Local 220, Int'l Union of Electrical, Radio, Etc.

National Labor Relations Board - Board Decisions

Jun 27, 1960

127 N.L.R.B. 1514 (N.L.R.B. 1960)

1514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act :
All production and maintenance employees, including shipping-
room employees and inspectors both in production and quality control
departments, group leaders George LePage, Ralph Darling, Richard
St. Onge, and Adolphe Sokoloski, and floorladies Helen Puza, Blanche
Legare, Ruth Severe, and Joan Glatki, but excluding all office clerical
employees, professional employees, group leaders Arthur Cunningham
and George Sherran, guards, and all other supervisors as defined in
the Act.
[Text of Direction of Election omitted from publication.]
Local 220, International Union of Electrical , Radio and Machine
Workers of America and its president, Edward L. Lussier
and Package Machinery Company. Case No. 1-CB-603. June
27, 1960
DECISION AND ORDER
On December 28, 1959, Trial Examiner Charles W. Schneider issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in unfair labor
practices in violation of Section 8 (b) (3) of the Act and recommend-
ing that they cease and desist therefrom and take certain affirmative
action, as set forth in the copy of the Intermediate Report attached
hereto. The Trial Examiner also found that the Respondents did not
violate Section 8(b) (1) (A) of the Act and recommended that the
complaint be dismissed with respect to this allegation. Thereafter,
the Respondents, the General Counsel, and the Company filed excep-
tions to the Intermediate Report and supporting briefs.
The Board 1 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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and, for reasons given below, concludes that the complaint
should be dismissed in its entirety.
1. The Trial Examiner found that Respondents directed employees
of the Company to refuse to work overtime and to engage in inter-
mittent work stoppages during bargaining negotiations for the pur-
pose of compelling the Company to agree to a bargaining contract and
thereby violated Section 8(b) (3) of the Act. In arriving at this
' Pursuant to the provisions of Section 3(b) of the Act , the Board has delegated its
powers in connection with this case to a three-member panel [ Chairman Leedom and
Members Bean and Jenkins].
127 NLRB No. 174.
LOCAL 220, INT'L UNION OF ELECTRICAL, RADIO, ETC. 1515
conclusion, the Trial Examiner followed Board decisions in prior
similar cases , including The Prudential Insurance Company of
America case 2 However, on February 23, 1960, the Supreme Court
of the United States issued its opinion in the aforementioned case
holding that economic presure in the form of such harassing tactics
as are attributed to Respondents herein applied by a union during bar-
gaining negotiations to compel agreement to a bargaining contract
does not of itself violate Section 8 (b) (3) of the Act.' In view thereof,
and in the absence of any indication in the record that Respondents
did not otherwise fulfill their statutory duty to bargain, we shall dis-
miss the complaint's allegation that Respondents violated Section
8(b) (3) of the Act.
2. The Trial Examiner also found that Respondents did not violate
Section 8(b) (1) (A) of the Act by the conduct described above. As
we find nothing in this conduct of Respondents which constitutes
restraint and coercion of employees within the meaning of Section
8(b) (1) (A) ,a we shall adopt the Trial Examiner's recommendation
that this aspect of the complaint be dismised.
In view of the above, we shall dismiss the complaint in its entirety.
[The Board dismissed the complaint.]
21nsurance Agents' International Union, AFL-CIO (Prudential Insurance Company of
America ), 119 NLRB 768, enforcement denied 260 F. 2d 736 (C.A, D.C).
a N.L R B. v. Insurance Agents' International Union, AFL -CIO (Prudential Insurance
Company of America), 361 U.S. 477.
' N.L.R.B. v. Drivers, Chauffeurs and Helpers Local Union No. 639 et al. (Curtis
Brothers , Inc.), 362 U.S. 274.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge duly filed July 7, 1959 , and an amended charge filed July 15, 1959,
by Package Machinery Company, Springfield , Massachusetts , the Company herein,
against Local 220, International Union of Electrical, Radio and Machine Workers
of America and its president , Edward L. Lussier, the Respondents herein , the Re-
gional Director for the First Region ( Boston, Massachusetts ) issued his complaint
dated August 21, 1959. The complaint alleged that the Respondents had engaged
in and were engaging in unfair labor practices affecting commerce within the
meaning of Section 8(b)(3) and ( 1)(A) and Section 2(6) and ( 7) of the National
Labor Relations Act, 61 Stat. 136.
With respect to the unfair labor practices , the complaint , as ultimately amended,
alleged in substance that the Respondents had authorized , directed , induced, and
encouraged employees of the Company ( 1) to refuse to work overtime , until and
unless a new collective -bargaining agreement had been consummated between the
Union and the Company , and (2 ) to engage in walkouts and concerted refusals to
perform work.
On September 3, 1959, the Respondents filed their answer denying the commission
of unfair labor practices , and averring as an affirmative defense that the Company
had engaged in violations of Section 8(a) (5) and (1) of the Act. Subsequently the
General Counsel filed a motion to strike the affirmative defense, which motion, more
particularly referred to hereinafter , was granted at the hearing. Various other
pleadings , unnecessary to describe here, were filed prior to the hearing and in due
course disposed of.
Upon due notice a hearing was held in Springfield , Massachusetts , on October 19
and 20 , 1959 , before the duly designated Trial Examiner . The General Counsel, the
Respondents , and the Company were represented by counsel , participated in the
1516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hearing, and were afforded full opportunity to present and to meet relevant and
material evidence, to engage in oral argument, and to file briefs and proposed findings.
On November 9, 1959, the General Counsel, and on November 12, 1959, the Re-
spondents and the Company, filed briefs, which have been considered.
Upon the basis of the entire record in the case, and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Package Machinery Company is a corporation which maintains its principal office
and place of business at Chestnut Street, East Longmeadow, Massachusetts, where
it is now and has been continuously engaged in the manufacture, sale, and distribu-
tion of plastic molding, packaging, and diecasting machinery and related products.
In the course and conduct of its business Package Machinery Company causes,
,and continuously has caused at all times herein mentioned, large quantities of plastic
molding, packaging, and diecasting machinery and related products valued in excess
of $50,000 annually to be sold and transported from said plant in interstate com-
merce to States of the United States other than the State of Massachusetts.
Package Machinery Company is engaged in commerce within the meaning of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 220, International Union of Electrical, Radio and Machine Workers of
America, is a labor organization within the meaning of the Act.
Edward L. Lussier is president of said Local 220.
IH. THE UNFAIR LABOR PRACTICES
The issue involved is the validity of certain harassing conduct constituting con-
certed activity of a kind not protected under the Act. It has been the subject of three
Board decisions in recent years, and is presently pending before the United States
Supreme Court. The cases are Personal Products Corporation, 108 NLRB 743;
Prudential Insurance Company of America, 119 NLRB 768; Buffalo Employers
Group, 124 NLRB 298. In each case the purpose of the Union's conduct was to
put pressure on an employer during bargaining negotiations in order to compel
agreement to a contract. In each instance the Board found the conduct to constitute
a refusal. to bargain in good faith and a violation of Section 8(b) (3) of the Act.
In the Personal Products case the union action found unlawful consisted of refusal
to work overtime, unauthorized extension of rest periods from 10 to 15 minutes,
direction of employees to refuse to work special hours, slowdowns, unannounced
walkouts, and inducing employees of a subcontractor not to work for the employer.
The Prudential case involved a variety of conduct by insurance agents, including
reporting to work late, "sitting in" their offices during working hours, refusing to
perform work after 4:30 p.m., picketing, demonstrating and distributing leaflets
before company offices and to policyholders, securing policyholders' signatures to
petitions directed to the Company on the Union's behalf which were presented to
the Company in connection with mass demonstrations, refusing to attend company
conferences, and disobeying or ignoring certain company instructions or programs
regarding the transaction and promotion of business.
In the Buffalo Employers Group case the union refused to permit the employees
to work overtime on the ground that the employers were not bargaining in good
faith, and in order to bring about an acceptable agreement. In negotiations for
contracts in prior years, namely in 1953, 1954, and in 1956, the union in the
Buffalo case had instituted similar overtime bans to bring about agreements accept-
able to it. The Trial Examiner there found, and the Board affirmed his conclu-
sions, that the case was governed by the Board's Prudential decision and that the
union action constituted a failure to bargain in good faith.
The Personal Products case was refused enforcement by a divided Court of
Appeals for the District of Columbia on October 27, 1955 (227 F. 2d 409). In its
later decision in the Prudential case, December 13, 1957, the Board noted its re-
spectful disagreement with the majority opinion of the Court in the Personal Products
case, and its agreement with the dissenting opinion therein. Thereafter, on October
23, 1958, the same court of appeals, on the authority of its opinion in the Personal
Products case, refused enforcement of the Board's Prudential order. The latter
decision is now before the Supreme Court, certiorari having been granted (358
U.S. 944), and the case recently argued. The Buffalo Employers Group decision
was issued by the Board on August 3, 1959.
LOCAL 220, INT'L UNION OF ELECTRICAL, RADIO, ETC. 1517
The judgment of the Board as to the validity of union tactics such as the foregoing
is set forth in the following excerpts from the Board's decision in the Prudential
case (supra, at 770):
In our opinion, the harassing tactics to which the Respondent resorted while
purporting to negotiate its differences with the Company do not reflect the good-
faith bargaining contemplated by the Act. Collective bargaining in good faith,
as the Board and the Courts have so often held, presupposes that both the
employer and the union "enter into discussion with an open and fair mind,
and a sincere purpose to find a basis of agreement touching wages and hours
and conditions of labor." It requires "cooperation in the give and take of
personal conferences with a willingness to let ultimate decision follow a fair
opportunity for the presentation of pertinent facts and arguments."
In the present case the Respondent's reliance upon harassing tactics during
the course of negotiations for the avowed purpose of compelling the Company
to capitulate to its terms is the antithesis of reasoned discussion it was duty-
bound to follow. Indeed, it clearly revealed an unwillingness to submit its
demands to the consideration of the bargaining table where argument, persua-
sion, and the free interchange of views could take place.
A. The instant allegations
The union action complained of here is of -a kind found illegal by the Board in
the cases just referred to. It involves (1) refusals to work overtime during bargain-
ing negotiations, and (2) sporadic work stoppages, hereinafter described, for short
periods of time during the negotiations. That these actions occurred and were pur-
suant to the policy of the Respondents and the direction of authorized union officials
is conceded. The Respondents' reasons for establishing the policy are referred to
hereinafter. The defense is that the actions were lawful and for cause.
B. The facts
For a number of years, pursuant to contract, the Union has been and is the
bargaining representative of the Company's employees in an appropriate bargaining
unit.,
The last collective-bargaining agreement expired on May 15, 1959. On March 25,
1959, the parties undertook negotiations looking to renewal of this contract.
Periodic meetings have been held since, some under the auspices of State and
Federal mediators, and as recently as October 20, 1959, during the pendency of
the present hearing. However, no agreement has yet been reached.
By the expiration date of the contract, May 15, 1959, the parties had had about
12 meetings, and had narrowed the issues to several points: wages, incentives, insur-
ance, and vacations-all economic in nature. On July 2, 1959, the Company made
the Union another offer, consisting of an optional method of allocating a previously
tendered wage increase-the total amount of the increase remaining the same.
Subsequent meetings have produced no reported change in the respective positions.
1. The ban on overtime
On May 20, 1959, in connection with the negotiations, the Union established a
policy of refusing to work overtime in all departments, except the time-checking
department, until a contract had been executed. This policy, which the employees
in the bargaining unit followed, was put into effect on May 23, 1959, and was
maintained until about September 29 when it was discontinued. The last occasion
on which there was a refusal to work overtime was about September 20. The dis-
continuance of the ban is not necessarily permanent. Union President Lussier testi-
fied that it is subject to change according to circumstances.
The Company apparently took no action on these refusals until August 31, 1959,
when it announced that effective September 2, further such conduct would be cause
for disciplinary measures . About 40 employees were disciplined for refusals to
work overtime-presumably for conduct occurring between September 2 and about
September 20-when the last refusal occurred.
I The appropriate unit is all factory (production, nonproduction, and time checking)
employees employed at the Company's Longmeadow plant, excluding executives, guards,
watchmen, standards department employees, engineers, office employees, and supervisors
within the meaning of the Act.
1518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The work stoppages
On a number of occasions employees participated in partial or intermittent work
stoppages in connection with the dispute. This action was also pursuant to union
direction and policy designed to put pressure on the Company for ultimate settle-
ment of the contract. These stoppages were as follows.
On June 23, the employees in a department known as assembly A, after coming
to work at the regular hour, 7 a.m., walked out at 9 a.m., and remained out for the
rest of that day. On June 24, the milling machine department employees did the
same thing. On September 16, assembly C employees did not report for work
at all-remaining out the entire day. On September 21, the stockroom employees
left their work at 11 a in , staying out the rest of the day. In each case the employees
returned to work at the regular hour on the day following the event. The employees
were not paid for the time they did not work during these occurrences.
The Company imposed disciplinary measures-consisting of suspensions of from
1 to 5-days.-on the employees who participated in these interruptions. There have
been no further incidents of this kind since September 21. At a negotiating session
held on October 6, 1959, Union Representative Carter stated that the Union had
"temporarily stopped its harassment tactics, in order to create a better atmosphere
for the collective bargaining sessions." In response to inquiry from the Company
as to the meaning of this statement, Union President Lussier said that the Union
had "lifted the overtime ban." He further said that, as to the work stoppages,
the Union had not "called any in over a week"; though it could not "guarantee how
long this will go on."
Concluding Findings
The position of the Respondents is twofold: First, that the correct law in the
matter is that stated by the court of appeals in reversing the Board in the Personal
Products and Prudential cases, cited supra. Alternatively, the Respondents say
that even if the Board is right in its view of the law, their conduct falls short of
that condemned in Personal Products and Pi udential.
The Respondents' first proposition may be disposed of summarily: the Trial
Examiner is required to follow established Board precedent which has not been
reversed by the Board or the Supreme Court. In the Prudential case, the Board
said, at 773:
it is not for a Trial Examiner to speculate as to what course the Board
should follow where a circuit court has expressed disagreement with its views.
On the contrary, it remains the Trial Examiner's duty to apply established
Board precedent which the Board or the Supreme Court has not reversed.
Only by such recognition of the legal authority of Board precedent, will a uni-
form or orderly administration of a national act, such as the National Labor
Relations Act, be achieved.
With due respect to the court of appeals, the applicable law to be followed by the
Trial Examiner is that declared by the Board.2
We turn now to the Respondents' further contentions.
The Board has plainly said that union-directed sporadic work stoppages and bans
on overtime, constituting unprotected concerted activities, whose purpose is to
compel an employer to agree to a contract, are, under the circumstances of the
prior cases, a refusal to bargain. The principle of those decisions, as I interpret
them, is that such conduct is evidence of refusal to bargain in good faith which,
in the absence of adequate justification, will sustain a finding of violation of Section
8(b)(3).
This, of course, is not a per se doctrine. As the Board pointed out in its Personal
Products opinion (p. 748) :
"Good faith" is a question of fact to be decided in each case on the totality
of the relevant evidence. . . The unprotected harassing tactics employed
herein are evidence that the Respondents failed to bargain collectively in
good faith.
There may be situations in which refusals to work overtime and partial or sporadic
work stoppages are neither unprotected concerted activities nor refusals to bargain.
Though unfair labor practices by one party are not a defense to charges by another
2 Manifestly the Trial Examiner is not indicating disagreement with the Board, or for
that matter with the court of appeals There being binding precedent on the point, his
personal views are neither relevant nor appropriate. See Ranco, Inc., 109 NLRB 998.
LOCAL 220, INT'L UNION OF ELECTRICAL, RADIO, ETC. 1519
Q. W. Banta Towing Company, Inc., et al., 116 NLRB 1767; Anderson Lithograph
Company, Inc., et al., 124 NLRB 920; Globe Wireless Ltd., 88 NLRB 1262), conduct
of one of them may be such as to warrant action by the other which, absent the
justification, would constitute unfair labor practices. Thus, an employer may
refuse to bargain during a slowdown (Phelps Dodge Copper Products Corporation,
101 NLRB 360), or may discharge employees for that conduct (Elk Lumber Com-
pany, 91 NLRB 333), although normally action of an employer in the way of
refusing to bargain with an exclusive representative or discharging employees for
concerted activity would be violative of the Act.3
The question then is whether the situation is such that under the circumstances
the Respondents' tactics did not constitute refusals to bargain. We look therefore
for adequate justification. In the prior cases such justification was either not urged
or not found sustained.
The Respondents' points in this respect, as stated in their brief, are: (1) That the
expired contract and plant practice allowed refusal of overtime assignments-there-
fore such refusals cannot be unfair labor practices, and (2) that the refusal to
work overtime and the work stoppages were permissible self-help in retaliation for
company action in removing bargaining unit work from the plant. These contentions
will be discussed in order.
(1)
I do not find that the contract or plant practice permitted employees or the
Union to refuse to perform overtime work. The Respondents' contention in this
respect is bottomed upon the fact that in 1958, during the term of the recent
contract, the employees, at the direction of the Union, refused to work overtime for
3 days in a dispute over the time that the coffee wagon should make the rounds
of the plant. No discipline was imposed by the Company for that action. This
incident, the Respondents say, reflects recognition by the Company of employee
and union right to refuse overtime in order to compel agreement. However, the
Company denies that its omission to discipline constituted such recognition. It
insists that the refusal was in fact a contract violation.
The contract provided rates of pay for overtime and is silent as to any overtime
ban. A contention somewhat similar to the present one was made by the union
in the Personal Products case, and rejected (supra, at 771). The evidence here
does not support the Respondents' claim that either the contract or plant practice
permitted refusals to perform overtime work. In any event if the right was con-
tractual it did not survive the expiration of the contract. However, that aside, the
failure of the Company to impose discipline for the 1958 refusal is insufficient to
establish the right as a condition of employment. The fact, if true, that proposals
concerning the matter may have been made in negotiations for previous contracts,
is of no material bearing here. That the contract did not contain a "management
rights" clause is not controlling. Equally it did not contain a "union rights" clause.
The Respondents likewise assert that, an impasse having been reached in the
negotiations for a new contract, the Union was free to put into effect an implied
proposal permitting the refusal to work overtime. The factual premises for this
proposition are (1) that an impasse had been reached, (2) that under the expiring
contract the Union possessed the right to refuse overtime work, and (3) that no
proposals for modification of that right were involved in the negotiations.
Where parties to collective bargaining have bargained to an impasse the employer
may, within the limits of his rejected or unaccepted proposals to the union, proceed
to institute the conditions embodied in such proposals. N.L.R.B. v. Crompton-
Highland Mills, Inc., 337 U.S. 217, 224. Practical difficulties aside, a union may
have the legal right to seek to do the same, subject, of course, to the employer's
right to refuse to provide employment on such a basis.
In the instant case, however, there was no existing condition of employment
authorizing the refusal of overtime work, and no bargaining proposals-either
8 Since unfair labor practices by the Company would not constitute a defense to the
instant charges, an allegation in the Respondents' answer to the effect that the Company
had not bargained in good faith was stricken upon motion of the General Counsel-with-
out prejudice, however, to the submission of any facts bearing on the issue whether the
Respondents had bargained in good faith. In the Buffalo case the Union's announced
reason for the institution of the overtime ban there found unlawful was also that "the
management group was not bargaining in good faith "
It may be noted parenthetically that the Union here filed charges of unfair labor
practices, including refusal to bargain, against the Company, but these were dismissed
by the Regional Director.
1520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
expressed or implied-concerning the refusal of overtime which were rejected or
unaccepted. Nor was there an impasse in the negotiations. As has been seen, the
parties have continued to meet and to negotiate up to and including the time of
the hearing. That the Company may have altered conditions of employment after
the expiration of the contract is of no materiality here. The most that such action
could suggest is that the Company might have been guilty of a refusal to bargain-a
question, as we have seen, not a defense and not involved; and one on which I do
not pass .4
,(2)
We turn then to the Respondents' second proposition, namely, that the refusal
to work overtime and the work stoppages were permissible self-help in retaliation
for company action in removing bargaining unit work from the plant.
The contract expired at midnight on Friday, May 15, 1959. Uncontroverted
testimony establishes that on Monday of that week, May 11, the Company, pre-
sumably in anticipation of a strike, moved some parts out of the plant. Subsequent
to the expiration of the contract, in the latter part of May, the Company also moved
out some unfinished machines, completing them at the place of destination, and
using supervisors therefor. Ordinarily this work is performed in the shop by the
bargaining unit.
The evidence indicates, however, that the shipment of unfinished machines was
caused by inability of the Company to meet shipping commitments, due to the ban
on overtime which the Union instituted on May 20. This explanation was given
to the employees by the Company as early as May 27 and is not refuted. No
employees were laid off as a consequence of the moving out of work. How long the
Company continued this action is not clear.
Union President Lussier testified that the ban on overtime, and in part the work
stoppages, were instituted because of the Company's action in moving the work out
of the plant. I cannot credit that testimony. It appears to me an afterthought
designed to provide a color of possibly legitimate motivation for action conceived
for quite different reasons.
First, it is clear from Lussier's testimony that his basic premise is that the Union's
policy is protected by law.5 Secondly, the Company's published statements con-
temporaneous with the events assert, without evident contravention at that time,
that the machines were being shipped in incomplete condition because of inability
to meet shipping commitments due to the ban on overtime. Thus the Company's
action was a consequence, and not a cause, of the overtime ban. Thirdly, there is
no evidence that the Respondents at anytime up to the hearing asserted that the
ban or the work stoppages were motivated by the Company's action in shipping
out parts or machines. It is implausible that if the Respondents' conduct was
caused by such action that the Respondents would not have made that causation
unequivocally clear at that time or later. The evidence reflects no reference to such
a possible motivation during the negotiations, nor indeed until the hearing-after
the issue of motivation had become important. Fourthly, the conclusion is in-
escapable from the whole record that the Respondents' purpose was merely to put
bargaining pressure upon the Company in order to secure acceptancy of a contract.
This seems quite clear from other testimony of President Lussier, testimony of
Union Secretary Theresa Cavanaugh, and the statements made by Union Repre-
sentative Carter and President Lussier in the October 6 negotiating meeting, in which
they announced the cessation for the time being of the overtime ban and the work
stoppages. It is undenied that as early as May 27 President Lussier stated in a
negotiation meeting that "There will be no overtime worked until there is a
contract signed." On July 9, 1959, President Lussier gave an affidavit in which he
stated that "after the contract ceased, the Union stopped overtime after one or
two days as a means of putting pressure on the Company to reach a new contract."
The reasons asserted by President Lussier in his testimony as basis for the cessation
4It may be noted that in the Buffalo Employers' Group case, 124 NLRB 298, the ban on
overtime found unlawful was instituted after the union negotiators had decided that an
impasse had been reached. The facts there, as here, quite clearly refute such a con-
clusion. In the Buffalo case the union had also banned overtime during negotiations for
previous contracts as part of its bargaining tactics, without disclosed disciplinary action
by the employers.
Thus, Lussier testified
There's no law that says we got to work overtime. The court has said you don't
have to work overtime, and it is now pending before the Supreme Court. You are
talking about the NLRB law. I am not concerned with the NLRB.
LOCAL 220, INT'L UNION OF ELECTRICAL, RADIO, ETC. 1521
of the ban on overtime contain no reference to the moving out of goods. His
explanation was that the Union wished to demonstrate the falsity of the Company's
claim that any substantial amount of overtime was being lost by reason of the ban.
Finally, President Lussier testified that one of the purposes of the work stoppages
was to put pressure on the Company in the negotiations to bring about ultimate
settlement of the contract.
From all these circumstances I conclude that the ban on overtime and the work
stoppages were not instituted by the Union in retaliation for the Company's action
in moving out parts or machinery, but that they were adopted wholly or substantially
for the purpose of compelling the Company to agree upon a collective-bargaining
contract. To the extent that the Union's conduct was so motivated, there being
no circumstances justifying it, the action constituted a refusal to bargain.
That the employees were not paid for the time they did not work, while differing
the case factually from some of the elements involved in Prudential, does not require
a different result. In my opinion, the controlling principle is the same regardless
of whether or not the employees are paid for the time they are engaged in the
prohibited activities.
Upon the basis of these considerations it is found that by directing employees
to refuse to work overtime and to engage in partial, sporadic, or intermittent work
stoppages and concerted refusals to perform work, in the nature of unprotected
concerted activities, for the purpose of compelling company agreement upon a
collective-bargaining contract, without cause therefor, the Respondents refused to
bargain collectively in good faith in violation of Section 8(b)(3) of the Act.
C. The 8(b) (1) (A) allegation
In addition to alleging that the Respondent's conduct was violative of Section
8(b)(3), the General Counsel also contends that it constituted violation of Section
8(b)(1)(A): that is, restraint and coercion of employees.
This issue was presented to the Board in the Personal Products case, supra, where
the Trial Examiner found such a violation in short walkouts, but did not pass upon
the refusal to work overtime as restraint and coercion (p. 774, footnote 9) In its
decision in that case the Board, noting that it was finding other 8(b)(1)(A) viola-
tions, found it unnecessary to pass upon the legality of either tactic (p. 749).
The General Counsel's theory here is that the Union's policy respecting over-
time and work stoppages coerced employees by subjecting them to discharge and
discipline by the Company, and the loss of work opportunities. As authority the
General Counsel cites the case of Curtis Brothers, 119 NLRB 232, 236, in which
the Board found that picketing an employer for recognition by a union which was
not a majority representative was coercive as to the employer's employees, and
violative of Section 8(b)(1)(A). However, the most direct authority on the
point is the case of National Maritime Union, et al., (The Texas Company), 78
NLRB 971. In that case the Board refused to make derivative findings of
8(b)(1)(A) violations on the basis of 8(b)(3) conduct
In the NMU case the Board, after reviewing the legislative history of Section
8(b)(1) (A), said the following (p. 985):
Nothing in this legislative history indicates that a union which refuses to bargan
is to be considered as having per se "restrained" or "coerced" employees in the
exercise of their rights guaranteed in Section 7 ... .
The NMU decision is clearly interpretable as forbidding a finding of 8(b)(1)(A)
violation here. Whether properly so is a question for the Board alone to decide.
The Board's failure to overrule or distinguish that case in the Personal Products
decision, where the issue was specifically presented, leaves me no alternative but to
consider the NMU case as binding and effective precedent here. It is manifestly
inappropriate for the Trial Examiner to rush in where the Board has deliberately
chosen not to tread. Just as a Trial Examiner may not ignore precedent in order to
avoid violations, so is he equally obligated not to disregard it for the purpose of
finding them-even if in so doing he may correctly anticipate Board reversal of
policy. See Prudential Insurance Company of America, 119 NLRB 768, footnote 17.
Seemly administration of the Act is not promoted by the subordination of precedent
to the eager speculations of divination.
Upon the foregoing state of authority, I cannot find a union policy forbidding
employees to work overtime and requiring engagement in partial, sporadic, or
intermittent work stoppages violative of Section 8(b)(1)(A) of the Act. It will
therefore be recommended that that allegation of the complaint be dismissed.
560940-61-vol. 127-97
1522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in con-
nection with the operations of the Company described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in certain unfair labor practices,
it will be recommended that they cease and desist therefrom, and take certain
affirmative action designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. Package Machinery Company, Springfield, Massachusetts, is engaged in com-
merce within the meaning of the Act.
2. Local 220, International Union of Electrical, Radio and Machine Workers of
America, is a labor organization within the meaning of Secton 2(5) of the Act.
3. Local 220, International Union of Electrical, Radio and Machine Workers of
America, is, and at all times material has been, the exclusive representative of the
Company's employees in the appropriate unit described in section III, for the
purposes of collective bargaining within the meaning of Section 9(a) of the Act.
4. By refusing to bargain collectively in good faith with the Company, the Re-
spondents have engaged in and are engaging in unfair labor practices within the
meaning of Section 8 (b) (3) of the Act.
5. The aforesaid unfair labor practices affect commerce within the meaning
of Section 2(6) and (7) of the Act.
6. The Respondents have not engaged in unfair labor practices in violation of
Section 8(b) (1) (A) of the Act.
[Recommendations omitted from publication.]
Retail Clerks International Association , AFL-CIO, and Retail
Clerks Union, Local 770, AFL-CIO and Food Employers
Council, Inc.
Retail Clerks International Association , AFL-CIO , and Retail
Clerks Union, Local 770, AFL-CIO and United States Hard-
ware & Paper Co., and Wesco Merchandise Co. . Cases Nos.
P21-CC-280 and 21-CC-287. June 27, 1960
DECISION AND ORDER
On August 20, 1958, Trial Examiner Wallace E. Royster issued his
Intermediate Report in the above-entitled proceeding, fording that
Respondent Local 770 had engaged in and was engaging in certain
unfair labor practices and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. The Trial Examiner also
found that Respondent International had not engaged in any unfair
labor practices and recommended that the complaint be dismissed
with respect to it. Thereafter, Respondent Local 770, the General
Counsel, and the Charging Parties, United States Hardware & Paper
127 NLRB No. 171.