was the same thing if it took three years to
get your job back.
Denny repeated the conversation on cross-examination in
quite different language, but the meaning was the same.
He said employees and members of management com-
monly talked about the Union, and that his conversation
with Gibson was a friendly one.
Gibson denied telling Denny that employees who
went out on strike would be fired, or that they would be
discharged and would not be employed for 3 years.
Gibson testified that he and Denny argued about Re-
spondent's right to replace striking employees, and that
he told Denny:
"Well, Mike, that's my understanding of the law.
The company has the right to replace striking em-
ployees." And I may have used the word "perma-
nently" replace striking employees and he chal-
lenged that.
He says, "No. There's no way that you can re-
place us permanently." And I conceded then. I said,
"You're right, Mike. There's no way we can re-
place you permanently. We can hire people perma-
nently during that time but when that person leaves
his position or by a job bid to another position or
should he leave our employment, at that time, I do
have to contact that employee that was replaced
and offer him his old job back, if that be a week,
two weeks, two months, six months, three years, I
must contact that employee and offer him his posi-
tion back."
Discussion
As Denny stated during his testimony, conversations
between employees and supervisors concerning union
and strike matters were common. The conversation be-
tween Denny and Gibson was not unusual, and it is clear
that Denny was not fearful of Gibson, or coerced by
him. Gibson was a convincing witness, and his version of
the conversation, which is supported by some of Denny's
testimony, is accepted, as is his denial of portions of
Denny's testimony. Denny made it plain to Gibson that
he disagreed with him, and he obtained Gibson's retrac-
tion of the term "permanently replaced"; Gibson freely
acknowledged that he was wrong in using the word
"permanently." Gibson then went on to explain in detail
to Denny what he meant by "replaced," and his explana-
tion was not in error, nor was it coercive.
This allegation is not supported by the record.
I. Alleged Threat by Gibson
Paragraph 7(j) of the complaint in Case 16-CA-8604
alleges that, on or about February 1, Gibson threatened
an employee by telling him that his brother would not be
hired because the employee was engaged in union activi-
ties.
Chappell testified that he called Gibson on the tele-
phone from his home, in late January or early February,
to ask if Respondent would hire his younger brother, and
Gibson replied that he could not hire him at that time,
but that he would consider it. Chappell said he had the
impression that Gibson would not hire his brother be-
cause Gibson thought Chappell was a troublemaker, like
some others in the plant that Chappell knew about.
Gibson categorically denied the allegation of the com-
plaint, and Chappell's testimony. Gibson testified that
Chappell's brother has had an application on file with
him for 1-1/2 or 2 years, but has not been hired, princi-
pally because of lack of qualifications. Gibson stated that
Chappell called on the telephone about his brother-in-
law, who applied for a job several months ago, and
asked why Gibson did not hire him rather than a Mexi-
can who had been hired. Gibson said Chappell referred
to the Mexican in extremely profane and derogatory
terms. Gibson said he told Chappell that his brother-in-
law had a back problem, and that Chappell's attitude
toward Respondent was so poor and so frequently ex-
pressed that his recommendation concerning an applicant
was not needed. Gibson told Chappell he was not going
to hire his brother-in-law.
Discussion
Chappell was not a convincing witness, and his testi-
mony on this issue is given no credence. Gibson's ver-
sion of the incident is credited. No violation of the Act is
found. It is clear that the brother-in-law was not hired
because of a medical problem and it is equally clear that
Gibson's doubts concerning the value of Chappell's rec-
ommendation were based on sound reasons.
750
HUCK MANUFACTURING COMPANY
J. Alleged Threat vb Knott
Paragraph 7(k) of the complaint in Case 16-CA-8604
alleges that, on or about May 11, Knott threatened an
employee with mass discharges, if the employees en-
gaged in strike activities.
Denny testified that he had a friendly conversation
with Knott on May 11:
And we got into a discussion about the Union, and
I asked Mr. Knott what he felt would happen, if the
employees went on strike and he-he said that the
Company couldn't afford to let the employees run
the Company or control the Company, and that
they'd have to-if we went on strike, I believe he
said, they'd fire us all.
Knott testified that he and Denny exchanged pleasant-
ries on May 11, but that nothing else was said. Knott
denied Denny's allegations, and said he can recall no em-
ployee ever asking him what would happen if the em-
ployees went out on strike.
Discussion
Even though Knott and Denny apparently were on
good terms, the question that Denny allegedly pro-
pounded to Knott seems farfetched. Denny did not
appear to be so naive as to think a supervisor would dis-
close company plans to him. Such a question logically
would have been asked of a union representative, rather
than a member of management. Further, the question
was unnecessary, since commonsense would tell Denny
that Respondent would do all in its power to keep the
plant in operation. Denny would know that not all em-
ployees were in favor of a strike, and that some of them
would continue working. Finally, Denny was equivocal
in his testimony. He testified that he "believed" Knott
said Respondent would "fire us all."
Knott's denial is credited, and no violation of the Act
is found on this issue.
K. Refusal To Pay Strikers the Same As Nonstrikers
for Work on May 14
This allegation of paragraph 8 of the complaint in
Case 16-CA-8604 is discussed supra. The fact of the dis-
parate payment is not in dispute. As discussed above,
Mull and Gibson testified that the extra payment to non-
strikers was made, without negotiation with the Union,
as a reward for working, or as solace for the heckling
and harassment they took from the strikers. However,
Mull made it clear in his speech to employees, that he
was angry about the strike, that he did not welcome the
strikers back to work, and that the strikers were going to
be working at Respondent's sufferance. Mull pointedly
told the strikers about the disparate payment. That piece
of information was not necessary to the job, or to any-
thing else, so far as the strikers were concerned: The
only effect it could have would be to inform the strikers
that their nonstriking fellow employees were being given
a reward because of their taking Respondent's side in the
dispute. That would have the effect of making the strik-
ers reluctant in the future to strike again, which clearly
constitutes interference with, and restraint of, employees
exercising their Section 7 rights, as well as discrimination
because of those employees' union activity. The only
logical manner in which this violation of Section 8(a)(1),
(3), and (5) of the Act can be remedied is to require that
Respondent make whole all strikers who worked May
14, by paying them at the same wage scale that was paid
to nonstrikers.
L. Alleged Violations-Darlene Brinkley
Paragraph 9 of the complaint in Case 16-CA-8604 al-
leges that, between May 14 and May 19, Respondent
failed and refused to award a toolcrib attendant position
to Brinkley, because of her protected activity.
The essential facts concerning this issue are not in dis-
pute. Brinkley bid on the job on May 14, went on strike
May 15, returned from strike on May 21, was informed
by Gibson on May 23 or 24 that the job was awarded to
another employee, and received another toolcrib award
which she wanted on July 2 or 3. After she went to the
new job, Brinkley received three raises within less than 6
months, and was transferred to a different shift, which
she prefers.
Gibson did not testify relative to this issue.
Discussion
The General Counsel did not discuss this issue in his
brief.
It is apparent that Respondent was not antagonistic
toward Brinkley, nor did it retaliate against her in any
manner because she was a striker.
Respondent continued to operate the plant during the
strike and, so far as the record shows, operated it in the
same manner during the strike as at all other times. Thus,
it is inferred that it was necessary for business reasons to
fill the job for which Brinkley had bid during the strike.
The strike was an economic one, thus the job was
available for a new employee, had Respondent desired to
fill it in that manner.
Respondent had no way of knowing whether, or
when, Brinkley would return to work.
Respondent did not violate the Act, as alleged in this
issue.
M. All.eged Failure To Bargain in Good Faith
The complaint in Case 16-CA-8604 alleges several
specific acts as indicia of Respondent's failure to bargain
in good faith, and as violations of Section 8(a)(5) and (I)
of the Act. Those allegations are discussed seriatim
below.
I. Arbitration
Commencing at the March 8 bargaining session, Clin-
ton took the firm position that Respondent rejected the
entire concept of arbitration, and he did not move from
that provision at any time thereafter. On one or two oc-
casions he indicated, in response to Brantley's questions,
that he was willing to "talk about" arbitration, but that
Respondent would not agree under any conditions to an
arbitration provision in a contract. Clinton took the posi-
751
I:)ECISI()NS OF NATIONAL LABOR RELATIONS BOARD
tion at all times during negotiations that Respondent
never had an arbitration clause in 20 years of contracting
with United Automobile Workers, and proposed to the
Union that the work continuation provision in the con-
tract be suspended after the final stage of the grievance
procedure, whereupon the Union could call a strike over
any unresolved grievance. However, Clinton insisted on
withholding from the Union's right to grieve at least two.
major areas of controversy. Those areas were new jobs
(Respondent's proposed art. XII) and group insurance
(Respondent's proposed art. XXV). Brantley, at all times
during negotiations, insisted on a binding arbitration pro-
vision, and contended that Clinton's proposal would
result in excessive friction arising from being required to
engage in many strikes, or forgo grieving. Brantlley testi-
fied that the Union was willing to consider any reason-
able alternative to arbitration, and so advised Clinton,
but that he never received an alternative proposal.
It is clear that both sides had firm positions on the
matter of arbitration, but it is equally clear that Clinton's
proposal effectively stripped the Union of power to
settle grievances. The strike alternative offered by Clin-
ton was no alternative, in effect, and, further, Respon-
dent already has demonstrated that it was adept at han-
dling strikes. The one of May 15 failed within a few
days.
It could be said that this issue was a matter of hard
bargaining, but the entire course of negotiations must be
reviewed, not just portions thereof. Regardless of Re-
spondent's relationship and contract with another union
at other locations, in Waco it was negotiating with
Brantley and his Union. So far as disputes were con-
cerned, Clinton's proposal would put the Union in no
better position than it occupied without a contract. In-
transigence is not necessarily impermissible in negotia-
tions but it may, as in this case, be an indication, with
other indicia, that bargaining is being carried out with no
real intent to reach agreement. It is true that Respondent
cannot be told that it must submit to arbitration, but it is
equally true that it can be told to negotiate in good faith,
with the intent to reach agreement if possible. The key
words are good faith.
2. Wage increases and cost-of-living allowances
Throughout the negotiations, Brantley insisted that
wage increases must be given to employees. Negotiations
were divided into two areas, i.e., those concerning eco-
nomic and noneconomic subjects, but Brantley contend-
ed at all times that no item or items should be imple-
mented separately, that no item should be implemented
until there was a single integrated contract.
The Union's February 9 proposal included a $6 mini-
mum wage with 11-cent increments thereafter. The par-
ties agreed to defer negotiations on economic items until
some resolution had been reached on other issues, and on
April 10 negotiations on economic items were initiated.
The Company's initial position was to maintain the status
quo on all economic items except a shift differential,
which it proposed to increase in its proposal of March 8.
Clinton testified that the shift differential proposal was
designed to resolve the problem of obtaining and retain-
ing qualified employees on the second and third shifts.
Brantley raised the issue of wage increases and cost-of-
living adjustments (COLA), and Clinton responded by
saying it would give no cost-of-living adjustment and no
wage increase, since Respondent wanted to negotiate
wages every year. Respondent also argued that it had al-
ready provided maximum wage increases allowable
under Federal wage guidelines, by giving a 7-percent
wage increase in December 1979. Brantley advised Re-
spondent that exceptions were available under the guide-
lines, but Clinton replied that it would grant no wage in-
crease. During the July 19 negotiations the Union again
raised the issue of a wage increase and COLA, and Re-
spondent replied that it was conducting a wage survey
and would consider a wage increase proposal. On July
23 Clinton sent the following letter to Brantley:
During our last meeting on July 19, 1979, you re-
quested that the Company consider granting a wage
increase to the employees in the bargaining unit. As
you were advised by the Company representatives
during that meeting, the Company has considered
the adjustment of wages.
In view of the fact that our last adjustment for all
of our production and maintenance employees oc-
curred over six months ago, we have decided, in
view of rising inflation which has occurred during
these past six months, to grant a thirty-five (35¢)
cent an hour increase across-the-board to all of
these production and maintenance employees, effec-
tive July 30, 1979.
In the event you desire to discuss these proposed
adjustments, please advise me.
However, a notice to employees, advising them of the in-
crease, was posted at the plant prior to, or approximately
at the same time, when the above letter was written. The
only reasonable conclusion is that Respondent unilateral-
ly decided to, and did, give employees an increase with-
out prior negotiation with the Union, and in the absence
of an impasse in negotiations. There is some conflict in
the testimony as to whether, on July 19, Brantley asked
for a proposal, or for an immediate increase, but in view
of the record of negotiations, it is clear, and found, that
he sought only a proposal. Brantley's undisputed position
at all times was against "piece mealing" implementation
of a contract.
Much testimony was devoted to negotiations concern-
ing a dental plan. From March 8 until July 19, Clinton
and Gibson insisted that Respondent would agree to no
such plan, since it was content with its current insurance
plan. On July 19 the Union was advised that corporate
officials were considering a companywide plan, but Re-
spondent would not agree to the Union's dental proposal.
On November 2 the Company presented the Union with
its dental plan, but the copy was of poor quality and was
not readable. The Union was given a verbal explanation
of the plan and, later, Respondent informed the Union
752
HUCK MANUFACTURING COMPANY
that the plan would remain unchanged, in spite of objec-
tions by the Union.2 9
3. Checkoff of union dues
Brantley insisted, from the outset of negotiations, on a
checkoff provision in the contract. Clinton objected to
such a provision,a3 saying that the I-year period after
which an employee could revoke a checkoff was too
long. The Union later offered to reduce the -year
period, but Respondent replied that it still did not want
such a provision, because employees already were
having so much taken from their checks, for the credit
union, tool repayment, and charity. However, that prob-
lem is not dealt with in Respondent's proposals of April
II and 18. Respondent's proposal of April II, which
Clinton and Gibson testified was made in order to pre-
vent a strike, was not a reasonable one, since it provided
for a 7-day advance notice by employees to retract their
checkoff authorization and, further, the checkoff would
be null and void after I year from signing the contract,
or upon expiration of the contract, or when revoked by
the employee. Because Respondent's proposal was so un-
realistic, it is clear, and found, that it was made in bad
faith, rather than to avoid a strike. Further, Clinton was
not aware of a strike deadline until Brantley called him
on the telephone April 22. The Union later indicated its
willingness, born of frustration, to accept Respondent's
proposal, but was told the offer had heen withdrawn be-
cause of the strike. The inference is strong that the pro-
posal was withdrawn only because the Union agreed to
it.
4. Individual bargaining with employees
In response to Mull's letter to Brantley, dated July 23
and quoted supra, Brantley wrote to Mull on July 25, as
follows:
I am in receipt of your letter dated July 23, 1979,
in which you state that you are going to put into
effect July 30, 1979, a thirty-five cents (35) wage in-
crease to all Production and Maintenance employ-
ees. As you are aware, this is a bargaining issue
which we have been trying to reach a full agree-
ment with you on all matters pertaining to a con-
tract.
It seems to me that this issue should be resolved
along with other issues in dispute at the same time.
The Union does not feel that this is good faith bar-
gaining to piece meal part of the agreements in
effect and leave the other matters in dispute. There-
fore, I highly recommend that we discuss this at our
next meeting which is scheduled for August 3, 1979.
Meanwhile, Respondent posted the following notice to
employees, dated July 24:
29 G C Exh 18 is Mull's letter to Bralltcy concerning the plan Ihe
letter solicits the Union's objections, but none was made, so far a the
record shows.
30 This objection is suspect. Clinton objected to an arbitration pro.i-
sion because Respondent's contract ith United Automobile Workers has
no such provision Yet that same contract has a proision for checkoff of
union dues
NOTICE
Recognizing that inflation is running at or near
double digits, the Company proposes to grant a 35
cent per hour across the board increase for all
Hourly Rated employees effective Monday, July 30,
1979.
This proposal has been forwarded in a letter
dated July 23, 1979 to Mr. L. H. Brantley, Sub-Di-
rector for the United Steelworkers of America at
their Dallas headquarters.
HUCK MANUFACTURING COMPANY
Waco Division
M.F. Mull,
Vice President & General Manager
It is clear from the record, and found, that Mull
posted the foregoing notice to employees prior to receiv-
ing Brantley's letter and, without any prior bargaining
with Brantley, and without giving him an opportunity to
object to the notice prior to its being posted.
The notice seems to indicate that Brantley was given
an opportunity to object to it, but it is clear that Respon-
dent already had decided upon its course of action and
was only notifying the Union, by the letter to Brantley,
what it had decided to do.
Respondent's unilateral notice to employees concern-
ing a proposal that should have been a matter for bar-
gaining between Respondent and the Union was individ-
ual bargaining as alleged, and constituted a violation of
the Act.
5. Unilateral increase-shift differential
The basic facts relevant to this issue are not in dispute.
On February 9 the Union presented Respondent with its
first contract proposal. On March 8 Respondent present-
ed its first proposal to the Union. Negotiations were con-
ducted on March 9 and 26, and on April 10 and I1.
During those sessions proposals of both sides were re-
viewed and discussed in detail, with some minor move-
ment on both sides toward agreement. On April 19 the
Union received, pursuant to its request, Respondent's
final proposal. On April 22 the Union's membership re-
jected Respondent's final proposal, and the strike dead-
line was set for May 15. The parties met on May 14, Re-
spondent refused to modify its final proposal given to the
Union on April 19, and the Union informed Respondent
that the strike would commence on May 15 at 6 a.m.
The Union repeatedly told Respondent that Respondent
could not put into effect, on a "piece meal" basis, any of
the open issues Respondent's final proposal contained its
proposed shift differential. On May 21. the shift differen-
tial proposed by Respondent was put into effect, without
prior notice to the Union. Respondent contends that the
parties were at impasse when the shift differential was
put into effect, hence, that the implementation did not
violate the Act.
There is no indication that the strike was called be-
cause of an impasse, or was ended because of anything
that related to negotiations. The strike was called be-
cause of the Union's desire to put the heat on Respon-
753
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent, and Brantley testified that the strike was not suc-
cessful because of factors unrelated to negotiations. No
progress was made during the sessions of May 22 and
June 5, following the strike's end. It is apparent that the
bitterness resulting from the strike at least was a factor in
that lack of progress.
A basic question is whether or not the parties were at
impasse on May 21. As of that date, the parties had met
on six occasions, but had bargained during only four of
those occasions. During the four sessions there was some
agreement, and a few concessions by both sides, but the
principal differences remained.
The subject of impasse has been considered by the
Board and the courts in many cases, but conclusions in
those cases are based on findings of facts peculiar to
those cases. An outright refusal of one side to negotiate
further on a subject or on several subjects possibly may
create an impasse, at least on some items, but such a situ-
ation may result in an unlawful refusal to bargain. In this
case, there was no refusal to bargain. The parties met,
talked, did some negotiating, made some progress, and
broke up to meet again, on another day. There was no
great difficulty so far as noneconomic matters were con-
cerned, but economic matters, and the specific items dis-
cussed in sections M 1, 2, and 3 above, gave rise to seri-
ous difficulty. Both sides had hard positions, and each in-
dicated to the other that it was standing pat. However,
such a stance is the rule in bargaining, and not the excep-
tion. Of importance is the fact that the parties continued
to meet and negotiate.
The number of sessions prior to May 21, when the
shift differential was put into effect, is not controlling
but, generally, the more meetings, the better the chance
of finding an impasse.3 1 Here, only four bargaining
meetings were held prior to the alleged impasse, and
those were not unusually lengthy sessions. That small
number is of some weight, especially in view of the fact
that none of the sessions was exhaustive. Generally, the
parties went through the proposals one by one, agreed
where they could, and passed the others on until a later
time. The record discloses no instance wherein either
side threw up its hands, figuratively, and said there was a
deadlock and they may as well quit trying. Brantley cre-
dibly testified that he never felt the parties were at an
impasse.
Reviewed as a whole, the record seems to say that Re-
spondent recognized an impasse when it saw one, and
that, even though it did not see one on May 21, it con-
tends that it did. The testimony indicates in many places
that the Union wanted a contract, and invited some com-
promise proposal from Respondent, but that its overtures
were ignored or rebuffed. By delaying meetings, often
taking immovable stands, offering compromises that
were patently unacceptable, and negotiating against,
rather than toward, agreement, Respondent frustrated,
rather than enhanced, the concept of collective bargain-
ing.
However, there is more than the facts of the negotia-
tion sessions. Respondent's general attitude must be taken
into consideration. Nitschke testified, without challenge
" Fetzer llievisioln Inc.v NV.L. R.B., 317 F 2d 420 (6th ir . 9h3)
or denial by Respondent, that Ackerman told the em-
ployees on December 15, just before the election:
. . . "Huck has proved Huck doesn't want a union,
doesn't need a union, and has proved it in the past."
Q. Go ahead.
A. And he also said, "Proved it in the past, that
this year, we have granted a 15 per cent raise, and
the cost of living didn't go up but 14.2," or some-
thing like this. And, he didn't think that Huck
needed a third party to solve their problems. That,
if we'd give them the chance, that Huck would
solve our problems.
Nitschke continued:
And the-also, if the union was voted in, that
they would negotiate in good faith.
Ackermen did not attend any of the negotiation sessions.
Clearly, Respondent from the outset considered unions
unnecessary and undesirable. In the midst of negotia-
tions, as discussed above, just after employees returned
from a lawful strike and on the same day the shift differ-
ential was put into effect, Mull spoke to the strikers in a
severe manner. He disparaged the Union and the strikers;
reprimanded employees for striking; informed employees
that nonstrikers would receive extra pay for work per-
formed on May 14 by nonstrikers and strikers; threatened
future strikers with discharge; and harassed strikers for
striking. That kind of language is not consistent with the
attitude required by the Act for bargaining. Finally, the
shift differential was effectuated the same day as Mull's
speech. Under such circumstances, Respondent's conten-
tion that it believed the parties were at impasse on May
21, after negotiating on only four occasions, is not con-
vincing. If there were a stalemate, as Respondent argues,
it seems apparent that it was caused unilaterally by Re-
spondent, not by mutual failure or refusal to bargain fur-
ther. It is found that, as of May 21, a lawful impasse did
not exist, because of Respondent's bad-faith negotia-
tions,:'2 and that institution of the shift differential was a
violation of Section 8(a)(5) of the Act, as alleged.
6. Individual bargaining
During his speech to returning strikers on May 21,
Mull stated, inter alia:
As I close my talk let me say that I've learned a
lot about people this week, things I knew but didn't
stop to consider as fully as I perhaps should have.
Your strike was a strike for Union Security, not one
to improve your conditions. Mr. Brantley twice said
if you people could hold out and get a union in this
area, it would set a precedent. A precedent for
who-you? I think not. He also said that unless you
:'.2L NL. . . IHerman Sausage (ornpay, Inc. 275 F 2d 229. (5th Cir.
l 0h()) it has lhng been held Ihal bargaining with a ionl. while at the
same time attellmpting tin destro)y the union's ntlaJorlty and undermining its
rcprcscntativc status creates an 8(a)(5) Nilatinon See Skrl DOl ( rarting.
Inci, 245 NIRi 141 (79); .Alherr 1. ldfilhil. d/ha Oldficd llre Suhl,.
221 NlR.K 1275 11)75)
754
HUCK MANUFACTURING COMPANY
decided to back this drive you could get along
without the union-you didn't need them. You, in
my opinion, and that is shared by many people,
were being used by Mr. Brantley and the USW In-
ternational.
In regard to checkoff, we have steadfastly main-
tained that we will not give the Union the kind of
checkoff that is binding for one year because we be-
lieve you should have the right to leave the Union
any time you so choose and not be forced to pay
union dues unless you thought the Union was per-
forming to your satisfaction. He obviously doesn't
want to discuss that issue with you or mention it to
the news media because it, like the precedent that
would be set in the Waco area, shows that the
Union wants, D)UES.
I've had my say, I'm glad it's over, you are re-
turning to your old jobs. You probably feel some
skepticism and will, no doubt, encounter more than
a little hostility. You should expect that. Do your
job, don't provoke.
In view of the rest of Mull's speech, and the cir-
cumstances of the bargaining and the strike, it is ap-
parent that Mull made the above comments in order
to disparage the Union in the eyes of employees,
and to present to the employees, for their consider-
ation and possible action, Respondent's position on
the checkoff dispute. Such action is a violation of
the Act, as alleged. The only proper forum for such
remarks was the negotiation room, with the Union
present.
7. Refusal to negotiate relative to arbitration
The basic facts of this issue are discussed above. Re-
spondent refused even to consider an arbitration clause,
other than to talk about the theory of such a clause, si-
multaneously while proposing that the Union grieve and,
if necessary, strike on grievances and, further, proposing
to limit the grievance procedure by withholding there-
from grievances pertaining to new jobs and group insur-
ance. Possibly insistence on a no-arbitration clause would
not be a violation of the Act. However, coupling that
provision with severe limitations on the right to grieve
would result in a provision that would put the Union in
an untenable position. The Union and the employees
would face the possibility of striking over every griev-
ance, or foregoing all grievances. In either event, the
Union could not protect the rights of employees as it
should be able to. Multiple strikes would be intolerable.
Overlooking grievances could be destructive of employ-
ee rights. Respondent suggested no third alternative.
Further dilution of the grievance procedure, by excising
two large areas therefrom, results in grievance machin-
ery not greatly different from that prevailing without a
contract. There is little doubt, under such circumstances,
that Respondent's refusal to consider an arbitration
clause was motivated by a desire to frustrate, rather than
to foster, the bargaining process. Respondent's proposal
was not a reasonable one, and the Union protested with
an offer of its own. The Union asked Respondent for its
suggestions in order to accommodate Respondent if pos-
sible, but Respondent continued with its unyielding and
unreasonable position. It would make no change in its
proposal, knowing the proposal could stop the process of
negotiation. That is not good-faith bargaining.`3
8. Refusal of information
The Union requested, on various occasions in March
and May, that Respondent give it information relative to
the discharges of employees Fetsch, Benton, and Cle-
ments. The information relative to Benton and Clements
later was given to the Union.
So far as the information relative to Fetsch is con-
cerned, the only issue is whether or not it is legally re-
quired information, since Brantley advised Respondent
that Fetsch's discharge had been referred to the National
Labor Relations Board as an unfair labor practice.34
At the time of the Fetsch request, the Union was the
bargaining representative of Respondent's employees. but
no grievance or arbitration machinery had been agreed
to. Thus, the only recourse the Union had was to bargain
with Respondent, or file an unfair labor practice charge.
Fctsch was fired on May 21, and on May 29 the Union
filed a charge with the National Labor Relations Board.
It is clear that the Union chose to prosecute the matter
through the Board rather than to bargain about it with
Respondent. Thus, the information the Union sought was
pertinent to the charge, not to bargaining. The matter
thus was brought squarely under Board law,," and Re-
spondent was not required to give the information to the
Union.
This allegation is not supported by the record.
9. Limiting term of the contract
This matter was not alleged in the complaint as a vio-
lation of the Act, but is considered, since it was fully liti-
gated. The Union was certified on December 26, 1978, as
the bargaining representative of employees in the unit
described above. From the beginning of negotiations, Re-
spondent insisted on limiting the term of the contract to
the certification anniversary; i.e., December 26, 1979.
The Union initially wanted a 3-year contract, but was
not insistent upon that term, and never agreed to less
than a year. Clinton testified that he wanted to use the
certification date as the contract date in order to permit
negotiations at approximately that time, but that argu-
ment is not convincing, since it would be a simple matter
to extend the contract expiration date to December 1980
or 1981. Rather than do that, Respondent held firmly to
the December 26, 1979, date with the knowledge, and
obvious gratification, that each unsuccessful negotiation
session shortened the time Respondent would have to
contend with the Union. Little that Respondent did
during its negotiations exposed its motive and intent so
clearly as did this matter. Respondent still was insisting
:: J. P .Stc,,ez (Co.. Inr 239 NlRB 738 (178) .San I[abh Elctrrc Ser-
cc. It . 225 NtRB 11)73 (1'7t )
:" Respondent Iold Ir;lntley why Fetsch as discharged. hut refused
iO glC e tIh liion aly) supporting eidence
:' Iniruzn dil C(ompan,. 171 N.RH 1180 (198); General Elhctric
(onpu/an. Aulirl Producl. Capaci;ator Departmenn. 163 NLRB 198
1 lq67)
755
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the same contract expiration date, as of the date of
the last session on November 2. If the parties had signed
a contract then, its duration would have been less than 2
months. That is not good-faith bargaining; this tactic was
transparent, and was aimed straight at the Union's repre-
sentation status. As stated in Insulating Fabricators, Inc.,
Southern Division, 144 NLRB 1325, 1329-30 (1963):
While the expiration of the contract, like its sub-
stantive provisions, is a bargainable issue, a contract
terminable at the will of a party, or a contract for
less than a year to expire at the end of the certifica-
tion year, is normally not one that will give full
force and effect to the Board's certification. Conse-
quently, the Board views insistence upon such a
contract without good reason appearing therefor as
evidencing a lack of good-faith bargaining.
No such "good reason" for the limitation it insisted on
having been established, it is found that Respondent vio-
lated Section 8(a)(5) by its actions described in this issue.
Post-May 21 Negotiations
It is discussed and found, supra, that Respondent was
negotiating in bad faith, and that the parties were not at
impasse as of May 21, when the shift differential was put
into effect.
The record shows a continuation, after May 21, of the
attitude in bargaining that Mull exhibited in his speech to
the strikers. The items of arbitration, wage increases,
cost-of-living allowance, and checkoff remained out-
standing; Respondent refused to budge from its stance on
them, except in a meaningless way, as discussed above.
The Union earnestly attempted to work something out
with Respondent, but had no success. It is quite clear
that Respondent did not want a contract, and did not
want a union in the plant. Even had Respondent finally
permitted itself to be talked into some form of contract,
it would have lasted only until December 26, then the
entire process would have commenced again, possibly
with an interim attempt at refusal to bargain.
Brantley was an unusually convincing witness. He was
low-key, sincere, objective, and appeared to be com-
pletely honest. His testimony is given full credence, and
his version of the negotiation sessions is accepted. It is
apparent that Brantley was concerned with the employ-
ees, and made every effort to obtain for them a satisfac-
tory contract. He pushed for additional negotiation ses-
sions, but got little cooperation from Respondent. The
record shows no credible excuse for the sessions being
dragged out the way they were. The only reasonable
conclusion is that they were dragged out because Re-
spondent did not want to contract with the Union.
The following quotation, from Chevron Oil Company,
Standard Oil Company of Texas Division, 182 NLRB 445,
447 (1970), succinctly and accurately describes the situa-
tion in this case:
Respondent's course of conduct in the negotiations,
particularly when appraised with its other conduct,
elsewhere considered, reflects that it approached
the bargaining table with the attitude of an employ-
er who is unreconciled to his employees' choice of
union representation, who is determined not to sur-
render in any material respect the full freedom he
previously enjoyed to regulate his labor relations
unilaterally, and who has no serious desire to reach
agreement through the peaceful processes of collec-
tive bargaining, except, perhaps, upon a basis which
would subvert the Union's bargaining status.
It is found that, at all times relevant herein, Respon-
dent bargained with the Union in bad faith, as alleged in
the complaint, and that, as of the last negotiation session,
impasse had not been reached.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section 1, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in, and is
engaging in, certain unfair labor practices, in violation of
Section 8(a)(l), (3), and (5) of the Act, it will be recom-
mended that Respondent be ordered to cease and desist
therefrom, and take certain affirmative action designed
and found necessary to effectuate the policies of the Act.
It has been found that, for work performed on May
14, 1979, Respondent paid employees who were on
strike3 6 from May 15 through May 18, 1979, at rates of
pay below those for nonstriking employees who also
worked on May 14. It will be recommended that Re-
spondent make whole all such striking employees who
worked on May 14, by paying them at the same rates of
pay for May 14, given to nonstriking employees who
worked on May 14, with interest thereon to be computed
in the manner prescribed in F. W. Woolworth Company,
90 NLRB 289 (1950), and Florida Steel Corporation, 231
NLRB 651 (1977). ' 7
Having found that Respondent refused to bargain in
good faith with the Union, in violation of Section 8(a)(5)
and (1) of the Act, I shall recommend that it cease and
desist therefrom and, upon request, bargain collectively
with the Union as the exclusive representative of all em-
ployees in the appropriate unit concerning wages, hours,
and other terms and conditions of employment and, if an
understanding is reached, embody such understanding in
a signed agreement."8 In order to insure that the em-
ployees in the appropriate unit will be accorded the ser-
vices of their selected bargaining agent for the period
provided by law, I shall recommend that the initial
period of certification begin on the date Respondent
commences to bargain in good faith with the Union as
i These crmployees are named infra
'' See. generally, IiS Plumbing & flaing Co.. 138 NLRB 716 (1962)
:' It is recommended that the shift differential unilaterally changed by
Respondent remaill as changed, subject to negotiation hby the parties.
756
HUCK MANUFACTURING COMPANY
the recognized bargaining representative in the appropri-
ate unit.3 9
Because of the pervasive and serious nature of the vio-
lations of the Act found herein, a broad remedial order
will be recommended.
It is recommended that all allegations of the complaint
that are not found herein to have been proved be dis-
missed in their entirety.
Upon the basis of the foregoing findings of fact, and
upon the entire record, I hereby make the following:
CONCLUSIONS OF LAW
I. Huck Manufacturing Company is, and at all times
material herein has been, an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. United Steelworkers of America, AFL-CIO, is, and
at all times material herein has been, a labor organization
within the meaning of Section 2(5) of the Act.
3. The following unit is appropriate for purposes of
collective bargaining within the meaning of Section 9(b)
of the Act:
All production and maintenance employees at Re-
spondent's Waco, Texas plant, but excluding all
office and clerical employees, professional and tech-
nical employees, guards, watchmen, and supervisors
as defined in the Act.
4. The Union is, and at all times material herein has
been, the exclusive bargaining representative of all em-
ployees in the appropriate unit described above.
5. Respondent violated Section 8(a)(1) of the Act by:
disparaging striking employees and the Union; repri-
manding employees for engaging in a lawful strike; tell-
ing employees that those who struck on May 15, 1979,
would be paid less for working May 14 than employees
who did not strike; threatening permanently to replace
employees immediately if they engage in a strike; and
harassing employees because they engaged in a lawful
strike.
6. Respondent violated Section 8(a)(3) and (1) of the
Act by paying employees who were on strike from May
15 through May 18, 1979, at rates of pay below those for
nonstriking employees who also worked on May 14.
Those employees are:
Mike Adams
Dennis J. Ayers
Richard Benton
Darlene Brinkley
Robert D. Brown
Artia L. Brown
Billy Brown
Robert Reesing
Tom Ross
Kenneth W. Bolden
Kenneth Ruth
Roy Rutkoski
Ray Salazor
Maximilius Santana
9 King Radio Corporation. Inc.. 172 NLRH 1051 (1968); Mar-JacA
Poultry Compan. Inc., 136 NLRB 785 (1962)
Marie Bolden
Orville E. Chappell
James L. Chism
Gene Claridy
Ben Cunningham
Palmer Collier
William R. Davis
Michael Denny
Mike Dominguez
Vernon Drakes
Norbert Fetsch
Marle Gardy
Billy Grobe
G. T. Hendrix
Dole Huricuf
Rose M. Hughes
Tom Hughes
Wm. E. Keton, Jr.
Aaron Lang
George Lehrmann
Greg Lglehart
Lloyd W. Lowry
Mike Luxfan
George McFarland
John P. McGaugh
Michael J. McGaugh
Leonard McLennan
J. T. McLearaen
Rusty Mashburn
John Henry May
James Meadows
Camille Minns
Tom J. Moore
Jimmie Nitichla
Johnny Northcutt
O. C. Pierce
S. L. Pimpton
Luther Pimpton
David L. Ramos
Jim D. Reed, Jr.
Rick McGaugh
Larry H. Sligel
Michael J. Smith
Rubbie Sterling
Morris L. Stewart
Jack Stone Jr., (W.D.)
Kin Sydow
D. L. Thompson
Frances F. Venable
Ronnie Walker
Johnnie Mae Walker
C. W. Wendt, Jr.
Jerry Wilson III
Robert L. Wright
Ralph T. Andre Edwards
Jimmy Thompson
Bernice Danford
James Hollingsworth
Nino Santane
Charlie Hughes
Bob Barnes
Linda Brewington
Frankie Ingram
Mike Jones
Jack Reed
Mark Tardy
Tom Askin
Mike Saxton
Gary Culverhouse
Dale Herring
David Marshall
Tony Riojas
Tommy Wilhite
Jerald Russel
Jimmy Dickson
Roy Clemons
Gerry Bush
J. E. Hanks
Victor Martin
Donald Campbell
Lonnie Walker
7. Respondent violated Section 8(a)(5) and (1) of the
Act by: failing and refusing to bargain with the Union in
good faith; bargaining directly with employees on mat-
ters subject to collective bargaining; unilaterally imple-
menting portions of its previous offers made during ne-
gotiations with the Union, in the absence of impasse in
negotiations; failing and refusing to negotiate with the
Union on the subject of arbitration; and insisting that any
contract with the Union be for a term of less than I year.
8. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of
the Act.
[Recommended Order omitted from publication.]
757