Rasco, Inc.

National Labor Relations Board - Board Decisions

Jun 29, 1960

127 N.L.R.B. 1616 (N.L.R.B. 1960)

1616 DECISIONS OF NATIONAL :.,ABOR RELATIONS BOARD
Q. How far was this meeting from where you were standing?
A. I would say 200 yards.
Q. Did you hear what was going on?
A. No, sir. Just the appearance of a meeting and he instructing the boys
that congregated around his station wagon.
Q. Where were you physically when you wrote this?
A. In the guard house.
Q. It was after you observed this meeting then you went back and wrote it
up?
A. Yes, sir. In fact, I was in the guard house at the front gate most of time
observing or carrying out my business, or I might have been in the parking
area in the back, or in the alley there, wherever I was I would immediately
return and make up my report.
Respondent contends that this is a far cry from the situation where an employer
deliberately attempts to learn the identity of employees affiliated with the Union or
deliberately attempts through surveillance to interfere with, restrain, or coerce
employees in the exercise of their rights guaranteed under the Act. The Trial
Examiner agrees.
In view of the foregoing, the Trial Examiner recommends that the allegations of
the complaint to the effect that Respondent unlawfully engaged in surveillance of
union meetings be dismissed.
IV. ULTIMATE FINDINGS AND CONCLUSIONS
In summary, the Trial Examiner finds and concludes:
1. The evidence adduced in these proceedings satisfies the Board's requirements
for the assertion of jurisdiction herein.
2. International Brotherhood of Firemen and Oilers, AFL-CIO, is a labor organi-
zation within the meaning of the Act.
3. The evidence adduced establishes that Respondent refused reinstatement to
striking employees F. G. Clay, C. J. Dover, and W. L. Piper and suspended employee
James M. Fair and thereby violated Section 8 (a) (1) and (3) of the Act.
4. The aforesaid activities are unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
5. The evidence adduced does not establish that Respondent refused to bargain
in violation of Section 8(a)(1) and (5) of the Act.
6. The evidence adduced does not establish that Respondent violated Section
8(a)(1) and (3) of the Act by refusing to reinstate striking employees H. L.
Ragsdale, L. R. Gassaway, W. M. Newman, Richard Van Leer, G. B. Hood, G. F.
Childers, W. A. McDaniel, J. W. Davenport, H. M. Godfrey, James Davenport,
George Briscoe, J. D. Leer, R. B. Partain, L. M. Smith, Vernon M. Bishop, W. E.
Middleton, C. R. Davenport, Joel M. Lucas, F. M. Shy, D. M. McWaters, Silas
Fennell, V. A. Hale, K. Piper, C. C. Piper, T. R. Davenport, and Wynell Davis.
7. The evidence adduced does not establish that Respondent engaged in surveil-
lance in violation of the Act.
[Recommendations omitted from publication.]
Mineweld Company, Division of Rasco, Inc. and Alfred Bradley.
Case No. 14-CA-2081. June 29, 1960
DECISION AND ORDER
On December 31, 1959, Trial Examiner Leo F. Lightner issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in any unfair labor practices and
recommending that the complaint be dismissed in its entirety, as set
forth in the copy of the Intermediate Report attached hereto. There-
after, the General Counsel filed exceptions to the Intermediate Report
and a brief in support thereof.
127 NLRB No. 187.
MINEWELD COMPANY, DIVISION OF RASCO, INC. 1617
Pursuant, to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Bean and Jenkins].
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 Inter-
mediate Report, the General Counsel's exceptions and brief, and the
entire record in this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner to the extent consistent
herewith.'
The Trial Examiner found that Respondent did not violate the Act
by its discharge of the five complainants in this case. For reasons
given below, we agree with this conclusion.
Teamsters Local Union No. 347, herein referred to as the Union,
has represented certain employees of the Respondent, including the
complainants, since July 1957. On November 6, 1958, the Respondent
and Union orally agreed on a new contract which was subsequently
reduced to writing and signed by the parties. Their agreement pro-
vided for a wage increase retroactive to July 1, 1958, without specify-
ing when the retroactive pay was to be paid. This retroactive pay
was not paid by December 15, 1958, and on that date, in an attempt
to compel payment of such backpay, the five complainants did not
report for work. The Union's business agent urged them to return,
without success. He notified Respondent that the men were on an
"unauthorized walkout" and, on December 16, all five complainants
were discharged. The Trial Examiner found that by December 15
the oral contract of November 6 was reduced to writing and signed by
the parties thereto. The 1958 agreement between Respondent and the
Union, like their 1957 contract, permitted Respondent to discipline
employees responsible for strikes and work stoppages not authorized
by the Union.
On the basis of all the foregoing, it is clear, and we find, as did the
Trial Examiner, that the complainants engaged in an unauthorized
walkout on December 15. If, as found by the Trial Examiner, the
Respondent was privileged by contract with the Union to discharge
employees for such activity, it would follow that Respondent's dis-
charge of the complainants was not violative of the Act. We find that
a contract entitling Respondent to discharge employees for unauthor-
ized walkouts was in existence during the critical time herein. This
1 The General Counsel has excepted to credibility findings made by the Trial Examiner.
As it is the Board's established policy not to overrule a Trial Examiner ' s resolutions as
to credibility except where, as is not the case here, the clear preponderance of all the
relevant , evidence convinces us that the resolutions were incorrect , we find insufficient
basis for disturbing the Trial Examiner 's credibility findings. Standard Dry Wall Prod-
ucts, Inc., 91 NLRB 544 , enfd. 188 F 2d 362 (C.A. 3).
560940-61-vol. 127-103
1618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is so even if, contrary to the Trial Examiner's finding, no 1958 written
agreement was in effect at the time. For assuming the nonexistence of
such a contract, it appears from the record that either an oral contract
or another written contract authorizing Respondent to take disci-
plinary action against participants in an unauthorized walkout was
available to Respondent as of December 15, 1958. Thus, the 1958
written contract, whatever the date of its execution, was preceded by
the oral agreement arrived at on November 6, 1958. At the same time,
in the circumstances in which the parties found themselves prior to
November 6, as described in the Intermediate Report, the 1957 contract
between Respondent and Union was by its terms to continue beyond
the contract's terminal date of June 30, 1958, until such time as the
parties concluded another agreement 2 or abandoned negotiations for
one. As already indicated, both the 1958 oral agreement and the 1957
written contract, as well as the 1958 written contract, authorized Re-
spondent to discipline employees for unauthorized walkouts. In these
circumstances, we find that the Respondent's discharge of the com-
plainants for their unauthorized walkout was the exercise of a right
sanctioned by contract and therefore not a violation of the Act.
Accordingly, we shall dismiss the complaint.
[The Board dismissed the complaint.]
2 Whether , in the contemplation of the parties , this agreement had to be in writing
does not expressly appear.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding was heard before the duly designated Trial Examiner in Marion,
Illinois, on July 29 and 30 and August 19, 1959, on the complaint of the General
Counsel and answer of Mineweld Company, Division of Rasco, Inc., herein called
the Respondent . The issues litigated were whether the Respondent violated Section
8(a)(1) and ( 3) and Section 2(6) and (7) of the Labor Management Relations
Act, 1947. The parties presented oral argument and a brief filed by the Respondent
has been carefully considered.
Upon the entire record of the case , and from my observation of the witnesses, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Missouri corporation , maintaining its principal office and place
of business in St . Louis, Missouri , and various other places of business in the
States of Missouri and Illinois , including one at Marion , Illinois, with which we are
here concerned , and is engaged at said places of business in the manufacture, sale,
and distribution of oxygen, welding supplies , and related products . During the year
ending December 31, 1958 , Respondent caused to be purchased, transferred, and
delivered goods and materials valued in excess of $50,000 which were transported
to said places of business in interstate commerce directly from States of the United
States other than the States of Illinois and Missouri . I find that Respondent is
engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters Local Union No. 347, affiliated with the International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and Helpers of America, herein referred
to as the Union , is a labor organization within the meaning of Section 2(5) of
the Act.
MINEWELD COMPANY, DIVISION OF RASCO, INC.
M. THE ALLEGED UNFAIR LABOR PRACTICES
1619
A. Background; undisputed facts
The primary issue to be resolved is whether Respondent discharged Alfred Bradley,
James O'Brien, William Crain, Robert Swain, and Evans Dreimeyer on December
16, 1958, and thereafter failed and refused to reinstate said employees, in order to
discourage membership in a labor organization and because they engaged in con-
certed activities for the purpose of collective bargaining and other mutual aid
and protection and, as more fully enunciated in the complaint, and thereby engaged
in unfair labor practices within the meaning of Section 8(a) (3) and (1) of the Act.
That the individuals named were fired on the date specified and were denied rein-
statement is not disputed. It is essential to determine whether the dischargees were
fired for engaging in a protected concerted activity.
Respondent's principal place of business is located in St. Louis, Missouri. We
are here concerned solely with its facility at Marion, Illinois. Respondent was
engaged in the distribution of oxygen, both liquid and high compression (gaseous),
nitrous oxide, sulfur propane, puritan medical gases, electrodes, etc. Some of these
items were the product of Linde Company, others were the product of Lincoln
Electric Company. The business was competitive. Distribution was made to hos-
pitals and patients at home.
Linde Air Products Company, now Linde Company, at all times pertinent herein,
with exceptions noted below, delivered oxygen in the following manner. A truck
containing liquid oxygen and having a Cascade pump as part of its equipment went
from Evansville, Indiana, to the Marion, Illinois, facility of the Respondent on
Tuesday and Friday of each week. The liquid oxygen was then pumped through
the Cascade pump into high pressure tanks, being converted to a gaseous form, and
these "tanks" or "cylinders" were thereafter delivered to the customers of the
Respondent. Similar deliveries were made by the Linde Air Products Company
to another facility of the Respondent at Mapleville, Missouri. In May 1959 deliveries
by Cascade pumps at these two installations were discontinued and all deliveries
thereafter were made to the facility of the Respondent at St. Louis, Missouri. During
the period here considered, delivery of liquid oxygen to the Marion Memorial
Hospital was commenced.
The electrodes from the Lincoln Electric Company were delivered to customers
in 50-, 25-, and 10-pound packages.
Robert Swain and Evans Dreimeyer were employees described as "district truck
route salesmen" who drove 2-ton trucks delivering all of the products handled by
Respondent to its customers. They had a scheduled territory to cover on Monday
through Friday of each week. Alfred Bradley, Charging Party herein, was likewise
a "district truck route salesman." However, on Tuesday and Friday of each week
his duties were to stay at the Marion facility and assist in the conversion of the
oxygen from liquid to gaseous form by the filling of cylinders. While of no im-
portance here, the record does not clearly establish whether Bradley's deliveries were
confined to oxygen or included other medical supplies. William Crain prior to
July 1, 1958, or sometime shortly thereafter, was a "district truck route salesman."
Thereafter, until December 16, 1958, he was a "warehouseman." James O'Brien
was employed as a warehouseman at all times pertinent herein. The duties of the
warehousemen are described as keeping the warehouse, office, and restrooms clean,
placing stock in the warehouse and keeping it in order, filling orders from the ware-
house by delivering it to customers on a truck, filling oxygen cylinders twice a
week, and occasionally substituting for a routeman when there was some customer
he could not call on. These five employees constituted the entire unit represented
by the Union at the Marion facility of the Respondent.
On a date and under circumstances neither specified nor of importance herein
Respondent entered into a written collective-bargaining agreement with an un-
specified "Teamsters Local Union No.-" (apparently Local 347). This agreement,
by its terms, covered "route driver salesmen" (apparently synonymous with "district
route salesmen"), at some seven company facilities including Marion, Illinois.
This prior agreement by its terms became effective as of July 1, 1957, and by
its terms would have expired on June 30, 1958, except that it was extended as more
fully discussed below. Insofar as it is relevant and material herein, it appears that
this agreement was executed by the Union and the Respondent herein. I so find.
Commencing on an unspecified date in September or October 1958, the Union
and the Respondent held some six negotiating sessions terminating in an oral
agreement on November 6, 1958 . At this final negotiating session , all of the
560940-61-vol. 127-104
1620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
named employees were present except Robert Swain . Sam Trefts , secretary-treasurer
and business agent of the Union , was also present and conducted the negotiations
on behalf of the unit . Charles Absher, also a business agent for the Union, was
not present . Trefts undertook to reduce the agreement to writing and submit it for
signature , and it was thereafter so submitted and signed . The time of signing is
discussed below.
Comparison of the terms of these two written agreements , and the testimony in the
record, reflect:
The new agreement was for a period of 2 years commencing July 1, 1958, and
expiring June 30, 1960, unless extended as provided therein; effective July 1, 1958,
the rate for warehousemen was increased 25 cents per hour (to $2 per hour) and
effective July 1 , 1959, there is a further increase of 10 cents per hour ($2.10), the
rate base for district truck-route salesmen ( of no consequence here ) was modified
and the guarantee for these employees was increased $5 a week ( to $85 per week)
effective July 1, 1958, and an additional $5 per week ($90) effective July 1, 1959;
the new contract covers only the Respondent 's facility at Marion , Illinois; language
changes appear in article VII "Stewards and Seniority "; qualification for a 2-week
vacation with pay was reduced from a requirement of 3-year service to 2-year
service; a language change was made in article XIII "Unauthorized Work Stoppages";
a provision for 10 days' sick leave per year was added; provision that trucks shall
have hydraulic tailgates or other suitable lifts attached was also added . Except as
noted, or noted by reference , the provisions of the first 10-page agreement containing
17 articles all appear in the current 10-page, 17 -article, agreement.
Trefts testified that he prepared the written contract and the girls in his office
mimeographed it and "it contained the same terms as were verbally agreed to on
November 6-that is when the agreement was agreed to."
A Mr. Sondag is president and owner of Respondent. James McRoberts is busi-
ness manager of Respondent and maintains his office in St. Louis , Missouri. His
duties entail the handling of personnel , accounts receivable , records, credits, and
so on. The Marion facility is within his jurisdiction. He represented the Respondent
in its negotiations with the Union . William Puricellio is sales manager of the
Respondent at the Marion facility. He is and was in direct charge of all salesmen,
including route salesmen, and warehousemen at the Marion facility, assuming his
duties in connection with the warehouse approximately July 4, 1958. James
McRoberts and William Puricellio were acknowledged to be supervisors within the
meaning of Section 2(11) of the Act.
McRoberts ' testimony, similar to that of Trefts, was that the written agreement
contained only that which had been verbally agreed to on November 6, and "every
article in the written agreement was per our verbal agreement ." I so find.
The pay increases provided for in the new agreement were placed in effect and
were paid in the payroll period ending November 22, 1958. They were likewise paid
for the payroll period ending December 6, 1958. Payrolls were made up biweekly
and checks were issued and delivered on the Friday following the end of each pay
period, i e., the November 22 payroll was paid November 28, and the December 6
payroll was paid December 12.
The retroactive pay from July 1 , 1958, to and including November 8, 1958, was not
paid on or before December 12, 1958. The dischargees , upon failure to receive this
retroactive pay on December 12, determined to take precipitate action. In the
language of Bradley "after we had received our checks that night [December 12],
we five drivers decided not to report to work the following Monday morning, and
we believed that would force the Company into coming across with the pay."
No one from the Company was present and the Company was not advised of the
decision. Similarly the Union, the collective -bargaining representative , was not
notified or consulted . None of the five reported to work on December 15 or 16, 1958.
On December 16, 1958 , under circumstances more fully discussed hereafter, the
five employees were discharged.
B. The events of December 12, 15, and 16
Only Bradley and O'Brien , of the five named dischargees , testified herein. Each
testified that on December 12, after work, the five employees met on the parking lot
and discussed what they would do to try to bring the Company "into giving us our
backpay," and agreed that they would not report for work the next Monday,
December 15. None of the five did report for work on either December 15 or 16.
Neither the Union nor the Company was consulted or advised of the contemplated
work stoppage.
MINEWELD COMPANY, DIVISION OF RASCO, INC. 1621
On December 15, Charles Absher, business agent of the Union , advised McRoberts
by telephone (to St. Louis) "the fellows weren't working, they were on an unauthor-
ized walkout." 1
Bradley testified to a conversation with Absher on December 15 at which William
Crain aria James O'Brien were present. Absher advised them that McRoberts had
called him from St. Louis, and wanted to know what the trouble was. Bradley said,
"I told him the reason that I wasn't working because they had failed, we felt the
Company had an oral agreement to pay us our backpay which was effective July 1,
and trom November 6, up to the 12 [December] we had asked a couple of times
there at the office if they were intending to pay the backpay and they wouldn't give
us any answer." This meeting was after lunch on Monday, December 15, at the
home of Bradley. Bradley acknowledged that Absher advised them to return to
work, that the Union had not authorized the walkout.2 Bradley also testified that
Absher again advised them to return to work the following day. O'Brien's testimony
was to the same effect: on December 15 Absher advised him to return to work, and
the Union had not authorized the strike.
The five employees and Absher were all at the office of the Mineweld Company
on December 16 by about 8:30 a.m. William Puricellio, sales manager, and Alice
Benton, office girl, were present. The employees made no effort to go to work,
waited 40 minutes for the arrival of Business Manager McRoberts, then left. The
employees proceeded uptown to the office of J. C. Mitchell, attorney, for the purpose
of advising with him on their problem. Mitchell was not in and his secretary
requested that they return later. They returned to the Mineweld office between 10:30
and 11 am.
Abshei had advised McRoberts by telephone, the previous day, that the em-
ployees were on an "unauthorized walk out." Upon entering the Mineweld office,
the group was asked by McRoberts what the trouble was. Swain, steward for the
group, advised that they were not working because they had not received the backpay
(retroactive pay). Swain also advised that the group intended to get an attorney
to sue for the backpay. McRoberts "asked" the employees to return to work. In the
same conversation he explained to them that they had "helped" push this Company
to the wall and in view of all the trouble they had caused "we feel like we can no
longer tolerate such a condition" (other alleged prior misconduct is treated separately
hereafter). McRoberts also advised the men that the Company was operating on a
deficit and that he knew they were entitled to the money (retroactive pay) but the
Company was not in a position to pay it right at that moment . He further stated,
"I would suggest that you get back on your trucks, take care of your customers,
and as soon as Miss Benton gets the final figures on it, then we will handle it as soon
as we possibly can." The meeting broke up in an inconclusive manner with the
employees leaving for lunch .3
1 This is based on the testimony of McRoberts, whom I credit on this point. While
Charles Abshei testified, he was not questioned relative to the events recounted as occur-
ring on the dates enumerated in this subheading.
2 Bradley also testified, "I had talked to Sam Trefts about the Company's failure to pay
our backpay, the 12th " He further testified that he did not request the Union to
authorize a strike. In view of the entire record and particularly the testimony of Sam
Trefts I do not credit this testimony of Bradley insofar as it implies a conversation with
Sam Trefts on either December 12 or any date prior to and including December 16
Since I hereafter indicate acceptance of part and rejection of part of the testimony
of several of the witnesses, finding inconsistencies with the record as a whole or with other
portions of the testimony of the same witness, and in some instances apparent discrep-
ancies, faulty memories, and evident exaggerations, it may be appropriate here to note the
rule which has previously been stated that "it does not follow that simply because one
does not believe a particular thing to which a witness testified that everything he says
must then be rejected." Judge Learned Hand stated the rule thus:
It is no reason for refusing to accept everything that a witness says, because you
do not believe all of it, nothing is more common in all kinds of judicial decisions
than to believe some and not all. [N.L IZ.B. v Universal Camera Corp., 179 F. 2d
749 (C.A 2) ]
9I do not credit the testimony of O'Brien that 11IcRoberts said "that if we intend to
file suit for our backpay, we would all be through " The complete context of that testi-
mony being, "Mr. McRoberts said that we had put this company's back to the wall and
that they couldn't tolerate it any longer and that if we intended to file suit for our back-
pay, we would all be through and they were financially unable to pay the backpay."
Likewise, for reasons set forth immediately hereafter, I do not credit O'Brien's state-
1622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bradley testified that the five employees and Absher left and went to lunch. His
testimony is significant, and was, "We had separated, some went home for lunch, we
had talked about going on back to work or try to make them pay our backpay with-
out going back to work." The employees met about 1:15 p.m. Absher and Mc-
Roberts were in the restaurant, Absher came outside, "he advised us there wasn't
any use of talking with Mr. McRoberts any more, because he said he was having
our checks made out at this time." [Emphasis supplied.] Bradley and the other
four employees then went to the office of Attorney J. C. Mitchell and he advised them
to go to work and he would file suit for the backpay. They returned to the office
of the Mineweld Company about 2:30 p.m. and advised McRoberts that they were
ready to go to work, but reserved their right to file suit. McRoberts advised them
that they were too late, "Alice had their checks made out," and handed them their
checks.4
McRoberts, Puricellio, one employee from Mt. Vernon, and one employee from
Cape Girardeau were the temporary replacements. Thereafter, four other employees
were hired. There is a union-security provision in the agreement and these new
employees are members of Local 347.
C. The agreement relative to retroactive pay
The previous agreement of the parties, as more fully discussed below, provided
(article XVII) that under circumstances outlined therein it could expire on June 30,
1958, and if notice of desired modifications had been given and the "process of
bargaining in good faith for a new contract" was continuing and subsequently a
new contract was agreed upon, such modifications "shall be made retroactive to the
termination date of this contract."
The current contract, orally agreed upon on November 6, 1958, specifically
provides (article III) that the new rates for warehousemen (an increase of 25 cents
per hour) and the new rate for district truck route salesmen ($5 a week increase)
were "effective July 1, 1958."
As noted above, these increases were put into effect for the payroll period of
November 9 to 22, 1958, and all pay periods thereafter. We are therefore here
considering only the agreement for payment of the accrued amount for the pay
periods between July 1 and November 8, 1958.
Trefts' testimony was that after they had reached an agreement the question
came up of when the retroactive pay could be paid. "Mr. McRoberts said it
couldn't, the Company was in kind of a bad shape and probably couldn't get it out
for awhile and I said `we are not expecting it for the next payday.' " He further
testified, "Somebody mentioned something about Christmas and I said that would
make a nice Christmas present, could it be paid before Christmas9 And Mr. Mc-
Roberts said, `yes, I am pretty sure it can be. We would get it paid before Christ-
mas,' and that is the way we left." He was then asked, "Is that substantially every-
ment that McRoberts advised the employees they should all go to lunch and return to
work and he would drop the matter of their refusing to work It is particularly noted
that after this testimony O'Brien stated that he was giving his "opinion" and he was
unable to recite precisely what was said or the context
I similarly do not credit Bradley's testimony to the same effect. Bradley in relating
McRobert's comments stated, "McRoberts said that the Company didn't have the money,
that we had put the Company's back tip against the wall and that they couldn't stand
for that any more " It was not until he was later asked a direct question relative to
the suit (proposed) for backpay that he testified, "Air McRoberts said if that is the way
we felt about it, they would have to fire the whole bunch of us " I find this testimony
clearly at variance with the events which followed Similarly I do not credit Bradley's
testimony that "something was said about us, go ahead and eat lunch and then come
back to work." When asked who made the statement, he testified, "I believe Mr.
McRoberts did."
4I credit McRoberts' testimony that the decision to discharge the employees was made
on December 16, after he had requested them to return to work about 11 in the morning.
I similarly credit ,his denial that he told them to go to lunch and come back to work and
all would be forgotten. Absher's advice at 1 :15 p in that the checks were being prepared
and "there wasn't any use of talking with Mr. McRoberts any more" permits a reason-
able inference that the decision to discharge had been made at that time. This was at
a meeting preceding their second visit to the lawyer's office. It is further corroborated
by Bradley's testimony that when they returned to the Mineweld Company after lunch
"we could see our checks lying on the desk because we had been told they were made out
for us."
MINEWELD COMPANY, DIVISION OF RASCO, INC. 1623
thing you remember about any dates being mentioned ." He answered , "To the
best of my knowledge, the only date that I recall at all was that they would get it
before Christmas."
McRoberts acknowledged that Bradley brought up the date of December 12,
after checking the calendar, and McRoberts said then the Company would do
everything within its power to pay the employees this money before Christmas so
that they would have it for Christmas. He further testified that it would take at
least a week or possibly longer to complete the analysis of the figures, since the girl
had other duties, and that as soon as they had the figures and knew exactly the
amount and "just as quickly as can possibly get the money" then you will have
your checks. He denied that there was any date set or time specified.
I credit the recited testimony of Trefts and McRoberts and accordingly find that
there was no agreement to pay the amount due as retroactive pay on December 12 .5
D. Other reasons assigned for the discharges
McRoberts, in answer to a question of why he fired the employees on this par-
ticular day, testified, "We had been wanting to get rid of them for some time, but
to do so we were fearful of a strike which would close the place down. And we
were having a hard enough time in keeping the doors open as it was, so after this
came about I decided it was best to bring it to a halt." He then testified that he
had previously discussed the matter with Trefts and that Trefts thought he could
straighted them out. While Trefts testified there was no denial by him relative to
this statement.
McRoberts elaborated that the employees constantly ignored instructions of their
supervisor, Mr. Puricellio, that they would not take care of their equipment, that
they would not check their tires even though they were repeatedly requested to do
so, that there were tire blowouts as a result, and that customer accounts were lost
by reason of poor service. Other deficiencies were specified.
Specifically McRoberts and Puricellio testified that: The three truckdrivers, Brad-
ley, Swain, and Dreimeyer, left their trucks in a constant dirty condition, i.e., failing
to keep the windshield clean and failing to sweep out the cab which had candy
wrappers and other debris, failed to check the tires for air pressure causing blow-
outs; Dreimeyer and Swain would deliver merchandise and fail to make out a sales
ticket reflecting the location of the delivered merchandise (Bradley was distinguished
from the other two in that most of his deliveries were oxygen while the other two
carried a number of itemized miscellaneous items); O'Brien was habitually late in
reporting for work, his reporting time being 7:30 and he actually reporting fre-
quently between 7:45 and 8:15; Dreimeyer, Bradley, and once in awhile O'Brien,
would take extended coffee breaks of 15 to 30 minutes in the morning; and some
of the drivers would report in as early as 2:30 and 3:30 on occasions and leave,
although they were supposed to work until 5 p.m. and were supposed to seek new
accounts when time permitted. McRoberts acknowledged that some of these com-
plaints or conditions continued for periods from 6 months to 2 years prior to the
discharges. He acknowledged that he had issued no warnings or reprimands, stating
that he was not their supervisor. Puricellio stated that he had requested the drivers
to check the tires and make out sales slips on a number of occasions and grew tired
and gave up. Relating these complaints to the last 3 months of employment,
McRoberts testified variously that he had been in Marion three times in that
period, and at a different point in his testimony he testified he was there as much
as 3 weeks in the period of 3 months and had personally observed a number of
these deficiencies.
General Counsel presented no evidence to dispute or contradict these assertions.
However, it appears fruitless to engage in any evaluation of this evidence. The
Board and the courts have held that an employer may discharge an employee for
a good reason , a bad reason , or no reason at all, so long as the reason for firing
was not a reason proscribed by the Act.
a The testimony of Bradley was that the question of backplay came up at the meeting
of November 6 He testified, "I believe Trefts said we will give you until Christmas.
I asked McRoberts, I said-the 12 of December, would be the last payday before Christ
mas I said how about paying it on the 12th, and McRoberts said that would be fine."
O'Brien's testimony was that Trefts suggested that it be paid before Christmas and that
Bradley then mentioned December 12 and the latter date was agreed upon. Considering
all of the evidence in the entire record while crediting this testimony insofar as it re-
lated to Trefts' suggestion that the money be paid before Christmas, I do not credit the
testimony of Bradley and O'Brien that McRoberts had agreed to pay it on December 12.
1624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It should be noted, nevertheless, that while the instances may furnish some back-
ground or underlying motivation for the discharges, McRoberts acknowledged that
there was no discussion of these complaints on December 16.
-E. The collective bargaining agreement; effective date; date of execution
General Counsel contends that there was a meeting of the minds and intention
that the wage increases agreed upon November 6 would become effective and
payable at the next payroll period,6 and the accumulated pay from the date of
July 1, 1958, would be paid to the employees prior to Christmas. He further con-
tends that at no time during the meeting of November 6 did the parties specifically
agree that the other provisions of the contract would become effective before
signed by the parties.
The prior collective-bargaining agreement, the first between the parties, by its
terms could have expired June 30, 1958; however, other contingencies are mentioned
in article XVII which is the "termination" clause. That is, where notice of reopen-
ing for desired modification or notice of termination is given and subsequent agree-
ment is not reached prior to the end of the 60-day period of such notice or the
expiration of the contract, whichever is later, and where parties are bargaining in
good faith, it was the clear intent of that agreement that its terms and provisions
would be continued in full force and effect until there was a new agreement or a
termination of negotiations. Absent evidence to the contrary, these provisions
might well have carried the old agreement through the period of bargaining here.
However, on April 25, 1958, the Union did give notice of termination. It appears
that thereafter Respondent requested and the Union granted extensions through
August 31, 1958, but not thereafter?
That there was a complete meeting of the minds on the terms of the new agree-
ment on November 6, 1958, does not appear disputed. Both McRoberts, for the
Respondent, and Trefts, for the Union, acknowledged that the written agreement
(Respondent's Exhibit No. 6) embodies what was orally agreed upon on November
6, and that no modifications were made thereafter. I so find.
While I have found that the oral agreement was reached on November 6, 1958,
and later reduced to writing and signed by the parties, the contentions herein
suggest the necessity and desirability of determining the approximate time that
the written contract was, in fact, executed.8 McRoberts, whom I credit on this
point, testified that it was signed sometime before November 22. He was un-
questionably vague as to when between the 6th and the 22d it was actually signed,
attributing his vagueness to an inability to recall precise dates and the fact that he
had contracts for a number of different installations of the Company. He was,
however, not vague on the proposition that "it had to be around that time because
we wouldn't have started paying any rate if the contract had not been signed."
The payroll sheets made up for the period ending November 22 and the checks
paid to these individuals on November 28, for the payroll period from November 9
to 22, included the pay increases provided for in the contract. These payroll sheets
also indicate payment for Armistice Day, as a holiday, as provided for in the
contract. I have found above that the previous contract similarly providing that
Armistice Day was a holiday had expired. In addition, when these five employees
received their paychecks on December 12, the pay period was the 2-week period
ending December 6 and there remained only 1 week of work for which they had
not been paid. They did not work on December 15 or 16, but the checks drawn
on the 16th were for 2 weeks' pay and the reason for the 2 weeks' pay, testified to
by McRoberts, was that the contract provided for 1 week's notice or 1 week's
severance pay. McRoberts' testimony was that he and Trefts executed the agree-
ment in the office of the Mineweld Company in Marion, Illinois, and that the office
0 Both Bradley and O'Brien were asked if there was anything specifically agreed to
as to when the wage increases would become effective and both testified that they took
it for granted that the increases would be in their paycheck but neither remembered any-
thing being said about it.
7 However, I find that the parties continued operating under the provisions of that
agreement until the new agreement was entered into. Cf. Web Chang Corporation,
124 NLRB 1170.
8 The date of execution of the written contract is set forth as November 6, 1958 The
contract begins • "This agreement, dated this 6th day of November, 1958, . . " It ends :
"In Witness Whereof, the parties hereto have signed and executed this ., the day
and year first above written " The effective date is contained in article XVII, "This
agreement shall be effective as of the 1st day of July, 1958, . . .
MINEWELD COMPANY, DIVISION OF RASCO, INC. 1625
girl was present . In addition , what was apparently intended as a supplement to
the agreement under date of November 19, 1958, signed by Sam Trefts and ad-
dressed to Jim McRoberts (Respondent 's Exhibit No. 10 ) reads in part:
Teamsters Local No. 347 has a contract with the Mineweld Company of
Marion , Illinois, effective July 1, 1958, to and including June 30, 1960.
Thereafter provision for reopening is recited . In view of all this evidence and the
reasonable inferences to be drawn therefrom , I find that the written agreement was
in fact executed sometime prior to the payday of November 28, 1958. I further
find that it was the clear intention of the parties that the agreement was to be
effective as of the date of the oral agreement , November 6, 1958, and by its terms
was effective from the ostensible date of the expiration of the previous agreement on
July 1, 1958.9
Attached as page 11 of the agreement , actually an appendage , is a "Reopening
Agreement," by its terms permitting a reopening upon 30 days ' notice for (A) "cost
of living," or (B) and (C) "operational problems." This exhibit is signed only by
the Company . There is also a letter from the Union signed by Sam Trefts, union
secretary-treasurer , to the Company , dated November 19, 1958, acknowledging the
existence of the reopening agreement , although the language is at some variance, with
the provisions of page 11 of the agreement.
F. Contract provisions
The agreement, among other articles, contains the following:
Article XIII-Unauthorized Work Stoppages
It is understood and agreed that the Union shall have no financial liability
for acts of the employees covered by this agreement which are unauthorized
and which the Union cannot control. It is agreed, however, that in the event
of any such unauthorized action the Union shall, upon receiving notice thereof
from the Company (to be immediately confirmed in writing), order the em-
ployees to return to work, if there should be a work stoppage, and within
twenty-four (24) hours address a letter to the Company notifying the Company
that the action of the employees covered by this agreement is unauthorized. In
order that the Company may be apprised of the officer of the Union in power
to authorize strikes, work stoppages or actions which will interfere with the
activities required of employees under this contract, notice is hereby given
that only the Secretary-Treasurer of the Union has the power or authority to
authorize any such actions or give the orders or directions necessary to carry
out such actions.
The Company shall be privileged to discipline employees responsible for
such unauthorized activities without violation of the terms of this agreement,
subject, however, to the grievance and arbitration provisions of this agreement.
Article XIV-Disputes and Arbitration
1. "Should any disagreement arise between the parties hereto concerning the
construction or application of this agreement which cannot be adjusted between
them, it shall be submitted to arbitration."
2. The method of selection of arbitrators is specified, followed by a provision
that the majority decision shall be "final and binding upon the parties and
enforceable by court action."
4. "There shall be neither strike nor lockout during the period of time the
matter is in arbitration."
9 I have above found that the oral agreement of November 6 and the written agreement
are identical. The testimony of Sam Trefts and Charles Absher to the effect that the
written agreement was not signed until December 29, 1958, at a meeting with Mr. McRob-
erts and others in Marion, Illinois, is rejected The undisputed testimony that Absher,
on December 15, described the strike as "unauthorized" would appear to relate to the
contract provision on that subject It appears also that the Company did advise the Union
of a desire to reopen in order to discuss the contemplated conversion by Linde Air Prod-
ucts Company of deliveries of liquid oxygen to St. Louis, Missouri, which would reduce
the requirements of manpower at the Marion facility, from five men to four men.
While Trefts asserted impartiality in this matter, his demeanor belied that posture.
While asserting the contract had not been signed prior to December 29, Trefts acknowl-
edged the Respondent had given him notice of a desire to reopen pursuant to the reopen-
ing provision.
1626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I have found above that Absher, business agent of the Union, advised McRoberts
on December 15 that the failure of the men to report for work that morning was
an unauthorized work stoppage. While Trefts, secretary-treasurer and business
agent of the Union, as well as Absher was called as witness by the General Counsel
and both testified, neither was questioned on this point. McRoberts' testimony that
he was so advised stands undenied. I have also found above that both Bradley and
O'Brien acknowledged that they advised neither the Company nor the Union of the
contemplated work stoppage, nor had they sought the Union's authorization.
Absher, on December 15, advised the employees to return to work, without avail.
That the Union was the collective-bargaining representative is undisputed. No re-
quest for arbitration appears in the record.
Articles XIII and XIV are in pare materia. There can be no question they are
material provisions of the collective-bargaining agreement. It is equally clear that
these provisions were intended to require the parties to refer grievance disputes to an
arbitration panel and to preclude them from using any other means for their resolu-
tion. The unambiguous language of the contract extends to the Respondent the
privilege "to discipline employees responsible for such unauthorized [work stoppages]
without violation of the terms of this agreement."
Respondent urges that the provisions of the arbitration clause of the contract are
equivalent to a no-strike provision. The Board has held, under similar circum-
stances, that the parties bound themselves by the contract to accept final decision of
the arbitration panel, if a grievance ever reached that stage; that in no way can it
be said, therefore, that either the grievance procedure or the arbitration were to
any extent elective or advisory; rather they constituted the parties' agreed-upon
substitute for all other methods for resolving disputes subject to the grievance and
arbitration procedure. The provisions were equated as a no-strike clause. The
Board further held that if employees may effectively call upon the Board to protect
them when they arbitrarily breach clear and binding arbitration clauses of this
kind, and turn to the use of economic force for the settlement of grievances rather
than to the contractual, quasi-judicial procedure, the effect will be to discourage the
making of, and adherence to, contractual arbitration procedures. W. L. Mead, Inc.,
1.13 NLRB 1040, 1043 It appears, and I find, that the undertaking of the parties,
as expressed in the contract provisions referred to, constituted the equivalent of a
no-strike clause.io
G. Concluding findings
General Counsel has urged that at the time of the unconditional offer to return
to work by the five named employees on December 16, Respondent had not hired
permanent replacements to take their jobs and that they were therefore entitled to
return to their jobs since they had been engaged in a protected concerted activity
for their mutual benefit. This contention presumes the existence of facts not
found herein. More importantly, it is predicated upon the nonexistence of the
contractual provisions recited above. I have found that there was but one agree-
ment, orally agreed upon on November 6, and memorialized and signed sometime
before November 28, and its terms were therefore in full force and effect on De-
cember 15. The agreement provided that the pay increases were effective as of
July 1, 1958, but contained no provision for the payment of the accrued retroactive
pay. The latter, I have found, was the subject of a separate oral agreement, also
made on November 6, that the retroactive pay would be paid before Christmas, as
agreed to by the authorized representative of these employees. Necessarily, such
payment could be made on any date on or prior to December 24. The strike ac-
cordingly was in violation of the collective-bargaining agreement , in derogation of
the rights of the collective -bargaining representative, and precipitate action to obtain
the retroactive pay contrary to the oral agreement for its payment.
Respondent contends that there was good cause for firing the employees entirely
aside from the strike, that the men had not been fired earlier, because of Respondent's
fear of a strike, that the contract contained the equivalent of a no-strike clause, and
accordingly the strike was unprotected concerted activity for which it had a right
to discharge them. In view of all of the evidence herein, I have found it purposeless
to evaluate the "good cause" for discharge aspects which preceded the work stoppage.
However, it is appropriate to note the absence of evidence of animus toward the
Union on the part of Respondent, except such as might reasonably be inferred
from these discharges.
"See also W. L. Mead, Inc. v. Teamsters, 230 F. 2d 576 (CA. 1) ; United Construc-
tion Workers v. Haislip Baking Company, 223 F. 2d 872 (C.A. 4) ; Gay's Express, Inc. v.
Teamsters Local Union No. doh, 169 F. Supp. 834 (1959).
MINEWELD COMPANY, DIVISION OF RASCO, INC. 1627
Section 13 of the Act provides that nothing therein "shall be construed so as
either to interfere with or impede or diminish in any way the right to strike, or to
affect the limitations or qualifications on that right." The limitation on the right
of the employees to strike in the case at bar arises not from the Act, but from the
contractual provisions which had been agreed upon between the Respondent and
the Union. The contract limits the liability of the Union to work stoppages which
were authorized, and permits the Respondent to take disciplinary action as to those
employees "responsible for" such unauthorized activities without violation of the
terms of the agreement. The agreement further provides that in the event of any
disagreement arising between the parties concerning the construction or application
of the agreement, the matter should be referred to arbitration and that there should
be no strike or lockout during the period of arbitration. I have found that the
provisions of the agreement constitute a "no-strike" undertaking.
The Supreme Court has said: "Respondent rightly understood that the men
were irrevocably committed not to work in accordance with their contract. It was
at liberty to treat them as having severed their relations with the company because
of their breach and to consummate their separation from the company's employ by
hiring others to take their places. The Act does not prohibit an effective discharge
for repudiation by the employe of his agreement, any more than it prohibits such
discharge for a tort committed against the employer."" The Court held that such
conduct by the Respondent did not constitute an unfair labor practice under the Act.
More recently, the Board found that to hold that a strike in furtherance of such
a material breach of a clear and binding contractual arbitration clause is to be
protected would be contrary to the labor policy embodied in the National Labor
Relations Act as interpreted by the courts of appeals and the Supreme Court. In
so holding, the Board said: "The language of the Act, its declaration of policy, and
its legislative history make it very clear that the bargaining duty placed upon employ-
ers and labor organizations has for its purpose the making of collective-bargaining
agreements which should be binding upon the parties and employees." W. L. Mead,
Inc., 113 NLRB 1040, 1043. See also, Mid-West Metallic Products, Inc., 121 NLRB
1317; American Gilsonite Company, 121 NLRB 1514. The Board has held that an
employee who was discharged for attempting to induce a work stoppage, in violation
of a contract which banned work stoppages, was not engaged in a protected activity
under the Act, and his discharge, therefore, was not a violation of the Act. Victor
Chemical Works, 125 NLRB 278.
Respondent further urges that the action of the dischargees was without the sanc-
tion of the Union, that it was a wildcat strike and, hence, an unprotected concerted
activity for which the employees may be fired without further reason. I see little
purpose in extending this report on this point. The Board has held that where
employees acted in derogation of the authority of the exclusive bargaining agent,
the concerted activity for which they were discharged was not protected under the
Act and provided no basis for finding an 8(a)(3) violation of the Act. Dazey
Corporation, 106 NLRB 553, 554. See also, N.L.R.B. v. Draper Corporation, 145
F. 2d 199 (C.A. 4); Douds v. Local 1250, Retail Wholesale Department Store Union
of America, CIO (Oppenheim Collins & Co.), 173 F. 2d 764, 769 (C.A. 2). I have
found, from the testimony of the two dischargees, that the union business agent
advised them the strike was unauthorized, and further advised them to return to
work, all of which was disregarded.
General Counsel contends that Respondent "condoned the employees' participation
in the strike by telling them they could return to work." Respondent urges that the
principle of condonation has no application to the facts herein, which I now succinctly
review.
An unauthorized work stoppage commenced December 15 and continued on
December 16. About 10:30 or 11 o'clock on the 16th, the five dischargees, Union
Business Agent Absher, and Respondent's Business Manager McRoberts, met at
Respondent's Marion office. During the ensuing conversation McRoberts "asked"
the employees to return to work. In the same conversation he explained to them
that they had "helped" push this Company to the wall and in view of all the trouble
they had caused "we feel like we can no longer tolerate such a condition." He
further stated: "I would suggest that you get back on your trucks, take care of your
customers, . ..." The meeting terminated inconclusively. Bradley testified to a
separate subsequent meeting just before lunch, of the five dischargees, "we had talked
about going on back to work or try to make them pay our backpay without going
'IN L R.B v. Sands Manufacturing Co., 306 U.S. 332, 344. See also, Fafnir Bearing
Co., 73 NLRB 1008; Scullin Steel Company, 65 NLRB 1294; Joseph Dyson & Sons, Inc.,
72 NLRB 445.
1628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
back to work." At the end of this same lunch period Absher advised the dischargees
"there wasn't any use of talking with Mr. McRoberts any more, because he said
he was having our checks made out at this time." This was about 1: 15 p.m. It was
not until 2:30 or 3 o'clock that the employees, after consulting a lawyer, returned
to the company office and advised of a willingness to return to work, were advised
it was too late, and were given their checks.
General Counsel has cited Plasti-Line Incorporated, et at., 123 NLRB 1471, in
support of his contention. The facts in that case are clearly distinguishable. There
the Board adopted the Trial Examiner's findings that the strikers did abandon the
strike and returned to work, after an offer of condonation, and thus complied with
the terms of the offer. The Board, in effect, held that the Employer could not
thereafter fire these employees for having engaged in the strike, and thus abrogate
its offer of condonation.
Similarly the facts here are distinguishable from the facts in other prior decisions
involving the condonation or waiver principle. They are set forth in the footnote to
indicate the limitation on application of that principle.12
The effect of the attachment of a condition to an offer of condonation, and the
failure of employees to meet such condition is illustrated by Fafnir Bearing Company,
supra. The Union called a strike in violation of a no-strike agreement on October 15.
On October 18, Respondent, by letter, advised union officers and shop committeemen
that unless they disclaimed participation in the recommendations (for a strike) or
(strike) action, and disassociated themselves therefrom, and offered to resume work-
and so notified Respondent by October 20-they would be terminated. Having
received no response, the Respondent sent notices of termination on October 22.
Thereafter, in an effort to terminate the strike, the Respondent offered to take back
these strike leaders, and offered other concessions, all of which were turned down
by the Shop Committee. The Board found the Respondent had a right to, and did,
discharge the eight union leaders for their participation in such a strike.
The most that can be said of the offer of condonation, herein, is that its was
coupled with an implied condition that the men return to work forthwith. This con-
dition they did not meet. In fact, as Respondent has noted in its brief, they did not
meet the condition of their own version, which I have not credited, "that they should
go to lunch and then return to work." It thus appears, and I find, that the employer
did seek unsuccessfully to prevail upon the employees to return to work forthwith,
during the morning conference. Being unsuccessful, he set about to promptly dis-
charge them. The principle of condonation has no application under these facts.
That the Employer moved promptly to effect the discharges is undisputed. At
1:15 p.m. Absher told the dischargees McRoberts had advised him that checks were
being prepared. They were discharged upon their return.
In view of the above findings, it is my conclusion that this record does not contain
the preponderant evidence needed to establish discriminatory terminations within
the meaning of the Act. Accordingly, I recommend that the complaint be dismissed
in its entirety.
On the basis of the foregoing findings of fact and upon the entire record herein,
I have reached the following:
12 In Alabama Marble Company, 83 NLRB 1047, enfd. 185 F. 2d 3022 (CA 5), cert
denied 342 U.S 823, the Board held the employer had waived or condoned the dischargees'
misconduct in causing a work stoppage in breach of a no-strike clause by permitting them
to return to work without reserving the right to take disciplinary action against those
participating in the work stoppage
In E A. Laboratories, Inc, 80 NLRB 625, the Board found an unconditional offer
of the employer to reinstate strikers constituted a waiver or condonation of the strikers'
alleged misconduct in engaging in the strike in violation of contractual obligations.
In Clearfield Cheese Company, Inc, 106 NLRB 417, enfd. as mod. 213 F. 2d 70 (CA 3),
the Board applied the principle of condonation where the employer "failed at all oppor-
tunities to mention as a reason for not reemploying his employees their unlawful conduct
during the strike, and, in fact, affirmatively indicated at the time of their application for
reinstatement, and thereafter, that be would reinstate them to available jobs " In this
case the Board reaffirmed its position that the condonation principle is applicable where
the strikers engage in conduct which is unprotected, but is inapplicable where the em-
ployees have participated in a strike which is unlawful from its inception The Board
stated it will apply this principle to those cases which involve either (a) violence or other
similar conduct during the course of otherwise lawful, albeit not always protected, con-
certed activity ; or (b) participation in concerted activity, which the Board for policy
reasons holds to be unprotected.
SHEET METAL WORKERS INT'L ASSN., AFL-CIO, ETC. 1629
CONCLUSIONS OF LAW
1. The Respondent , Mineweld Company, Division of Rasco, Inc., is engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of the Act.
3. The Respondent has not engaged in unfair labor practices as alleged in the
complaint within the meaning of Section 8(a) (3) and (1) of the Act.
[Recommendations omitted from publication.]
Sheet Metal Workers International Association , AFL-CIO, and
Robert Byron , Its General President, and Edward F. Carlough,
Its General Secretary -Treasurer, and Alfred J. Mosher, Its
International Representative ; Local No. 70, Sheet Metal Work-
ers International Association, AFL-CIO, and W. O. Frost, Its
Business Manager, and Lloyd Kenney , Its Recording Secre-
tary, and Robert J. Kidney , Its Business Agent; Local No. 65,
Sheet Metal Workers International Association , AFL-CIO,
and Clarence Desch, Its Business Agent, and J. R. Dietz, Its
Financial Secretary and Treasurer , and Alton Page, Its Busi-
ness Agent ; and Local No. 98, Sheet Metal Workers Inter-
national Association , AFL-CIO, and Ross A. Boggs, Its Busi-
ness Agent, and Clifton Deangulo, Its Assistant Business
Agent; and Local No. 58, Sheet Metal Workers International
Association, AFL-CIO, and Edward M. Hickey, Its Business
Agent and The Burt Manufacturing Company. Case No.
8-CC-68. June 30, 1960
DECISION AND ORDER
On February 13, 1959, Trial Examiner William F, Scharnikow
issued his Intermediate Report in the above-entitled proceeding, find-
ing that certain Respondents had engaged in and were engaging in
certain unfair labor practices and recommending 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 Ex-
aminer further found that the remaining allegations of the complaint
were not supported by the evidence and should be dismissed. There-
after, exceptions were filed by the Locals, the International, the
General Counsel, and Burt; and briefs were filed by the Locals, the
International, and the General Counsel. Pursuant to special leave of
the Board, further briefs were filed by the International, the Locals,
the General Counsel, and Burt with respect to the impact on this case
of Section 8 (e) of the Landrum-Griffin Act.
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 Inter-
127 NLRB No. 182.