Newtown Corporation

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 659 (N.L.R.B. 1981)

NEWTOWN CORPORATION
Newtown Corporation and Teamsters Local 651, af-
filiated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Cases 9-CA-15258 and 9-
CA- 15418
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On July 13, 1981, Administrative Law Judge
Thomas D. Johnston issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions 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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, ' and
conclusions 2 of the Administrative Law Judge and
to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Newtown Cor-
poration, Lexington, Kentucky, its officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order.
'Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance (of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
' Member Jenkins would award interest on the backpay due in accord-
ance with his dissent in Olympic Medical Corporation, 250 NLRB 146
(1980).
DECISION
STATEMENT OF THE CASE
THOMAS D. JOHNSTON, Administrative Law Judge:
These consolidated cases were heard by me in Lexing-
ton, Kentucky, on May 19, 1981, pursuant to charges
filed by Teamsters Local 651, affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehou-
semen and Helpers of America (herein referred to as the
Union), in Case 9-CA-15258 on April 29, 1980,' and in
Case 9-CA-15418 on June 6, and a consolidated amend-
ed complaint issued on January 12, 1981.
'All dates referred to are in 1980 unless otherwise stated.
The consolidated amended complaint, which was fur-
ther amended at the hearing, alleges that Newtown Cor-
poration (herein referred to as the Respondent) violated
Section 8(a)(1) and (3) of the National Labor Relations
Act, as amended (herein referred to as the Act), by fail-
ing and refusing to return to their jobs employees Doug
Begstead, James Thompson, Jr., Shelby Russell, John
Sensabaugh, Behrouz Sattery, Junior Smith, and Roy
Rogers (herein referred to as the discriminatees) because
they supported or assisted the Union and/or engaged in
a strike caused by the Respondent's unfair labor prac-
tices, and in order to discourage employees from engag-
ing in such activities or other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection. It alleges that the Respondent violated Sec-
tion 8(a)(l) and (5) of the Act by granting a wage in-
crease to its unit employees without having afforded the
Union, which was their exclusive representative, an op-
portunity to negotiate and bargain with respect to the
raise.
The Respondent in its answer filed at the hearing 2
denies having violated the Act and asserts as an affirma-
tive defense that it was improperly and unlawfully certi-
fied in Case 9-RC-13101 over its objections. Additional
defenses raised at the hearing were: () the discriminatees
were not covered by the Act because the Respondent
was not subject to the Board's jurisdiction; (2) they were
terminated because of picket line misconduct; and (3)
that the Union had agreed to allow the Respondent to
grant its employees the wage increase.
The issues involved are whether the Respondent vio-
lated Section 8(a)(1), (3), and (5) of the Act as alleged by
refusing to bargain with the Union by unilaterally grant-
ing the unit employees a wage increase and by discrimin-
atorily failing and refusing to return the discriminatees to
their jobs because of their union and protected concerted
activities.
Upon the entire record in these cases, from my obser-
vations of the witnesses, and after due consideration of
the briefs filed by the General Counsel and the Respond-
ent,3 I hereby make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a Kentucky corporation, is engaged
in the operation of a solid waste transfer station located
at Lexington, Kentucky. It is a party to a contract with
the Lexington-Fayette Urban County Government
(herein referred to as the County), a political subdivision
of the State of Kentucky, which provides, inter alia. that
the Respondent performs refuse transfer services for the
county. During the 12-month period preceding January
12, 1981, a representative period, the Respondent, in the
course of its business operations, described above, pro-
vided services in excess of 50,000 pursuant to the con-
tract, described above, for the county, which is directly
engaged in interstate commerce.
2 Answers had previously been filed by the Respondent to each sepa-
rate complaint issued prior to their consolidation.
'The Union did not submit a brief
258 NLRB No. 88
659
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent denies, however, that it is an employ-
er within the meaning of Section 2(6) and (7) of the Act
because it provides services to a political subdivision of
the State.
These defenses were previously considered and reject-
ed by the Board in its decision in Newtown Corporation,
251 NLRB 536 (1980), 4 which found on the facts as set
forth supra, that the Respondent was an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
Therefore, I find, contrary to the Respondent's denial,
that the Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters Local 651, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background and the Bargaining Unit
The Respondent operates a solid waste transfer station
at Lexington, Kentucky. Included among its official and
supervisory personnel are President Stanley Rose, Vice
President David Rose, who previously held the position
of general manager, and Supervisor Jack Poster. 5
On February 7, following a Board-conducted election
held among the Respondent's employees on December
14, 1979, the Union was certified as the collective-bar-
gaining representative of the employees in the following
described unit:
All production and maintenance employees em-
ployed by the Employer at its 1401 Old Frankfort
Pike, Lexington, Kentucky facility, including truck
drivers, litter pickers, maintenance men and traffic
controllers, but excluding all office clerical employ-
ees and all professional employees, guards and su-
pervisors as defined in the Act.
The Board in its Decision in Newtown Corporation,
supra, found that the above-described unit constituted a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act and that
since February 7, the Union has been and now is the cer-
tified and exclusive representative of the unit employees
for the purpose of collective bargaining within the mean-
ing of Section 9(a) of the Act.
B. Unlawful Wage Increase
On February 29, the Respondent granted its employees
a 25-cent-per-hour wage increase.
Based on the undisputed testimony of James Thomp-
son, Jr., the previous day Supervisor Foster called the
employees in the office and informed them they were
' Official notice has been taken of that Decision which is presently
pending in the United States Court of Appeals for the Sixth Circuit.
s These three individuals are supervisors under the Act.
supposed to get a letter from the Union authorizing the
raise and said they were going ahead and give it to them
anyway.
According to both President Rose and Vice President
Rose the prior practice had been to give employees
raises every 6 months depending upon business condi-
tions and this had included giving them 25-cent-per-hour
increases. The next raise would have been due about
February 29.
President Rose testified when employees were hired
they were informed that as conditions improved they
would receive raises and the Respondent would try to
make it 25 cents per hour every 6 months. However,
Vice President Rose, who stated Supervisor Foster now
does the interviewing, upon being confronted with an af-
fidavit given to a Board agent, acknowledged that when
he last interviewed four employees to be hired during
the period May to June 1979 he did not believe he told
them there was any policy about giving raises on a 6-
month basis. He did tell them they were not sure when
they could give raises but as long as business improved
as they expected there would not be any difficulty in
making periodic raises.
President Rose stated that about February 19 he con-
tacted Business Agent Edwards by telephone, explained
the precedent for giving raises to the employees, and
told him the men were due a raise. Edwards' response
was he would never stand in the way of anybody getting
a raise in wages whereupon he then asked Edwards to
send him a letter to that effect which Edwards promised
to do. Vice President Rose, who stated he also partici-
pated in this conversation, testified on that occasion Ed-
wards said he would like to see the men get a raise and
see any man get a raise he worked with and agreed to
the raise and promised, pursuant to their request, to send
a letter to that effect. However, upon being asked spe-
cifically what Edwards had said to show he agreed, Vice
President Rose stated Edwards said something like he
did not see any problem with that and hated to stand in
the way of anybody getting a raise and that he did not
think there would be a problem with it.
No such letter was ever sent by Business Agent Ed-
wards to the Respondent.
President Rose, whose testimony was corroborated by
Vice President Rose, testified after 3 or 4 days went by
without receiving the letter he contacted Business Agent
Edwards who informed him he had been very busy and
had been out of town but said the letter was in the type-
writer and he would get it shortly.
The Respondent went ahead and put the raise into
effect on February 29.
President Rose further testified about March 10 when
he still had not received the letter he tried to contact
Business Agent Edwards but was informed Edwards was
out of town whereupon Kenneth Silvers, who was the
president of the Union, then got on the telephone and in-
formed him that he was running the Union and that they
were not going to get a letter.6
6 President Silvers did not testify.
660
NEWTOWN CORPORATION
Business Agent Edwards denied making the statements
attributed to him by both President Rose and Vice Presi-
dent Rose concerning his approving the raise for the em-
ployees or agreeing to send them a letter to that effect.
Rather, he stated that about the middle of February
when Vice President Rose called and asked for permis-
sion to give the employees a raise he informed him they
could not and said they had been certified by the Board
and they would he sitting down and hopefully negotiat-
ing a contract. Approximately 1 week later President
Rose called and also asked for permission to grant the
employees a raise, whereupon Edwards told Rose they
could not and said they would be sitting down and nego-
tiating a contract and that would be the time to discuss
the wages.
I credit the testimony of Business Agent Edwards
rather than President Rose and Vice President Rose and
find that Edwards did not agree to the Respondent
granting its unit employees the 25-cent-per-hour wage in-
crease on February 29. Apart from my observations of
the witnesses in discrediting the testimony of President
Rose and Vice President Rose, even Vice President
Rose's own version failed to establish Edwards actually
agreed to their granting the raise and no such letter
which they themselves had demanded was ever received
to confirm this alleged agreement. Moreover, their claim
that they were seeking the approval of the Union to
grant the unit employees a raise while at the same time
the Respondent admittedly was refusing to recognize and
bargain appears inconsistent with such contentions.
Business Agent Edwards denied discussing the raise
with President Silvers.
C. The Unfair Labor Practice Strike
The Board in Newton Corporation, supra, found that
commencing on or about February 7 and continuing
thereafter the Union requested the Respondent to bar-
gain collectively with it as the exclusive collective-bar-
gaining representative of the unit employees and that the
Respondent commencing on or about April 10 and con-
tinuing thereafter unlawfully refused to recognize and
bargain with the Union, thereby violating Section 8(a)(5)
and (1) of the Act.
During a meeting held on April 10, requested by
President Rose to discuss Case 9-RC-13101, Union Busi-
ness Agent Edwards testified that President Rose in-
formed him the Respondent would not sit down and bar-
gain because it felt the Board did not have jurisdiction in
that case. President Rose also mentioned they could go
ahead and strike or do whatever they wanted to but said
he would replace them and continue doing business as
usual.
On Friday, May 23, Edwards testified that he along
with Union Business Agent Ken Stacey and discrimina-
tee James Thompson, Jr., met with President Rose and
Vice President Rose at which time President Rose again
informed him he could not sit down and negotiate be-
cause he felt the Board did not have jurisdiction in that
case.
President Rose, who admitted the Respondent never
tried to negotiate a contract with the Union, acknowl-
edged having such conversations with Edwards and fur-
ther stated that when Edwards asked him about bargain-
ing he had informed Edwards it was not timely to dis-
cuss bargaining until it had been finally determined the
Respondent was eligible under the Act to have a bar-
gaining unit.
Following the April 10 meeting with the Respondent,
Union Business Agent Edwards credibly testified without
denial that he held a meeting of the Respondent's em-
ployees at which they discussed striking, and the em-
ployees gave him their approval to strike.
On May 27, which was the first workday following
the May 23 meeting, the Union engaged in a strike and
began picketing at the Respondent's premises. The strike
continued until the afternoon of May 30 when it was
called off by Edwards after receiving notice that the
General Counsel had issued its refusal to bargain com-
plaint against the Respondent on May 28 in the prior
case. On the afternoon of May 30, the Union sent the
Respondent a mailgram notifying it that since complaint
had issued it was terminating the strike and its members
were being instructed to report back to work on
Monday, June 2. Edwards stated he then instructed the
employees who had been on strike to return to work.
D. The Discharge of the Strikers
The discriminatees, Doug Begstead, James Thompson,
Jr., Shelby Russell, John Sensabaugh, Behrouz Sattery,
Junior Smith, and Roy Rogers, all in the strike and en-
gaged in picketing at the Respondent's premises.
James Thompson, Jr., credibly testified, without
denial, that on May 27 Vice President Rose came to the
picket line, called him aside, and asked him to get the
men back to work or said they would be fired. He in-
formed Rose he would have to talk to the men because it
was not up to him to decide. Later that same morning he
had a similar conversation at the picket line with Presi-
dent Rose who told him that the employees would be
terminated or replaced7 if the employees did not come
back to work. The next morning President Rose returned
to the picket line and talked to all of the pickets about
their returning to work. 8
President Rose acknowledged for the first 3 days of
the strike that he appeared at the picket line and from
the very beginning urged the strikers to come back to
work to protect their jobs and told them repeatedly they
were making a mistake.
On June 2, all of the discriminatees made uncondition-
al offers to return to work.
Based on the testimony of James Thompson, Jr.,
Junior Smith, and Doug Begstead upon their reporting
for work on June 2 along with Shelby Russell and Roy
Rogers, 9 Supervisor Foster informed all of them they
had been replaced and would have to see President
Rose. Upon their going to see President Rose, he in-
formed them they would receive a letter from his attor-
' Thompson was not certain whether Rose used the word "terminated"
or "replaced."
8 These threats were not alleged as violations and, accordingly, no in-
dependent finding of a violation will be made.
9 According to Thompson there were five other employees with him,
however, the other employee was not identified.
661
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ney. John Sensabaugh also testified that when he report-
ed to work that same day Supervisor Foster informed
him he had been replaced and provided him with the
telephone number for attorney Houlihan, who advised
him he would be receiving a letter.
Supervisor Foster acknowledged telling the strikers
when they reported to work on June 2 that they had all
been replaced and any further discussions would have to
be with President Rose or the Respondent's lawyer. His
testimony reflects that he was told on May 28 or 29 if
the men did not come back to work to hire new employ-
ees. While Foster stated he hired approximately two em-
ployees during the strike, he acknowledged he did not
know whether he had replaced all of the strikers by June
2 and further said the bulk of the hiring occurred during
the full week after the strike.
President Rose sent letters to all of the discriminatees
dated June 2 which provided as follows:
We have received from Teamsters Local #651
notice that the strike begun against us on May 27,
1980 has been terminated. You have applied to us
for reinstatement to your job. This is to notify you
that on the account of your misconduct on the
picket line and in support of the strike in which you
participated, or which misconduct you supported,
your employment is hereby terminated.
President Rose testified that the entire basis for his not
reinstating the strikers was because of their misconduct
on the picket line.
E. Alleged Strike Misconduct
The Respondent presented certain evidence of alleged
misconduct on the part of the strikers upon which Presi-
dent Rose claimed he relied as reasons for not reinstating
them. President Rose admittedly was not present when
these alleged incidents occurred.
He described one incident occurred where a driver
who was reporting to work and the driver's wife who
was driving him to work both felt threatened. However,
no details of the incident were given to establish either
what caused them to feel threatened or which, if any,
strikers may have been responsible.
Supervisor Foster testified that he observed the pick-
ets10 walk across the driveway more or less shoulder to
shoulder as the city trucks approached showing they
were on picket. However, as the trucks pulled in the
pickets would drift back and tell the drivers they were
on strike. Although on occasions the trucks would have
to slow down a bit until the pickets moved out of the
way, Foster acknowledged the trucks were allowed to
come through and there was no violence.
Cecil Smith, who was hired by the Respondent as a
truckdriver during the strike, testified on Thursday or
Friday morning, which would have been May 29 or 30,
as he was entering the landfill at gate two Junior Smith
and two or three other guys stopped him and Junior
Smith said to him, "We will kill for our jobs." Accord-
ing to Cecil Smith, he understood the statement to mean
O These pickets were not identified.
they were going to whip him which frightened him.
Under cross-examination Cecil Smith acknowledged that
Junior Smith had also mentioned they had jobs to pro-
tect and did not want to lose them and had families to
feed and had asked him why he was crossing the picket
line whereupon he told them he had a family to feed too
and that was why he was taking this job. Although Cecil
Smith identified James Thompson, Jr., and John Sensa-
baugh as persons he had talked to before, he did not
identify any of those persons, besides Junior Smith, who
he said were present in the group which he later de-
scribed consisted of about five persons rather than two
or three as originally stated.
Cecil Smith admitted after the statement was made
that he drove through the picket line and continued to
work without being assaulted.
Cecil Smith filed a complaint, dated May 29, concern-
ing the incident with the Lexington-Fayette County Di-
vision of Police. The complaint signed by Cecil Smith
which reflect pickets threatened to do Smith bodily
harm, further states, "They made no statement as to the
kind of bodily harm that they intended to use." The
complaint on which no action was taken further reflects
Smith stated he was not going to obtain any warrant.
Junior Smith admitted having a conversation with
Cecil Smith at the picket line on May 29 where he and
two other strikers were picketing as Cecil Smith came
through the gate but denied making the threat attributed
to him. According to him all he asked Cecil Smith was
not to cross the picket line. However, Cecil Smith said
he had a family to support and he had been out of work
and was going to cross it whereupon he stepped back
out of the way and Cecil Smith drove through and went
to work.
Doug Begstead, who testified he was at the gate that
morning picketing along with Junior Smith and maybe
one more employee stated as Cecil Smith drove up
Junior Smith asked him not to cross the picket line.
However, Cecil Smith went ahead and crossed it. Beg-
stead could not hear Cecil Smith's response.
I credit the testimony of Junior Smith, which was cor-
roborated by Doug Begstead and find that neither Junior
Smith nor any other pickets with him impliedly threat-
ened to kill or to do bodily harm to Cecil Smith, who I
discredit. Besides my observations of the witnesses in dis-
crediting Cecil Smith, his testimony was not only contra-
dictory but the complaint signed by him makes no refer-
ence to the implied threat to kill him and in fact states he
was not told of the kind of bodily harm they intended to
use.
The Respondent filed a complaint on May 30 with the
Fayette Circuit Court, First Division, against the Union
and the pickets seeking a restraining order and injunction
alleging the pickets had threatened the Respondent's em-
ployees with physical violence or harm thus preventing
them from working and had blocked the roadway at the
Respondent's facility and blocked vehicles seeking to use
it. A notice of voluntary dismissal on this action was
filed with the court on June 2, after the strike had ended.
662
NEWTOWN CORPORATION
F. Analysis and Conclusions
The General Counsel contends the Respondent violat-
ed Section 8(a)(l), (3), and (5) of the Act by refusing to
bargain with the Union by unilaterally granting the unit
employees a wage increase and by discriminatorily fail-
ing and refusing to return the discriminatees to their jobs
because of their union and protected concerted activities.
The Respondent denies having violated the Act and
asserts as affirmative defenses that it was improperly and
unlawfully certified in Case 9-RC-13101 over the Re-
spondent's objections; that the discriminatees were not
covered by the Act because the Respondent was not sub-
ject to the Board's jurisdiction and they were also termi-
nated because of picket line misconduct; and that the
Union had agreed to allow the Respondent to grant its
employees a wage increase.
The Board in Newtown Corporation, supra, previously
considered and rejected the Respondent's claim that it
was improperly and unlawfully certified in Case 9-RC-
13101 and found as previously noted the Respondent is
an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act. Accordingly, the af-
firmative defense that it was improperly and unlawfully
certified as well as the affirmative defense claiming the
discriminatees are not covered by the Act lack merit and
are hereby rejected.
Section 8(a)(l) of the Act prohibits an employer from
interfering with, restraining, or coercing its employees in
the exercise of their rights guaranteed in Section 7 of the
Act. Section 8(a)(3) of the Act provides in pertinent part:
"It shall be an unfair labor practice for an employer ...
by discrimination in regard to hire or tenure of employ-
ment or any term or condition of employment, to en-
courage or discourage membership in any labor organi-
zation .... " Section 8(aX5) of the Act prohibits an em-
ployer from refusing to bargain collectively with the rep-
resentative of its employees.
The initial issue discussed is whether granting the unit
employees a wage increase was unlawful.
The statutory obligation to bargain requires the parties
to meet at reasonable times and confer in good faith with
respect to rates of pay, wages, hours of employment, and
other conditions of employment. The law is well estab-
lished that the unilateral changes of "wages, hours and
terms and conditions of employment" by an employer
obligated to bargain with the representative of its em-
ployees in an appropriate unit violates Section 8(a)(5) of
the Act. Master Slack and/or Master Trousers Corp., et
aL, 230 NLRB 1054 (1977), enfd. 618 F.2d 6 (6th Cir.
1980); Amsterdam Printing and Litho Corp., 223 NLRB
370 (1976); and N.L.R.B. v. Benne Katz, etc., d/b/a Wil-
liamsburg Steel Products Co., 369 U.S. 736 (1962).
The findings, supra, establish that on February 7 the
Union was certified by the Board as the collective-bar-
gaining representative of the employees in the appropri-
ate unit. Notwithstanding that the Union represented
these unit employees, the Respondent on February 29
admittedly at a time it was refusing to recognize and bar-
gain with the Union granted its unit employees a 25-cent-
per-hour wage increase. This occurred despite the fact
the Respondent not only put it into effect unilaterally
and without first bargaining with the Union over the
wage increase but the Union, contrary to the Respond-
ent's assertions, had specifically refused the Respondent's
requests to put it into effect because the Union wanted
the subject of wages to be discussed in negotiations.
Under these circumstances, I find the Respondent violat-
ed Section 8(a)(5) and (1) of the Act by refusing to bar-
gain with the Union by unilaterally and without bargain-
ing with the Union granting its unit employees a 25-cent-
per-hour wage increase on February 29.
The remaining issue to be resolved is whether the Re-
spondent discriminatorily failed and refused to return the
discriminatees to their jobs.
Unfair labor practice strikers are entitled to immediate
reinstatement upon application even if replacements have
been hired. Atlas Metal Parts Co., Inc., 252 NLRB 205
(1980); and Mastro Plastics Corp., and French-American
Reeds Mfg. Co., Inc. v. N.L.R.B., 350 U.S. 270 (1956).
An employer's refusal to reinstate such strikers violates
Section 8(a)(3) and (1) of the Act. Southwestern Pipe, Inc.,
179 NLRB 364 (1969), enfd. in part and denied in part
444 F.2d 340 (5th Cir. 1971).
Serious acts of misconduct arising during a strike may
disqualify a striker from the Act's protection. Cornet Ca-
suals, Inc., 207 NLRB 304 (1973). The standard applied
by the Board is that an employee does not forfeit such
protection under the Act unless his conduct is so violent
or of such a nature as to render that employee unfit for
further service. Hawthorne Mazda, Inc., 251 NLRB 313
(1980).
While an employer may defend its action in disciplin-
ing an employee for strike misconduct by showing it had
an honest belief that the employee was guilty of strike
misconduct of a serious nature, such defense can be over-
come by showing that either the employee did not
engage in the conduct asserted or that such conduct was
protected. To establish an honest belief of misconduct,
however, requires specificity in the record linking partic-
ular employees to particular allegations of misconduct.
General Telephone Company of Michigan, 251 NLRB 737
(1980). See N.L.R.B. v. Burnup & Sims, Inc., 379 U.S. 21
(1964).
The findings, supra, establish that on May 27 the
Union engaged in a strike against the Respondent and
began picketing its premises. Prior to the strike not only
had the Respondent unlawfully granted its employees a
wage increase on February 29 as herein found, but as
subsequently found by the Board in Newtown Corpora-
tion, supra, the Respondent commencing on or about
April 10 had unlawfully refused to recognize and bargain
with the Union in violation of Section 8(a)(5) and (1) of
the Act. Following the April 10 meeting at which Presi-
dent Rose refused to sit down and negotiate a contract
and so informed the Union's representatives the employ-
ees held a meeting and approved a strike which occurred
the first workday following the May 23 meeting at
which President Rose again informed the Union's repre-
sentatives he could not sit down and negotiate a con-
tract.
The standard applied in determining whether a strike
is an unfair labor practice strike is whether it is one
cause "in whole or in part" by an unfair labor practice.
663
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Citizens National Bank of Willmar, 245 NLRB 389
(1979).
Here, based on the foregoing evidence, I am persuad-
ed, and find, that the May 27 strike from its inception
was caused by the Respondent's unfair labor practices in
unlawfully granting the employees a wage increase and
by unlawfully refusing to recognize and bargain with the
Union and therefore it was an unfair labor practice
strike.
The evidence, supra, further establishes that on June 2,
following the termination of the strike when the discri-
minatees, who were all unfair labor practice strikers,
made unconditional offers to return to work, they were
first informed they had been replaced but subsequently
sent letters dated June 2 terminating them, "on account
of your misconduct on the picket line and in support of
the strike in which you participated, or which conduct
you supported."
During the strike itself Vice President Rose had solic-
ited discriminatee James Thompson, Jr., to get the strik-
ers to return to work or be fired, and President Rose had
also solicited Thompson to get the employees to return
to work and told him they would either be terminated or
replaced if they did not.
The claim made by the Respondent that the discrimin-
atees had engaged in strike misconduct sufficient to war-
rant their discharges is unsupported by any probative
evidence. Having found that Junior Smith did not threat-
en Cecil Smith as alleged, no specific acts of misconduct
were shown to have been engaged in by any of the other
discriminatees.
Apart from the failure of the Respondent to specifical-
ly identify which discriminatees except for Junior Smith,
who it claimed had engaged in misconduct, there was no
credible evidence proffered to even establish any miscon-
duct, serious or otherwise, had occurred. The testimony
of the Respondent's own witness Supervisor Foster
failed to establish the pickets locked ingress and egress to
the Respondent's premises and it was not shown how or
what may have caused the unidentified driver and his
wife to feel threatened.
Absent as here any evidence showing the discrimina-
tees had engaged in strike misconduct, I reject the Re-
spondent's alleged reasons for terminating them. More-
over, I do not find sufficient evidence to show the Re-
spondent possessed an honest belief they had engaged in
any strike misconduct.
Based on the foregoing evidence, including the Re-
spondent's union animus as established by its unlawfully
granting the wage increase; its threats to discharge the
discriminatees while they were on the picket line for re-
fusing to return to work during the strike; the conflicting
reasons given for their terminations; and having rejected
the Respondent's defenses for their terminations, I am
persuaded, and find, that the Respondent on June 2 dis-
criminatorily discharged unfair labor practice strikers
Doug Begstead, James Thompson, Jr., Shelby Russell,
John Sensabaugh, Behrouz Sattery, Junior Smith, and
Roy Rogers because of their union activities thereby vio-
lating Section 8(a)(3) and (1) of the Act and the Re-
spondent's reasons given for these terminations were but
a mere pretext to concede the real discriminatory reason
herein found.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section
III, above, found to constitute unfair labor practices oc-
curring in connection with the operations of the Re-
spondent described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
CONCLUSIONS OF LAW
1. Newtown Corporation is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Teamsters Local 651, affiliated with the Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, is a labor organization within
the meaning of Section 2(5) of the Act.
3. All production and maintenance employees em-
ployed by the Employer at its 1401 Old Frankfort Pike,
Lexington, Kentucky, facility, including truck drivers,
litter pickers, maintenance men and traffic controllers,
but excluding all office employees and all professional
employees, guards and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act.
4. The Union is now, and at all times material herein,
has been the exclusive representative for the purpose of
collective bargaining of the employees in the aforesaid
unit within the meaning of Section 9(a) of the Act.
5. By unilaterally and without bargaining with the
Union granting its employees in the aforesaid unit a 25-
cent-per-hour wage increase, the Respondent has en-
gaged in unfair labor practices in violation of Section
8(a)(5) and (1) of the Act.
6. By discriminatorily discharging Doug Begstead,
James Thompson, Jr., Shelby Russell, John Sensabaugh,
Behrouz Sattery, Junior Smith, and Roy Rogers on June
2, 1980, because of their union activities, the Respondent
has violated Section 8(a)(3) and (1) of the Act.
7. The strike, which began on May 27, 1980, having
been caused by the Respondent's unfair labor practices
was an unfair labor practice strike.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices within the meaning of Section
8(a)(1), (3), and (5) of the Act, I shall recommend that it
cease and desist therefrom and take certain affirmative
action to effectuate the policies of the Act.
Accordingly, having found that the Respondent unilat-
erally effected changes in its unit employees' wages with-
out bargaining with the Union, it shall be ordered to
cease and desist from engaging in such conduct and from
664
NEWTOWN CORPORATION
any like or related conduct and, upon request bargain,
with the Union concerning the wage increase given to
the unit employees on February 29, 1980. Language will
also be included against construing the remedial Order as
requiring revocation of the wage increase granted the
unit employees on February 29, 1980.
The Respondent shall be ordered to offer immediate
and full reinstatement to Doug Begstead, James Thomp-
son, Jr., Shelby Russell, John Sensabaugh, Behrouz Sat-
tery, Junior Smith, and Roy Rogers to their former jobs
or, if those jobs no longer exist, to substantially equiva-
lent jobs, without prejudice to their seniority and other
rights and privileges and make them whole for any loss
of earnings and other compensation they may have suf-
fered as a result of the discrimination against them when
they were unlawfully discharged on June 2, 1980. Back-
pay is to be computed in the manner prescribed by the
Board in F. W. Woolworth Company, 90 NLRB 289
(1950), and with interest in accordance with Florida Steel
Corporation, 231 NLRB 651 (1977)."
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 12
The Respondent, Newtown Corporation, Lexington,
Kentucky, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Unilaterally instituting changes in wages, rates of
pay, hours, or other terms and conditions of employment
of its employees in the appropriate unit described below,
without first notifying and consulting with Teamsters
651, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America:
All production and maintenance employees em-
ployed by the Employer at its 1401 Old Frankfort
Pike, Lexington, Kentucky facility, including truck
drivers, litter pickers, maintenance men and traffic
controllers, but excluding all office clerical employ-
ees and all professional employees, guards and su-
pervisors as defined in the Act.
(b) Discouraging membership in, sympathies for, and
activities on behalf of Teamsters Local 651, affiliated
with the International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, or any
other labor organization, by discharging or in any other
manner discriminating against employees in regard to
their hire or tenure of employment or any term or condi-
tion of employment.
" See, generally, Isis Plumbinq & Heating Co., 138 NLRB 716 (1962).
12 In the event no exceptions are filed as provided by Sec 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order and all objections thereto
shall be deemed waived for all purposes.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Upon request, bargain collectively with the afore-
said Union as the exclusive bargaining representative of
the employees in the appropriate bargaining unit de-
scribed above, regarding the February 29, 1980, wage in-
crease given to the unit employees. However, no provi-
sion in this Order shall in any way be construed as re-
quiring the Respondent to revoke any wage increase
heretofore granted to its employees in the aforesaid unit.
(b) Offer immediate and full reinstatement to Doug
Begstead, James Thompson, Jr., Shelby Russell, John
Sensabaugh, Behrouz Sattery, Junior Smith, and Roy
Rogers to their former jobs or, if those jobs no longer
exist, to substantially equivalent jobs, without prejudice
to their seniority and other rights and privileges, and
make them whole for any loss of earnings and other
compensation they may have suffered as a result of the
discrimination against them herein found in the manner
set forth in that section of this Decision entitled "The
Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze and determine the amount of
backpay due under the terms of this Order.
(d) Post at is Lexington, Kentucky, facility copies of
the attached notice marked "Appendix." 3 Copies of said
notice, on forms furnished by the Regional Director for
Region 9, after being duly signed by the Respondent's
authorized representative, shall be posted immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the amended consoli-
dated complaint be, and hereby is, dismissed insofar as it
alleges unfair labor practices not specifically found
herein.
'" In the event that this Order is enforced b a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
665
DECISIONS OF NATIONAL IAO3R REI.ATIO)NS 13OARD
APPENDIX
Noricil To EMPlOYEI:S
POSTIAI) BY ORI)DER 01 HI
NATIONA LABOR REL.ATIONS BOARI)
An Agency of the United States Government
WI Wil.L NOT unilaterally institute changes in
wages, rates of pay, hours, or other terms and con-
ditions of employment of our employees without
prior notification to and bargaining with Teamsters
Local 651, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, in the following appropriate
unit:
All production and maintenance employees em-
ployed by the Employer at its 1401 Old Frank-
fort Pike, Lexington, Kentucky facility, including
truck drivers, litter pickers, maintenance men and
traffic controllers, but excluding all office clerical
employees and all professional employees, guards
and supervisors as defined in the Act.
WE WIl. NorT discourage membership in, sympa-
thies for, or activities on behalf of Teamsters Local
651, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, or any other labor organization, by dis-
charging or in any other manner discriminate
against the employees in regard to their hire or
tenure or employment or any term or condition of
employment.
WE will NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of their rights guaranteed in Section 7
of the Act.
WE WII.I., upon request, bargain collectively with
the aforesaid Union as the exclusive bargaining rep-
resentative or our employees in the appropriate bar-
gaining unit, described above, regarding the wage
increase granted to our unit employees on February
29, 1980.
WE WIL.L offer immediate and full reinstatement
to Doug Begstead, James Thompson, Jr., Shelby
Russell, John Sensabaugh, Behrouz Sattery. Junior
Smith, and Roy Rogers to their former jobs or, if
those jobs no longer exist, to substantially equiva-
lent jobs, without prejudice to their seniority and
other rights and privileges and WE WILL make them
whole for any loss of earnings and other compensa-
tion they may have suffered by reason of our discri-
minatorily discharging them, with interest.
NEWTON CORPORATION
666