ITT Henze Valve Service

National Labor Relations Board - Board Decisions

Jun 30, 1967

166 N.L.R.B. 592 (N.L.R.B. 1967)

592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ITT Henze Valve Service, Controls and Instruments
Division , International Telephone and Telegraph
Corporation and United Steelworkers of America,
AFL-CIO. Case 12-CA-3505
June 30, 1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On April 12, 1967, Trial Examiner Owsley Vose
issued his Decision in the above-entitled proceed-
ing, finding that Respondent had engaged in certain
unfair labor practices and recommending that it
cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial Ex-
aminer's Decision. The Trial Examiner also found
that Respondent had not engaged in certain other
unfair labor practices and recommended that such
allegations be dismissed. Thereafter, Respondent
filed exceptions to the Trial Examiner's Decision
and a supporting brief.
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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
brief, and the entire record in this case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner. i
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, and orders
that the Respondent, ITT Henze Valve Service,
Controls and Instruments Division, International
Telephone and Telegraph Corporation, Jackson-
ville, Florida, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.
IT IS FURTHER ORDERED that the complaint be,
and it hereby is, dismissed insofar as it alleges viola-
tions other than those found by the Trial Examiner.
' Respondent contends in its exceptions that the Trial Examiner's
presentation and evaluation of the evidence show prejudice against
Respondent. On the basis of a careful review of the record, we find that
Respondent's allegation of prejudice on the part of the Trial Examiner is
completely without merit
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
OWSLEY VOSE, Trial Examiner: This case heard in
Jacksonville, Florida, on November 29-December 2 and
December 7-9, 1966, pursuant to charges filed on the
preceding April 28, May 20, and June 29, 1966, and a
complaint issued on September 29, 1966, presents the
following questions: (1) whether the Respondent
(hereinafter called the Company), refused to bargain col-
lectively with the Charging Party (hereinafter called the
Union), the certified bargaining representative of its em-
ployees, in violation of Section 8(a)(5) and (1) of the Act;
(2) whether John Gill, the Company's plant manager,
made statements to employees which interfered with,
restrained, or coerced the Company's employees in viola-
tion of Section 8(a)(1) of the Act; (3) whether the
aforesaid alleged unfair labor practices caused the Com-
pany's employees to go out on strike; and (4) whether the
Company terminated certain strikers and refused to rein-
state two others in violation of Section 8(a)(3) and (1) of
the Act.
Upon the entire record, including my observation of
the witnesses, and after due consideration of the briefs
filed by the Company and the Charging Party,' I make
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE COMPANY
The Company, which is engaged in the business of
repairing and servicing of valves in the southeastern part
of the United States, operates out of its plant in Jackson-
ville, Florida. Admittedly, in the year preceding the is-
suance of the complaint the Company received in excess
of $50,000 for services (including the value of parts) per-
formed outside the State of Florida. Upon these facts, I
find that the Company is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that it will
effectuate the policies of the Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America , AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
In my opinion it will be helpful in resolving the issues
raised by the complaint and answers in this case if I set
forth at the outset the entire sequence of the principal
events in this case. In the bargaining meetings, Oakley H.
Mills, a representative of the Union, was normally the
spokesman for the Union's bargaining committee, which
consisted of three employees of the Company, in addition
to Mills. The Company's principal spokesman throughout
the negotiations was Clyde N. Wells, Jr., the Company's
I Although I repeatedly requested counsel for the General Counsel to
file a brief and specified, in part, the matters which I desired to have
discussed, the General Counsel failed to file a brief in this proceeding
166 NLRB No. 65
ITT HENZE VALVE SERVICE 593
attorney. In the bargaining meetings, with rare excep-
tions, Attorney Wells was accompanied by John J. Gill,
plant manager, and Robert Bortnik, the Company's re-
gional sales manager.
B. Sequence of events
January 3, 1966: The Union files with the Board a peti-
tion for certification as the exclusive bargaining represent-
ative of all the Company's production and maintenance
employees, including truckdrivers and installation ser-
vicemen
January 17, 1966: The Union and the Company sign a
stipulation for certification upon consent election provid-
ing for an election to be conducted by the Board on
February 16, 1966, among the above-named categories
of employees.
January 27, 1966: The Company's propaganda cam-
paign against the Union begins.
February 14, 1966: The Company sends its final
preelection letter to its employees.
February 16, 1966: The Union wins the consent elec-
tion, 20 to 1.
February 25, 1966: The Regional Director issues his
certification of representative stating that the Union is the
exclusive bargaining representative of the Company's
employees in the appropriate unit.
March 4, 1966: First bargaining meeting. The Union
submits a proposed contract and explains its provisions.
The Union acquiesces in the Company's request that
noneconomic matters be considered first.
March 16, 1966: Second bargaining meeting. The
Company presents counterproposals on noneconomic
matters and explains them. The Union objects strongly to
the absence of any proposal concerning the checkoff of
union dues and threatens a strike.
March 17, 1966 (Approx.): Pursuant to instructions
from Union Representative Mills, the employees com-
mence ceasing to work overtime. Although the ac-
ceptance of overtime work was optional, normally the
Company had no problem in obtaining sufficient volun-
teers to get its work out.
March 21, 1966: Third bargaining meeting. The
parties discuss provisions dealing with the following:
recognition, nondiscrimination, seniority, and grievance
procedure. The Union stresses its proposals and the
Company urges that the parties concentrate on its coun-
terproposals.
March 22, 1966: Pursuant to instructions from Union
Representative Mills, two of the three employee mem-
bers of the Union's bargaining committee fail to report for
work and, on the next day upon reporting for work, give
as the excuse for their absence that they had been engag-
ing in union business.
March 22, 1966: The Company posts a notice stating
that its policy of taking disciplinary action for unexcused
absenteeism will be enforced.
March 23, 1966: Fourth bargaining meeting. The
Company announces that it will not tolerate absences for
attending to union business. The main topic of discussion
in the bargaining is the grievance procedure. The Union
objects to the provision of the Company's grievance
proposal requiring that all grievances be handled in non-
working hours.
March 25, 1966: Fifth bargaining meeting. The parties
discuss the areas of disagreement between them. The
Company says it will attempt to revise some of its
proposals in an effort to meet some of the Union's objec-
tions and to bring in its revised counterproposals at the
next meeting. The Union suggests resolving some of the
differences at the meeting. The Company asks for revised
proposals from the Union.
April 3, 1966: A number of the employees come in late
at staggered hours. This was done by prearrangement
among the employees, but without the knowledge of
Mills, the union representative.
April 4, 1966: The Company posts notices warning of
discipline "up to and including discharge" for unexcused
tardiness.
April 4, 1966: Sixth bargaining meeting. Federal
Mediator Nathan Kazin attends at request of the Com-
pany. Mr. Kazin is also present at all subsequent bargain-
ing meetings. The Company brings its revised counter-
proposals concerning "Grievance Procedure," "Union
Representation," and "Vacations " The Union charges
the Company with stalling. The Federal mediator is ap-
prised of the areas of agreement and disagreement
between the parties.
April 5, 1966: Charles Stuckey commences encourag-
ing employees to slow down their work and to "mess up"
valves, and himself slows down the operation of his
lathe.2
April 6, 1966: Seventh bargaining meeting. After an
angry attack by the Union upon the Company's position,
Mr. Kazin prevails upon the Company to continue
discussing points of difference between the parties. The
Union objects to the Company's recognition clauses, in-
sisting that the language of the Board's certification was
controlling, and also to the Company's leave-of-absence
provision. The Company agrees to allow a 21-day leave
of absence to one employee per year to attend State or na-
tional conventions of the Union, and offers to submit
counterproposals on these subjects and also on the sub-
ject of safety and health. The Union charges the Com-
pany with being unwilling to meet longer than 2 hours at
a time. The Company offers to continue if anything con-
structive can be accomplished.
April 11, 1966: Eighth bargaining meeting. The Com-
pany presents counterproposals entitled "Certification,"
"Recognition," "Leave of Absence," and "Safety and
Health " The Union objects to the Company's failure to
offer time and one-half for all hours over 8 hours per day.
Plant Manager Gill states that he does not "see anything
wrong with time and a half over eight hours." Company
Attorney Wells then states that "that is at this stage not
a counterproposal."
April 13, 1966: Ninth bargaining meeting. Company
submits its second counterproposals concerning recogni-
tion, leave of absence, and bulletin boards, and tentative
agreement is reached on these subjects.
April 15, 1966: Tenth bargaining meeting. Tentative
agreement is reached on the Company's proposed provi-
sions entitled "Legality of Provisions" and "Complete
Agreement."
2 Although Stuckey himself denied engaging in such conduct, the
testimony of several witnesses and the circumstances of the case as a
whole support this finding.
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
April 21 , 1966: Eleventh bargaining meeting The
Company protests the refusal of employees to work over-
time and announces that it is taking the position that the
employees refusing to work overtime will be treated as
engaging in a partial strike and will be subject to
discharge A letter to this effect is handed to the Union.
The Company presents its second counterproposals
covering "Safety and Health," "Hours of Work." and
"Overtime " No provision is made for time and one-half
over 8 hours. The Union rejects both proposals The
Union submits its first counterproposals to the Com-
pany's counterproposals. The subjects covered are "Past
Privileges" and "Management Prerogatives " The Com-
pany rejects both of the Union's counterproposals.
April 26, 1966 Twelfth bargaining meeting. The Com-
pany presents in typed form its revised provisions regard-
ing "Recognition," "Arbitration," and "Bulletin Boards,"
changed to reflect previous tentative agreements, and
also a revised counterproposal on "Physical Examina-
tions." This latter proposal is at first rejected by the
Union but after being amended to incorporate the
Union's suggestions, the amended proposal is agreed to
by the Union. The Union tenders a written proposal re-
garding wages for the Company's various categories of
employees and demands an answer Plant Manager Gill
states that no money could be offered at that time, adding
that production was down and that the men were respon-
sible for it Wells states that a wage survey is being
prepared, that it has not been completed. and that as of
that time the Company could not offer an increase in
wages When the Company presents an additional para-
graph to be added to its "Recognition" provision, which
had been prepared to meet the Union's objections to the
Company's "Management Rights" provision, the Union
still refuses to agree, asking for a checkoff provision in
return.
April 27, 1966, 8 a.m. Plant Manager (,ill transfers
Ronald Glover from his job as safety valve repairman in
the field to a machinist's position in the shop, attributing
his action to bad work done by Glover's crew for the
Georgia Power Company Gill states to Glover that he
blames Charles Stuckey for putting Glover up to
"sabotaging" the job for the Georgia Power Company.
April 27, 1966, 9.40 a m. The Company posts the fol-
lowing notice on its bulletin board
After arriving at work and punching in. no one is to
leave the premises without the approval of the Plant
Superintendent, the one exception being between the
time of punching out and in during the noonday
break
April 27, 1966 After a discussion during the 15 minute
midmorning break period which ended at 10 a.m., the
Company's employees walk out on strike (with the excep-
tion of the three latest hired employees) and commence
picketing the plant
April 28, 1966 The Union files a charge with the
Board based upon the Company's posting of the April 27
notice, alleging that it had thereby unilaterally changed
working conditions in violation of Section 8(a)(5) and (1)
of the Act.
April 29, 1966. Thirteenth bargaimne meeting The
Union informs the Company that the strike has been
called because of the Company's action in depriving em-
ployees of the right to leave the plant premises during the
midmorning coffee break The Company explains that the
men had been overstaying their leave Mills denied in-
stigating such conduct and said he had no control over the
men. The discussion turns to the Company's "Manage-
ment Rights." "Seniority," and "Grievance Procedure"
provisions. Mills says that the Union might agree to the
"Management Rights" provision if the Company granted
a checkoff of union dues. Wells orally proposes a
checkoff provision provided that it is revocable at will
and would be discontinued altogether whenever the
number of effective checkoff authorizations in the Com-
pany's hands dropped below 50 percent of the number of
employees in the unit. The Union rejects this proposal.
Mills asks Wells if he had any counterproposals regarding
wages. Wells said no, he would counterpropose those
when the economics stage of the negotiations was
reached.
May 2, 1966 The Company's letter dated April 28,
1966, is received by the Union. In a portion of this letter
the Company formally notifies the Union that the em-
ployees had been overstaying their leave on the morning
coffeebreak and for this reason it was posting the
notice(of April 27) "effective immediately."
May I I , 1966: Fourteenth bargaining meeting The
Company offers its second counterproposal on
"Grievance Procedure," which was accepted by the
Union, although it still contained the prohibition against
handling grievances during working hours The Com-
pany's "Seniority" proposal is discussed. The stumbling
block is the provision that disputes over seniority would
not be subject to the grievance procedure or arbitration.
Finally, after the union bargaining committee held a
private caucus, Mills indicates acceptance of the Com-
pany's "Seniority" proposal.
May 12, 1966 to June 14, 1966• The Company notifies
12 of its striking employees by certified mail that they
have been replaced and that they "shall no longer be con-
sidered as an employee of the Company "
May 18, 1966 Fifteenth bargaining meeting. Wells
hands Mills a letter stating that the Company has no
counterproposal on wages to offer at that time, as present
wages fairly compensated employees for the work per-
formed, but adding that a wage survey was in progress
and if it showed individual adjustments were necessary,
counterproposals in this area would be made. The Com-
pany submits a minor modification of its "Management
Rights" proposal and a discussion follows during which
Mills indicates that he is reneging on his previous agree-
ment on the Company's "Seniority" proposal But Mills
states that he would accept the Company's "Seniority"
proposal if it were amended to provide for plantwide se-
niority, and would also accept the Company's "Manage-
ment Rights" and "Continuity of Operations" proposals
if the Company would agree to the checkoff of union
dues. The Company declines
May 25, 1966 Sixteenth bargaining meeting. Attorney
Thomas Larkin steps in as chief union negotiator. After
the parties bring Larkin up to date on the areas of agree-
ment and disagreement, he inquires about the possibility
of a wage increase Wells states that the Company was
not then able to offer a general wage increase, and that if
the wage survey which was being prepared indicated that
individual adjustments were in order, such would be
made. Wells added that due to financial conditions, with
only two or three employees in addition to the top
management staff working, no general increase would be
forthcoming in the immediate future Following a brief
discussion of the Union's insurance and pension
proposals, which were not acceptable to the Company,
and a more thorough discussion of the Company's
ITT HENZE VALVE SERVICE 595
"Safety and Health" proposal, the meeting terminated.
No agreements were reached.
May 31, 1966: Seventeenth bargaining meeting. Lar-
kin questions the Company concerning whether there is
any possibility of the Company's improving its offers re-
garding vacations, holidays, overtime, and wages. Wells
states that the Company hopes to have the wage survey
available soon and would furnish Larkin with a copy. As
to this and the other matters raised by Larkin, Wells
states, the Company's position is unchanged, but, if it
should subsequently conclude that a change was in order,
it would submit further counterproposals. At this point
Larkin states that he saw no sense in continuing further,
and the meeting terminates with the understanding that
either party would contact the other if his position
changed.
June 15, 1966: The Company transmits its wage sur-
vey and checkoff counterproposal to the Union. The
checkoff proposal contained substantially the same con-
ditions which Wells had previously proposed orally; i.e.,
the checkoff was revocable at will and was subject to the
requirement that 50 percent of the unit participate.
July 19, 1966: Eighteenth bargaining meeting. Larkin
notifies the Company that the "revocable at will" and "50
percent participation" requirements of the checkoff coun-
terproposal are not acceptable to the Union and proposes
that the Company consider the Union's usual checkoff
provision, with the condition that it might be revoked
after 6 months rather than a year. The Company declines
this proposal. The Company also declines to change its
position regarding a general wage increase but offers to
furnish a copy of certain job classifications being
prepared by the parent company as soon as it is ready.
August 1, 1966: Employees cease picketing the plant.
August 6, 1966. The Company notifies the Union of its
intention to grant merit wage increases to three returned
first class valve repairmen, one newly hired stainless
valve assembler, and one laborer.
August 24, 1966: The Company notifies the Union of
its intention to grant merit increases to a newly hired
valve assembler and a recalled laid-off valve dismantler.
September 21, 1966: The Company notifies the Union
of its intention to grant merit increases to three valve as-
semblers, one a nonstriker and the other two newly hired
employees.
September 24, 1966: The Company transmits to the
Union its proposal on "Classifications" and "Minimum
Wage Rates." The latter merely set forth the wage scales
then in effect.
November 5, 1966: The Company notifies the Union
of its intention to grant merit increases to three of its
newly hired employees in the lowest wage categories, in-
cluding one who had previously been given a merit in-
crease in August.
C. The Company's Alleged Refusal to Bargain Collec-
tively with the Union in Violation of Section 8(a)(5)
and (1) of the Act
1. Preliminary statement; background
The complaint alleges that the Company violated Sec-
tion 8(a)(5) of the Act by its action on April 27, 1966, in
effecting a change in working conditions (withdrawing the
employees' previous privileges to leave the premises dur-
ing the midmorning break period) without consulting with
the Union and bargaining about the change, and by its
conduct at the bargaining table in submitting predictable
unacceptable proposals to the Union and thereafter in-
flexibly refusing to comprimise such proposals. The latter
conduct, the complaint alleges, was engaged in "with no
intention of entering into any final or binding collective-
bargaining agreement with the Union." These latter al-
legations raise the question of the Company's good faith
throughout the negotiations.3
Essential to reaching any sound conclusions concern-
ing the Company's good faith in the bargaining negotia-
tions is an understanding of the setting in which the col-
lective bargaining took place and the Company's attitude
towards having a union in the plant.
As indicated above, about 10 days after signing the
stipulation for certification upon consent election, the
Company commenced its propaganda campaign against
the Union. On January 27, 1966, Plant Manager Gill read
to all employees a speech in which he stated in part as fol-
lows:
We intend to oppose the Union in this election
because we do not believe that it has anything posi-
tive to offer anyone at Southern Valve. Between now
and the election, the professional organizers will con-
tinue to try to convince you to vote for them. They
can promise anything they think will buy your vote,
but they cannot guarantee to make good on their
promises. The Union did not create your job and it
does not pay your wages. All that a Union can
guarantee is, if elected, it will be able to bargain with
the Company and to ask the Company to make good
on the Union promises. [Emphasis in original exhib-
it. ]
Although the Company would negotiate in good
faith if the Union was elected, the Company would
not have to agree to any Union demand or make any
concession. If the Union insists on trying to make
good on unsound promises and the Company won't
agree, it could result in a strike. Then nobody gains
... you lose, the Company loses and the losses are
never made up
On February I. 1966, Gill read a longer speech to all
the employees in which he stated, among other things
"that if this Union were to get into the plant, the result
might harm you rather than benefit you," attributed pure-
ly selfish motives to the Union in attempting to organize
the employees, saying that its only purpose was to obtain
"a slice out of your paycheck," suggested that the em-
ployees' wages under a union contract would be meas-
ured by those of "the worst employee in the plant, not
the best," and stressed the possibility of the employees'
3 The complaint also alleges that the Company violated Sec 8(a)(5) of
the Act by refusing to meet with the Union at nights and on weekends and
generally limiting meetings to about 2 hours ' duration The basis for this
allegation appears to have been a statement made by Attorney Wells at
the April 6 bargaining meeting at which he stated that he would prefer to
have the bargaining meetings limited to approximately 2 hours because his
experience indicated that nothing constructive was usually accomplished
in longer meetings . Wells did offer to meet longer on this occasion if the
Union thought that further discussion would be beneficial. The record
shows that several meetings lasted longer than 2 hours and that on at least
one occasion the parties met on a Saturday The evidence fails to support
this allegation of the complaint and it is hereby dismissed The further al-
legation of the complaint that the Company violated Sec. 8(a)(5) of the
Act by insisting on negotiating noneconomic matters first is also
dismissed The record shows that the Union acquiesced in the Company's
request in this regard and that the Company at no time actually refused to
discuss economic demands
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
becoming involved in a stake which would not only cost
the employees money, but "could involve a permanent
loss of employment."
On February 3, 1966, Gill read to the employees a se-
ries of questions and answers which again emphasized the
possibility of the employees ' losing their jobs as a result
of being replaced during an economic stake, brought out
certain adverse economic consequences assertedly flow-
ing from union membership and participation in strikes,
and which, in effect, urged voting against the Union even
though the employees may have signed a union authoriza-
tion card. Copies of the document from which Gill was
reading were then handed to the employees , with an in-
vitation to submit any questions in writing
Gill's next step in the Company's propaganda cam-
paign was a speech read to the employees on February 8,
in which he brought out the large number of strikes in
which the Union had engaged in in the past and
reemphasized the employees ' " possible loss of . . em-
ployment as a result of a strike" over economic demands,
resulting from the Company ' s obtaining of permanent
replacements After making numerous other arguments
against union representation, Gill concluded his speech
with a plea for a "no union" vote.
On February 14, 2 days before the election , the Com-
pany released the final broadside in its campaign to defeat
the Union in the election. In the guise of answering cer-
tain " half truths" attributed to the Union (there is no
evidence of any such propagandizing by the Union), the
Company advanced various arguments against union
membership , and again stressed the principal theme of its
whole campaign against the Union-the possibility of
loss of employment due to strikes - and cited , as an ex-
ample, another local concern of similar size whose em-
ployees were then on strike, almost half of whom, Gill
stated, "have lost their jobs."
2. The Company's alleged unilateral action on April 27,
1966
As indicated above, on April 27, the Company posted
on its bulletin board a notice prohibiting the employees
from leaving the plant premises during working hours,
without permission of the foreman, except during the
lunch period . Previously , the employees had been per-
mitted freely to leave the premises during the morning
break period from 9 45 to 10 a.m , and frequently went in
groups to a little store about two blocks from the plant.
There was no consultation with, or notice to, the Union
prior to withdrawing this privilege
The Company contends that in posting the notice it was
merely enforcing a preexisting rule because of abuses by
employees in overstaying the 15-minute break penod and
that it notified the Union before doing so While I agree,
contrary to the testimony of many of the employees, that
some of the employees abused the break period by return-
ing late, I cannot agree, and in fact have found to the con-
4 Attorney Wells testified that he protested to Union Representative
Mills at the April 21 meeting about the men "laying out on the coffee
break " Plant Manager Gill also testified that at some unspecified time be-
fore the notice was posted he spoke to Mills about the men not returning
promptly after the coffeebreak Mills, and also Yarbrough and Stuckey,
who were on the union bargaining committee , testified that in none of the
bargaining meetings up through April 26 had the Company called the
Union's attention to employees abusing the morning break privilege At-
trary, that the Company had previously prohibited the
employees from leaving the premises during the break
period.
The testimony concerning the Company ' s asserted
notification to the Union , although conflicting4 is not to
the point . There is no evidence that the possibility of
discontinuing the leaving of-the-premises privilege (as
distinguished from complaints about the men overstaying
their morning break period ) was ever mentioned to the
Union before the Union received the Company's letter to
the Union dated April 28, which was not received until
May 2. Such notification obviously came too late to ex-
cuse the Company ' s failure to consult the Union before
posting notice on Apnl 27
I find that the Company by withdrawing the em-
ployees' privilege of leaving the premises during the
morning break period without notifying the Union and
giving it an opportunity to bargain collectively about such
a change in working conditions has violated its collective-
bargaining obligations under Section 8(a)(5) of the Act.
Evans Products Company 160 N LRB 1822.
The complaint further alleges that the withdrawal of the
leaving-of- the-premises privilege constituted also a viola-
tion of Section 8(a)(3) of the Act. This point is discussed
below.
3 The Company's alleged lack of good faith in the bar-
gaining negotiations
As indicated above, the complaint alleges that the
Company conducted the negotiations with no intention of
entering into any final or binding collective - bargaining
agreement with the Union and, as one of the specifics, al-
leges that the Company made proposals concerning
management rights, seniority , and dues checkoff which
were predictably unacceptable to the Union and
thereafter inflexibly refused to enter into any compromise
arrangement.
The Company' s management -rights proposal reserved
to the Company in paragraph 2 "sole and exclusive con--
trol" over " the assignment of work or overtime , the right
to ... lay-off, reclassify , upgrade, downgrade , promote,
transfer , discipline, suspend or retire ; ... the right to
combine and /or eliminate job classifications and to
establish new rates of pay therefor . ." Paragraph 4
states that the "exercise of management rights, powers
and authority shall not be subject to any grievance and/or
arbitration procedure provided that the exercise of such
rights, powers and authority are not in violation of the ex-
press terms of this Agreement."
While the final proviso above quoted suggests that it
was not the Company's intention to exclude from any
grievance or arbitration procedures such common sub-
jects of such procedures as layoffs, downgrading, trans-
fers, and disciplinary actions, a reading of the Company's
other counterproposals indicates that this is not true.
Thus, the Company's proposed seniority clause, which
torney Wells' own notes concerning this meeting contain no mention of
this subject Nor does the Company' s letter dated April 21 mention this
subject, although it does discuss the employees' refusal to work overtime
Under all the circumstances I conclude that Wells and Gill were mistaken
as to when they first brought up the subject of the men abusing the morn-
ing break privilege , and find that it was after the notice was posted that the
Company complained to the Union about the men returning late from the
morning break
ITT HENZE VALVE SERVICE
states that " seniority will be considered by the Company
in making promotions , transfers , layoffs, and recalls from
lay-off, provided such factors as skill and ability, ex-
perience , performance , quality of work, conduct, ad-
herence to work rules, attendance , punctuality and other
factors are considered equal ," provides that " Disputes
arising between the parties as to the interpretation and/or
application of this Section shall not be subject to
grievance or arbitration."
When the Union broke off the negotiations on July 19,
the Company was still insisting on retaining "sole and ex-
clusive control" over overtime assignment , layoffs, trans-
fers, downgrading of employees , and suspensions,
without any right on the part of the employees , through
the Union , to question such actions through grievance or
arbitration machinery.
Even after the Union on May 18 proposed agreeing to
the Company' s management- rights and seniority
proposals in return for the Company's agreement to
checkoff union dues , the Company still adhered to its
position that it must have exclusive control over these
matters, without resort to grievance or arbitration
machinery . Respondent ' s insistence upon having exclu-
sive control over layoffs, transfers , suspensions , and the
like, all of which are encompassed within the term "con-
ditions of employment " as to which the Company was
obliged to bargain collectively, and which matters are
commonly covered in collective-bargaining contracts and
made subject to grievance and arbitration machinery,
raises a question as to the sincerity of the Company's
desire to reach any agreement with the Union
Doubts on this score are heightened when the Respond-
ent's counterproposal on the checkoff of union dues is
considered . The Union had made it plain in the negotia-
tions that this was a very important provision to it. Yet
the Respondent proposed that any checkoff arrangement
be made revocable at will, which defeats one of the objec-
tives of a union in seeking a checkoff arrangement, i e.,
that of achieving a degree of stability of membership in
the plant . In addition , the Company proposed that the
moment that the number of valid checkoff authorizations
in the Company's hands fell below 50 percent of the em-
ployees in the unit , the checkoff authorizations executed
by the rest of the employees became invalid . The Com-
pany refused to agree to Attorney Larkin' s compromise
proposal that the checkoff be made irrevocable for 6
months, instead of the year permitted by the Act. Plant
Manager Gill could not recall what reasons he gave for
refusing to agree to the checkoff.
Other events during the bargaining cast doubt on the
Company's good faith in the negotiations . At the April 1 1
bargaining meeting the Union requested the Company to
agree to pay time and a half for all work in excess of 8
hours per day rather than for all over 40 hours per week,
which was the present practice When Plant Manager Gill
replied that he did not " see anything wrong with time and
a half over eight hours ," Attorney Wells, as he testified,
interrupted to say that that was not a company counter-
proposal . Whereupon Union Representative Mills ac-
cused Wells of preventing Gill from making a counter-
proposal . In the caucus of the members of the Company's
bargaining committee which followed, Wells decided that
no such offer should be made Although the Company
submitted a revised counterproposal on "Hours of Work
and Overtime " at the bargaining meeting on April 21, the
Company did not yield to the Union 's request for over-
597
time for over 8 hours ' work per day , but instead reiterated
its original proposal to pay the minimum the law permits,
overtime for all work over 40 hours per week . This was
the position to which the Company adhered throughout
the negotiations.
The inconsistency in the Company' s position at the
bargaining table regarding the adequacy of its wage scales
and its actions at the plant during the strike in raising the
wages of returned strikers and newly hired employees
further indicates that the Company did not entertain a
genuine desire to reach an agreement with the Union. The
Union , in deference to the Company 's request that
noneconomic questions be disposed of first, put off
presenting any wage proposals until the 12th bargaining
meeting on April 26. The Union sought at this time a top
pay for a grade A repairman of $3 per hour and $3.20 per
hour for a grade A machinist . Also proposed by the
Union at this time was a 25 -cent per hour premium for
leadmen . These proposed wage scales were approximate-
ly 25 cents per hour higher than the Company 's present
wage scales.
The Company' s response to this wage proposal at the
April 26 meeting , which was reiterated as late as the July
19 bargaining meeting , was that in the Company' s opinion
its present wage rates , based upon its wage survey and
the low level of production, was sufficient and adequate.
On June 15 the Company submitted to the Union a
copy of the wage survey to which it had been referring
throughout the negotiations , together with an accompany-
ing table setting forth comparisons between its average
rates and the average hourly rates in the Jacksonville
area. This table indicated that the Company's rates were
above the Jacksonville area rates , except in one category,
machinist-welder, in which its rates were 6 cents below
the area average . The wage survey, incidentally, had been
originally prepared in February or March.
On August 5, less than a month after the Company
stated at the 18th bargaining meeting that no general wage
increase could be offered at that time, the Company
started notifying the Union of its intention to grant
"merit" wage increases to its employees . Twelve em-
ployees, in all, were granted these increases in the follow-
ing 3 months , including one employee who in addition to
receiving a "merit" wage was also promoted to a higher
paying job classification, and another who received two
"merit" increases during this period. The increases
granted Bennett Davis, Robert Finlay , and Robert
Nutter , brought their wages up to $3.05 per hour, which
although less than the Union had sought for employees in
their job classifications in its earlier wage proposals,
might have afforded a basis for a compromise had they
been offered to the Union across the bargaining table.
On September 24 the Company finally submitted to the
Union its proposals on wages and job classifications. Its
proposal concerning wages covered minimum wages only
and the highest wage offered in any job classification was
$2.90 per hour . While it is difficult to correlate the Com-
pany's proposed job classifications with the classifica-
tions set forth on a list prepared by the Company on
January 12, 1966, it appears that the Company's proposal
did not offer an increase in any job classification. Cer-
tainly there was nothing on the face of the Company's
wage and job classification proposals to make it evident
to the Union that it was offering an increase in any
minimum wage classification . Needless to say, the Corn-
pany's wage proposal was meaningless insofar as the
308-926 0-70-39
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company's experienced employees were concerned since
they were entitled to be, and were in fact being, paid at
above the minimum wage rate. The Company's wage and
classification proposals made no provision for the posi-
tion of machinist-welder, the one existing position which
the Company's wage survey showed to be underpaid ac-
cording to area standards. This, notwithstanding the
Company's repeated offers to correct any individual
maladjustments in wages revealed by its wage survey.
Not only did the Company not offer anything at all to
the Union with respect to wages in the course of the long
negotiations , but with one minor exceptions the Com-
pany at no time in the bargaining offered any concessions
of an economic nature, although the Union indicated that
if it received something of substance in return it would
agree to company proposals which severely restricted the
scope of its legitimate activities on behalf of the em-
ployees, such as the Company's management-rights and
seniority proposals.
While the duty to bargain collectively imposed by Sec-
tion 8 (a)(5) of the Act does not require the making of con-
cessions of any kind, the failure of an employer to offer
any economic concessions may cast light on the question
whether the employer is participating in the negotiations
with the good faith which the Act requires As has been
aptly stated by the Court of Appeals for the Fifth Circuit
in an early case, Globe Cotton Mills v. N.L.R.B , 103
F.2d 91, 94, and reaffirmed in a more recent decision
N.L.R.B. v. Herman Sausage Company, 275 F.2d 229,
231, "there is a duty on both sides, though difficult of
legal enforcement, to enter into discussion with an open
and fair mind, and a sincere purpose to find a basis of
agreement...." Or, as stated by the Supreme Court in
N.L.R.B. v. Insurance Agents' International Union, 361
U.S. 477, 488, "the policy of Congress is to impose a mu-
tual duty upon the parties to confer in good faith with a
desire to reach agreement...." The multitude of cases
before the Board and the Courts dealing with the duty to
bargain collectively in good faith, as the Supreme Court
further stated, are "concerned with insuring that the
parties approach the bargaining table with the attitude."
(361 U.S. at 488.)
Upon all of the facts of this case I conclude that the
Company from the beginning did not approach the bar-
gaining table with a genuine desire to find a basis for
agreement with the Union. In reaching this conclusion I
am not unmindful of the fact that the Company not in-
frequently modified its proposals on noneconomic mat-
ters in response to objections. But despite many meetings
and a large amount of paper shuffling on the Company's
part - the submission and resubmission of revised coun-
terproposals- the Company's basic position changed
very little. Nor am I disregarding the fact that during the
negotiations some of the employees were subjecting the
Company to harassing tactics, such as engaging in con-
certed refusals to work overtime, being absent or late for
work, that Charles Stuckey engaged in a slowdown and
encouraged others to do the same, and that the Company
had reason to believe that Ronald Glover and two other
employees on his repair crew had sabotaged certain
repair jobs. However, as the Supreme Court has held, the
resort to such "unjustifiable" and "abusive" economic
weapons is not inconsistent with bargaining collectively
in good faith. N.L.R.B. v. Insurance Agents' Interna-
tional Union, 361 U.S. 477.
As indicated above, I conclude upon the totality of the
Company's conduct in this case that it did not at any time
enter into the negotiations with an open mind and a sin-
cere purpose to find a basis for agreement with the Union.
To sum up, the Company was strongly opposed to having
a union in the plant in the first place. Its propaganda cam-
paign against the Union during the preelection period,
although conducted within the letter of the law, leaves no
doubt on this score. The Company insisted throughout
the negotiations on retaining sole and exclusive control
over many aspects of the employer-employee relationship
which are normally covered by the collective-bargaining
contract, subject to grievance and arbitration procedures.
Although the Union offered to yield on numerous of the
Company's restrictive proposals as a quid pro quo for a
checkoff provision, the Company steadfastly refused to
agree to any meaningful checkoff provision. The Com-
pany apparently gave no explanation for its position in
this regard. The Company inflexibly refused to grant time
and a half after 8 hours even though Plant Manager Gill
could see nothing wrong with such a proposal. The Com-
pany's action in raising the wages of employees working
during the strike was wholly inconsistent with the posi-
tion taken by it at the bargaining table that its wage scale
was adequate. In addition, the Company ignored the
Union completely in the midst of the negotiations in uni-
laterally withdrawing the employees' privilege of leaving
the premises during the morning break period. Ac-
cordingly, I find that the Company has violated its duty
to bargain collectively in good faith with the Union.
D. The Company' s Discrimination against Employees
in Violation of Section 8(a)(3) and (1) of the Act
1. The unfair labor practice strike
The complaint alleges that certain employees of the
Company went out on strike on April 27 and that the
strike was caused and prolonged by the Company's unfair
labor practices.
As found above, within 20 minutes after the Company
posted the notice prohibiting the employees from leaving
the premises during the morning break period without
permission from the foreman, the employees, all except
three, after discussing the new rule among themselves de-
cided to, and did, walk out of the plant on strike. Nu-
merous employees testified to the effect that the com-
pany's posting of the notice was discussed among the em-
ployees at the meeting immediately before the strike and
that they felt that this was the latest in a series of
harassing steps taken by the Company against the em-
ployees and should be protested by a strike. When
questioned concerning the reasons for the strike the em-
5 At the May 3l meeting the Union sought to have included in the
"Safety and Health" provision the requirement that the Company supply
reissues of safety equipment, such as shoes and prescription glasses For-
merly, the Company had issued replacements for such safety items or-
ginally furnished by the Company, but had discontinued the practice prior
to the commencement of the negotiations At this meeting Wells indicated
the Company's willingness to replace such items, provided the Company
had the option of determining whether the equipment had worn out
through ordinary wear and tear or because of the employees' negligence
While Attorney Larkin was amenable to this proposal, the two employee
members of the union bargaining committee refused to agree
ITT HENZE VALVE SERVICE
ployees testified almost uniformly that it was the posting
of the notice on April 27 which precipitated the strike and
that a contributing factor was the feeling of the men that
the Company was stalling in the bargaining negotiations.
Upon all the evidence I conclude that the posting of the
notice on April 27 forbidding employees from leaving the
premises during the morning break period was the pre-
cipitating factor in causing the strike that day.
The Company contends that this conclusion is not war-
ranted in view of certain testimony indicating that the
strike was planned before the notice was posted. While I
am convinced that some of the employees had made up
their minds before the posting of the notice that the time
was ripe for a strike, I am not persuaded that the em-
ployees as a whole had reached any understanding as to
the timing of the strike. In any event, since, as I have
found, the posting of the notice of April 27 was the
precipitating factor in the strike, it is immaterial that some
of the employees may have previously decided that a
strike should be called to strengthen the Union's position
in the bargaining negotiations.
Since, as found above, the Company's posting of the
notice of April 27 constituted unilateral action regarding
a matter about which the Company was obliged to bar-
gain collectively with the Union, and therefore an unfair
labor practice in violation of Section 8(a)(5) of the Act,
the strike was an unfair labor practice strike, and I so
find.
2. The Company's refusal to reinstate George Douglas
and Jimmy Horne
On May 20 Douglas and Horne went into the plant and
asked Plant Manager Gill whether they could have their
jobs back. Douglas had previously been sent a termina-
tion letter dated May 12. Gill told Douglas that he had no
further use for him, as he had been replaced by a qualified
man, and stated that he could not understand why
Douglas was on company property.
Gill then turned to Horne, one of the machinists, and
told him, "we have replaced 5 men ... but we are going
to take the machinists that want to come, back to work."
Gill then gave Horne an application-for-employment
form and told him he would have to fill it out before he
could come back to work. Horne asked Gill whether he
would be "hired in" at his previous rate of pay. Gill said
that he would. When Horne inquired whether he would
have his seniority, Gill replied that he would not promise
Horne anything Gill then asked when Horne would
return to work. Horne said he would let Gill know the fol-
lowing Monday. On Monday, Horne told Gill that under
the circumstances he would not return to work. Gill told
Horne that he had better make up his mind, as he was
going to start replacing the rest of the strikers.
In August Horne received a telephone call from
Foreman Ellis, who asked Horne if he wanted to return
to work. In response to this call Horne went out to the
plant and discussed the matter with Ellis and Gill. To
Horne's inquiry whether he would get his vacation, Gill
replied that he would promise him nothing but he added
that the rest of the returned strikers were going to get
their vacations. Gill also mentioned that the other
returned strikers had received merit raises since their
6 However, in this case, unlike the Mastro Plastics case in which un-
conditional applications for reinstatement had been made by all the
599
return to work and that he might qualify for a merit raise
30 days after his return to work. Horne did not return to
work.
At the hearing in this case on December 2, 1966, the
Company in the presence of Horne, offered him full and
unconditional reinstatement without prejudice to his
seniority or other rights and privileges.
3. The Company's termination of replaced strikers
As indicated above, on various dates between May 12
and June 14 the Company sent termination letters to the
strikers whose jobs had been filled while they were out on
strike, The employees to whom the letters were sent are
as follows: Kenneth Cooney, George Douglas, Ronald
Glover, Lawrence Godsey, Danny Horne, James
Hutchinson, Johnnie Lynes, Jr., Willie Mobley, Herbert
Nolan, Thomas Sims, Charles Stuckey, and Bobby Yar-
brough. The text of the letters was the same in each case,
as follows:
We regret to inform you that your job classification
has been filled by a qualified applicant during strike
conditions. Consequently we have no alternative but
to terminate your insurance coverage and other
Company benefits, effective immediately, as you
shall no longer be considered as an employee of this
Company.
4. Conclusions concerning the Company's violations of
Section 8(a)(3) and (1) of the Act
Since the strike was an unfair labor practice strike, the
Company was obligated to offer full reinstatement to the
strikers, without prejudice to their seniority and other
rights and privileges , upon their applying unconditionally
to return to work . Mastro Plastics Corp v. N.L.R.B., 350
U.S. 270, 278; N.L.R.B. v. Dell, f/a Waycross Machine
Shop 283 F .2d 733, 741 (C.A. 5). As found above, the
Company flatly refused Douglas' unconditional applica-
tion for reinstatement . In the case of Jimmy Horne, the
Company conditioned his return to work upon his filling
out an application as a new employee and refused to as-
sure him that his seniority rights would " be restored to
him. Such a conditional offer of reinstatement to Horne
did not fulfill the Company ' s obligations under Section
8(a)(3) of the Act and constituted in law a refusal to rein-
state. Quality Limestone Products Inc., 153 NLRB 1009,
1012 (Meyers ). The Company ' s refusal to reinstate
George Douglas and Jimmy Horne violated Section
8(a)(3) and ( 1) of the Act.
The Company 's termination of the replaced strikers
constituted a further violation of Section 8(a)(3) and (1)
of the Act . Here , as in the Mastro Plastics case, the strike
having been caused by the Company ' s unfair labor prac-
tices, "the striking employees do not lose their status and
are entitled to reinstatement with back pay , even if
replacements for them have been made" (350 U.S. at
278). The Company by sending the letters to the 12
replaced strikers , effected the termination of the strikers'
employee status, and thereby discriminated against them
in violation of Section 8(a)(3) and (I) of the Act.'
The complaint alleges that the Company ' s action on
April 27 in withdrawing the employees ' privilege of leav-
stnkers, no backpay will accrue until the strikers seek unconditionally to
return to work.
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing the premises during the morning break period also
violated Section 8(a)(3) and (1) of the Act. There is no
question but that the withdrawal of such a preexisting
privilege constitutes an act of discrimination within the
meaning of Section 8(a)(3). The question remains
whether the Company's action in this regard was taken
for antiunion reasons so as to bring it within the scope of
Section 8(a)(1). The Company contends that the notice in
effect withdrawing the privileges was posted in an effort
to end the employees' practice of returning late from the
morning break period.
Various factors lead me to reject the Company's con-
tention in this regard. Light on the Company's motives in
putting the new prohibition into effect is shed by a con-
versation between employee James Armstrong and
Foreman Ellis, which occurred a few days after the strike
had begun. Armstrong testified that during this conversa-
tion, which was over the telephone, Ellis informed him
that Plant Manager Gill had told Ellis that he (Gill)
thought "that the men were going out during the coffee
break to call Mr. Mills, the union representative, concern-
ing the grievances that had occurred that morning." Ellis
was unable to recall having any such telephone conversa-
tions with Armstrong and denied making some of the
statements attributed to him by Armstrong. Ellis was not
questioned about Gill's asserted statement about the men
calling Mills during the break period. Nor was Gill
questioned about this subject. Armstrong impressed me
as a witness with a good recollection who was sincerely
trying to tell the truth. I credit Armstrong's testimony.
It is not disputed that among the five principal offend-
ers with respect to returning late after the morning break
period were three of the main union leaders, Yarbrough,
Stuckey, and Jimmy Horne.
Unlike the previous notices posted by the Company re-
garding absenteeism and tardiness, which merely warned
of disciplinary action in the event of future abuses, the
notice of April 27 did not even mention the employee
abuse which assertedly prompted the posting of the April
27 notice- the overstaying of the morning break
period- but merely announced that forthwith the em-
ployees were not to leave the premises without permis-
sion, except during the noonday break. And Gill admitted
that the previous notices had been effective in correcting
the abuses which had lead to their posting.
Under all the circumstances, I conclude that the Com-
pany in posting the notice of April 27 was motivated in
large measure by a desire to prevent the employees from
communicating with their union representative, a legiti-
mate union activity, and that discrimination engaged in
for such reasons is violative of Section 8(a)(3) and (1) of
the Act.
E. The Company's Alleged Acts of Interference,
Restraint, and Coercion in Violation of Section 8(a)(1)
of the Act
The complaint alleges that various statements made by
Plant Manager Gill to employees interfered with,
restrained, and coerced employees in violation of Section
8(a)(1) of the Act. The testimony of Bennett Davis and
John Hopper to the effect that "we'll get more out of
IT&T than we would get out of the Union," which was
apparently adduced in support of paragraph 6(a) of the
complaint, does not support a finding of an independent
violation of Section 8(a)(1) of the Act. This allegation of
the complaint is hereby dismissed.
Paragraph 6(b) of the complaint alleges that Gill told an
employee that "the employees might as well hit the bricks
if the contract proposals of Respondent were not ac-
cepted." Charles Stuckey testified that Gill came to him
back at the welding booth soon after the negotiations
started and, after commenting "that he didn't inderstand
how that we could vote the Union in to the shop after the
Company had passed out their campaign literature,"
stated "that if the men did not like the contract that the
Company was going to present, that they could hit the
brick." Gill testified that he stated to the union bargaining
committee at one of the bargaining meetings that "if a
strike is ever called, Mr. Mills, in this plant- or, to use
your expression, hit the bricks- you are responsible for
putting these men on the street. It is not us. Because we
are bargaining in good faith." I credit Gill's version. And
even under Stuckey's version, no unfair labor practice is
proven. The allegation of paragraph 6(b) of the complaint
is hereby dismissed.
Herbert Nolan testified in support of paragraph 6(c) of
the complaint, that at the beginning of the negotiations
Gill stated to him, Foreman Ellis, and Mr. Smith, the
salesman, and perhaps two other employees as follows:
... that the union could take or leave the Company's
offer- that the only thing the union could do would
be to strike, if they ... didn't take what the Com-
pany had offered ; and that, as far as he was con-
cerned, his money was in IT&T, a much larger con-
cern than the Southern Valve, . and that this
Southern Valve didn't amount to a hill of beans, as
far as IT&T was concerned . . this plant could be
closed down, and the loss could be absorbed by
IT&T without hurting any of the stockholders ... it
didn't make any difference to him, whether the plant
was closed or not- whether there was a contract
signed. That he had sold out to IT&T.
Gill denied making any such statement. Nolan appeared
to be testifying candidly and his version contains suffi-
cient details regarding matters with which he would not
normally be familiar to convince me that Nolan's
testimony should be credited By threatening, in effect,
that IT&T might close the plant in the event of a strike,
the Company has engaged in interference, restraint, and
coercion in violation of Section 8(a)(1) of the Act.
Paragraph 6(e) of the complaint' alleges that Gill in
mid-April told an employee, when settling an overtime
claim, that the matter would not have come up if the
Union had not come in, and that the employee would
have been better off if they had been left alone and the
Company able to institute the IT&T benefit program.
Nolan testified that he had a conversation with Gill the
first half of April in which Gill agreed that he had a
"legitimate gripe" about overtime. Nolan's testimony
about this conversation continues as follows:
' Par 6 (d) alleging that Gill told an employee that he was not going to
agree to anything except what he wanted to was stricken at the hearing
upon the Company 's motion for failure to state a violation of the Act
ITT HENZE VALVE SERVICE 601
... he says, "Well, you know, all this would have
been straightened out if the union hadn't of come in."
He said that IT&T had done a survey here, and that
they had drawn up a package, which would bring this
plant- the Jacksonville plant- up to the standards
of the other IT&T plants.
And he said part of this package would include over-
time after eight, which would have absolved the
problem that we were having at that time... .
And he said that this package had other benefits- I
don't recall exactly what they were- whether it
was- but I do recall one specific item; he said that
he wasn't surprised with some of the things he had
found out himself, in relation to the Jacksonville
plant and the other IT&T plants, and the additions
that would be here, when it was brought up to- or if
it was brought up to IT&T standards... .
He said that the men in the shop would have been a
lot better off if they had not brought the union in, and
that the company could have done a lot more for the
men than the union could- although he didn't say
what the union was going to do for the men, or could
do for the men, at that time.
Gill denied making these statements . For the reasons
above stated I credited Nolan's testimony . Gill's state-
ment to the effect that the employees would have
received time and one -half after 8 hours and would other-
wise have fared better without the Union had definite
coercive implications and violated Section 8 ( a)(1) of the
Act.
Paragraph 6(f) of the complaint containing substantially
the same allegations as paragraph 6(d) fails to state a
violation of Section 8(a)(1) of the Act and is hereby
dismissed.
James Armstrong testified respecting the allegations of
paragraph 6(g) of the complaint as follows:
Mr. Gill said, first , that there wouldn't be but,
possibly, five men ever come back to the shop to
work; and he told me that , if I wanted to come back
any time, and that he 'd be glad to have me if my posi-
tion was not filled, and the job- excuse me- the job
I had not filled , he'd put me back on , and he thought
I done good work while I was on the road.
And when he went right back and said that, if any
man come back to apply for work, and his job hadn't
been filled, that he would put him on ....
And he said - he went on to say that he'd figure in a
year's time , he'd have a whole group of men trained,
to replace every man- if they weren't back, he'd
replace them. And, in a year 's time- and he told me
that , if he lost ,$5000 a month , it wouldn 't hurt the
company a bit on this training program.
Gill admitted telling Armstrong the first part of the last
paragraph quoted above but denied saying the last part,
about $5,000 a month . Disregarding the last part of the
above-quoted statement , the rest of the statement as a
whole constitutes a threat permanently to replace the
strikers . The normal tendency of such a threat would be
to coerce employees into abandoning the strike, a pro-
tected concerted activity. In view of the fact that the
strike was caused by the Company's unfair labor prac-
tices, as found above, the Company could not lawfully
threaten the permanent replacement of the strikers, and
the Company's action in this regard violated Section
8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. All production and maintenance employees, includ-
ing truckdrivers and installation servicemen, employed at
the Respondent's plant at 4133 North Canal Street,
Jacksonville, Florida, excluding office clerical em-
ployees, salesmen, guards and supervisors as defined in
the Act, constitute a unit appropriate for the purpose of
collective bargaining within the meaning of Section 9(b)
of the Act.
2. On and at all times since February 25, 1966, United
Steelworkers of America, AFL-CIO, has been the exclu-
sive bargaining representative of the employees in the
aforesaid collective-bargaining unit.
3. By refusing on and after March 4, 1966, to bargain
collectively in good faith with United Steelworkers of
America, AFL-CIO, as the exclusive bargaining
representative of the employees in an appropriate bar-
gaining unit, the Respondent has engaged in unfair labor
practices in violation of Section 8(a)(5) and (1) of the Act.
4. By unilaterally withdrawing the employees'
privilege of leaving the plant premises during the morning
break period, the Respondent has engaged in a further un-
fair labor practice in violation of Section 8(a)(5) and (1) of
the Act.
5. By refusing to reinstate George Douglas and Jimmy
Horne on May 20, 1966, and by terminating'the employ-
ment of Kenneth Cooney, George Douglas, Ronald
Glover, Lawrence Godsey, Danny Horne, James
Hutchinson, Johnnie Lynes, Jr, Willie Mobley, Herbert
Nolan, Thomas Sims, Charles Stuckey, and Bobby Yar-
brough, and by withdrawing the employees' privilege of
leaving the premises during the morning break period, the
Respondent has discriminated in regard to the hire,
tenure, and conditions of employment of its employees,
thereby discouraging membership in the Union, in viola-
tion of Section 8(a)(3) and (1) of the Act.
6. By threatening that the plant might be closed in the
event of a strike and permanently to replace unfair labor
practice strikers, and by stating that employees would
receive greater employee benefits without a union, the
Respondent has interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in
Section 7 of the Act, thereby violating Section 8(a)(1) of
the Act.
THE REMEDY
Having found that the Respondent has engaged in un-
fair labor practices, my Recommended Order will direct
that the Respondent cease and desist therefrom and take
certain affirmative action to effectuate the policies of the
Act, including bargaining collectively with the Union,
upon request, and to restore, if it has not already done so,
the employees' privilege of leaving the plant premises
during the midmorning break period.
I have found that on May 20, 1966, the Respondent
unlawfully refused reinstatement to George Douglas and
Jimmy Horne, who had unconditionally offered to return
to work after a strike caused by the Respondent's unfair
labor practices. Subsequently, at the hearing, the Re-
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent unconditionally offered Horne reinstatement.
My Recommended Order will provide that the Company
offer immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his
seniority and other rights and privileges. to Douglas, and
that the Respondent make both Douglas and Horne
whole for their losses resulting from the Respondent's
refusal to reinstate them , by payment to each of them of
the sum of money which he normally would have earned
as wages from May 20, 1966, the date on which they ap-
plied for reinstatement, until the date on which they are
or were offered unconditional reinstatement In the case
of Horne, who was unconditionally offered reinstatement
at the hearing on December 2, 1966, his backpay period
will terminate on this date With respect to the striking
employees whom the Respondent terminated, my Rec-
ommended Order will similarly require the Respond-
ent to offer them immediate and full reinstatement to
their former or substantially equivalent positions,
dismissing if necessary, any replacements hired, and that
the Respondent make them whole for any loss of pay they
may have suffered or may suffer as a result of any refusal
on the Respondent's part to grant an unconditional appli-
cation for reinstatement Regarding the remaining striking
employees, my Recommended Order will provide that
the Company offer them, upon application, immediate
and full reinstatement to their former or substantially
equivalent positions, dismissing replacements if necessa-
ry, and that the Respondent make them whole for any
loss of pay they may have suffered by reason of the
Respondent's refusal, if any, to reinstate them Backpay
shall be computed on a quarterly basis and shall include
interest at 6 percent per annum, as pros ided in F W
Woolworth Company, 90 NLRB 289, and I sia Plumbing
& Heating Co , 138 N LRB 716
Upon the foregoing findings and conclusions and the
entire record, and pursuant to Section lore) of the Act,
there is hereby issued the following
RECOMMENDED ORDER
The Respondent , ITT Henze Valve Service. Controls
and Instruments Division. International I'elephone and
Telegraph Corporation, Jacksonville , Florida , its officers,
agents , successors , and assigns, shall
I Cease and desist from
(a) Threatening permanently to replace unfair labor
practice strikers, or to close the plant in the event of a
strike , warning employees that they would receive greater
benefits without a union, and in any similar manner inter-
fering with , restraining, or coercing employees in the ex-
ercise of rights guaranteed in Section 7 of the Act
(b) Refusing to bargain collectively in good faith with
United Steelworkers of America , At I - 10, as the ex-
clusive representative of all production and maintenance
employees , including truckdrivers and installation ser-
vicemen employed at its Jacksonville . Florida, plant, ex-
cluding office clerical employees , salesmen , guards and
supervisors as defined in the Act
(c) Changing the working conditions wages, hours or
other terms of employment of its employees without noti-
fying the United Steelworkers of America. AFL-CIO,
and giving it an opportunity to bargain collectively about
such proposed changes
(d) Discouraging membership in United Steelworkers
of America, AFL-CIO, or any other labor union , by ter-
minating or refusing to reinstate employees because of
their union or strike activities, by withdrawing privileges
which the employees enjoy as a condition of their em-
ployment, or in any other manner discriminating in regard
to hire or tenure of employment, or any term or condition
of employment
2 Take the following affirmative action which it is
found will effectuate the policies of the Act
(a) Upon request, bargain collectively in good faith
with United Steelworkers of America, AFL-CIO, as the
exclusive representative of the employees in the ap-
propriate unit set forth in paragraph I (b) hereof.
(b) Restore to its employees, if it has not already done
so, the privilege of leaving the plant premises during the
midmorning break period.
(c) Offer immediate and full reinstatement to their
former or substantially equivalent positions to Kenneth
Cooney, George Douglas, Ronald Glover, Lawrence
Godsey, Danny Horne, James Hutchinson, Johnnie
Lynes, Jr , Willie Mobley, Herbert Nolan, Thomas Sims,
Charles Stuckey, and Bobby Yarbrough, without preju-
dice to their seniority or other rights and privileges, and
make each of them and Jimmy Horne whole for any loss
of earnings he may have suffered as a result of the dis-
crimination against him in the manner set forth in the sec-
tion of this Decision entitled "The Remedy."
(d) Upon application, offer immediate and full rein-
statement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights
and privileges, to any other of the Respondent's em-
ployees who went out on strike on April 27, 1966, and
make each whole for any loss of earnings he may have
suffered as a result of any refusal of his unconditional ap-
plication for reinstatement. in the manner set forth in the
section of the Trial Examiner's Decision entitled "The
Remedy "
(e) Notify any of the employees named in the preced-
ing paragraphs, excepting Jimmy Horne, if presently
serving in the Armed Forces of the United States of their
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces
(f) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amounts of backpay
due
(g) Post at its Jacksonville, Florida, plant copies of the
attached notice marked "Appendix "" Copies of said
notice, to be furnished by the Regional Director for Re-
gion 12, after being duly signed by an authorized
representative of the Respondent, shall be posted by the
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
a In the event that this Recommended Order is adopted by the Board,
the words a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner ' in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order " shall be substituted for the words "a Decision
and Order "
ITT HENZE VALVE SERVICE
conspicous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(h) Notify the Regional Director for Region 12, in
writing, within 20 days from the receipt of this Decision,
what steps it has taken to comply herewith.`'
I In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps Respond-
ent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT threaten permanently to replace un-
fair labor practice strikers, to close the plant in the
event of a strike, warn employees that they will
receive greater benefits without a union, or make
similar threats against employees because of their
union or strike activities.
WE WILL NOT change the working conditions, the
wages, hours, or other terms of employment of our
employees without notifying the United Steelwork-
ers of America, AFL-CIO, and giving it an oppor-
tunity to bargain collectively about such proposed
changes.
WE WILL NOT discourage membership in United
Steelworkers of America, AFL-CIO, or any other
union by terminating or refusing to reinstate unfair
labor practice strikers, by withdrawing privileges
which the employees enjoy as a condition of employ-
ment, or by discriminating against employees in any
other manner in regard to their hire or tenure of em-
ployment or any term or condition of employment.
WE WILL, if we have not already done so, restore
to our employees the right to leave the plant premises
during the midmorning break period.
603
WE WILL, upon request, bargain collectively in
good faith with United Steelworkers of America,
AFL-CIO, as the exclusive representative of all
production and maintenance employees, including
truckdrivers and installation servicemen, employed
at our Jacksonville, Florida, plant.
WE WILL offer immediate and full reinstatement to
their former or substantially equivalent jobs to Ken-
neth Cooney, George Douglas, Ronald Glover,
Lawrence Godsey, Danny Horne, James Hutchin-
son, Johnnie Lynes, Jr., Willie Mobley, Herbert
Nolan, Thomas Sims, Charles Stuckey, and Bobby
Yarbrough, and will reimburse George Douglas and
Jimmy Horne for any loss of pay they may have suf-
fered as a result of our refusal to reinstate them on
May 20, 1966. We have previously offered Jimmy
Horne reinstatement.
WE WILL, upon application, offer immediate and
full reinstatement to any other employees who went
out on strike on April 27, 1966.
WE WILL notify George Douglas and any other of
the striking employees who have been denied rein-
statement, if presently serving in the Armed Forces
of the United States of their right to full reinstate-
ment upon application in accordance with the Selec-
tive Service Act and the Universal Military Training
Service Act, as amended, after discharge from the
Armed Forces.
Dated By
ITT HENZE VALVE SERV-
ICE, CONTROLS AND IN-
STRUMENTS DIVISION, IN-
TERNATIONAL TELEPHONE
AND TELEGRAPH CORPORA-
TION
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Room 706,
Federal Office Building, 500 Zack Street, Tampa, Florida
33602, Telephone 228-7711.