Sunbeam Lighting Co., Inc.

National Labor Relations Board - Board Decisions

Apr 23, 1962

136 N.L.R.B. 1248 (N.L.R.B. 1962)

1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Decision and Direction of Election, urging that the petition herein
should be dismissed because Petitioner's president had been convicted
of violating Section 302 (b) of the Labor Management Relations Act
.of 1947.
The Board has', considered the record and the request for review.
For the reasons set forth in Alto Plastics Manufacturing Corporation,
136 NLRB 850, which presents a virtually identical issue, the Board
hereby affirms the Regional Director's Decision and Direction of
Election.
Accordingly, the case is hereby remanded to the Regional Director
for further proceedings consistent with this Decision.
Sunbeam Lighting Company, Inc. and Richard J. Reynolds.
Case No. 13-CA-3717. April 23, 1962
DECISION AND ORDER
On October 14, 1960, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent has engaged in and is engaging in certain unfair labor
practices within the meaning of Section 8(a) (1) and (3) of the Act
and recommending that it cease and desist therefrom, as set forth in
the Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report, a supporting brief, and
a request for oral argument.' The General Counsel also filed a brief
in support of the Intermediate Report.
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-
i As the record , including the exceptions and briefs , adequately sets forth the issues and
the positions of the parties , the request for oral argument is hereby denied
2 The Respondent excepted to the Trial Examiner 's rulings denying Respondent's pre-
liminary motions for a bill of particulars and written interrogatories In addition, Re-
spondent contends that by virtue of various of the Trial Examiner 's rulings and by certain
specified conduct engaged in by the Trial Examiner during the bearing, the Respondent
was deprived of its right to a fair hearing . We find no merit in these exceptions. As to
the motion for a bill of particulars , it appears that the complaint sufficiently specified
the conduct which was alleged to be violative of the Act and that during the hearing
Respondent was fully aware and advised of the General Counsel's contentions. See
N L R B. v Express Publishing Company, 312 U S. 426, 431-432 (1941 ) Similarly, the
motion for written interrogatories appears to have been sought merely to make more
specific that which was already clear and sufficiently well pleaded in the complaint Of
Kiekhaefer Corporation, 127 NLRB 1381 , footnote 1. As to the contention that Respondent
was denied a fair hearing , we are satisfied , upon our scrutiny of the entire record, that
the Trial Examiner 's desire not to have the hearing unduly prolonged and his rulings con-
fining the Respondent ' s presentation of evidence to the matters in issue did not prejudice
Respondent ' s position on the record or constitute a denial of due process See Liberty
Coach Company, Inc., 128 NLRB 160. Finally, Respondent assigns as error the Trial
Examiner's refusal to allow the Respondent the opportunity to elicit testimony as to cer-
tain striker misconduct which would allegedly have disqualified them for reinstatement,
136 NLRB No. 107.
SUNBEAM LIGHTING COMPANY, INC. 1249
mediate Report, the exceptions and briefs, and the entire record in this
case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations insofar as consistent with this Decision and
Order.
In mid-February 1960, International Brotherhood of Electrical
Workers, AFL-CIO (herein called IBEX`' or the Union), was certi-
fied as the collective-bargaining representative of the Respondent's
employees. The employees in the unit thereafter appointed five em-
ployees 3 to act as their union bargaining committee for purposes of
meeting with the Respondent in an attempt to work out a contract'
Employee Reynolds was chairman of this committee and Lee, the
IBEW representative, was the spokesman.5
Prior to negotiations with the Respondent, Lee and the union com-
mittee prepared a proposed contract which they submitted to the
employees for approval, at which time the employees instructed the
committee and Lee, by means of a vote, as to the amount of wage in-
crease and retroactive pay to be sought. Thereafter beginning some-
time in April 1960, the Respondent met with the committee and Lee
in an effort to reach agreement.
During the period of the negotiations, the employees in the unit fre-
quently questioned various members of the employee bargaining com-
mittee concerning the progress of negotiations. Thus, it is established
that after each meeting with the Respondent, the members of the
committee were approached and, in response to specific inquiries by
the employees, relayed information as to what had transpired during
the preceding bargaining session. Of particular interest to the em-
ployees was the question of retroactive wages and pay increases and,
by the time of the walkout on May 3, 1960, employee dissatisfaction
had increased considerably because no firm decisions had been reached
in the negotiations as to these matters.
On May 2, 1960, a bargaining session was scheduled and held. Just
prior to the meeting, Lee met with and talked to Reynolds, the em-
as well as the Trial Examiner 's rejection of the Respondent 's offer of proof thereon.
Because Respondent did not contend that it either discharged or refused to rehire the
strikers for reasons of alleged misconduct , we find no error in the Trial Examiner's rul-
ings. Upon thorough consideration of the Respondent 's offer of proof, and assuming the
alleged matters had been established by competent testimony , we are satisfied that noth-
ing contained therein could be construed as constituting conduct so flagrant as to render
the strikers unfit for further service or otherwise to constitute a forfeiture of their right
to reinstatement ; this is "particularly" so where, as here, "the respondent' s refusal to
reemploy these . . . employees . . . was not based on their misconduct but on their un-
willingness to abandon the strike earlier ." Puerto Rico Rayon Mills, Inc., 117 NLRB
1355, 1357-1358.
6 The employees on the committee were Reynolds ( the Charging Party), Penn , Cleek,
Mullins, and Evans.
* The Respondent and the General Counsel so stipulated during the hearing. It is thus
clear that the committee, as well as Lee, was authorized to act on behalf of the Union.
Such an arrangement is quite customary and implies no "split-representative."
6 Reynolds ' testimony to this effect was uncontradicted Although Reynolds further
testified that the Respondent was not informed that he was the committee chairman, this
cannot in any way affect his position or status.
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployee chairman of the committee. Reynolds informed Lee that the
previous week, when Lee was out of town, the employees were so dis-
satisfied with the way negotiations were proceeding that they were
going to walk out the next day, April 28, 1960, but that he (Reynolds)
had dissuaded them from taking such action by telling them "that Mr.
Lee, our union representative was out of town . . . and that it Was
utterly impossible to get in touch with him, to wait until the meet-
ing . . . after the meeting because We had no representation. . .."
Lee then gave Reynolds his telephone number in Chicago with instruc-
tions to "call me if anything happens." Later that day, during the
negotiations, the employees' attitude was again called to the Respond-
ent's attention 6 in the following conversation between Lee and Re-
spondent's counsel, Mr. Goodman:
Mr. Lee was talking with Mr. Goodman, and he says, "We got
to get to the wages and retroactive pay today. They are getting
awful impatient." "In fact the paint department was going to
walk out Thursday and Mr. Reynolds told them that I was out
of town, and they are awful impatient." And Mr. Goodman said
to Mr. Lee, "1171io did you say was going to walk out?" And Mr.
Lee said, "The Paint Department." "Well," he said, "if they were
to walk out, they might just as well keep walking, because they
would have lost their jobs." And Mr. Lee responded, "Well, if
you would lose twenty or thirty men of your key men out there,
you would have a heck of a time running your plant."
At this May 2 meeting, the Respondent presented its "final" con-
tract proposals Which "the committee and our representative, Mr. Lee,
was supposed to take . . . back to . . . the employees . . ."' The
Respondent was told at this time that although the proposal would
be submitted to the employees, it was doubtful whether they would
accept it.8 Lee suggested to the committee members that they not
reveal the terms of the Respondent's offer until all the employees
were together at the contemplated meeting.' It appears that at the
conclusion of this meeting Lee returned to his office in Chicago-ap-
9 It is uncontradicted that something prior to the walkout on May 3, 1960, Mr. Weisbart,
one of the owners of Respondent, approached Reynolds and asked how negotiations were
proceeding ; that Reynolds told weisbart that "they weren't going very good" because the
employees were interested only in wages and retroactive pay and Mr. Goodman, Respond-
ent's counsel and one of the negotiators, seemed to be avoiding that ; and that the em-
ployees "were getting impatient." In response, Mr. Weisbart told Reynolds that he would
talk to Mr Goodman
"Penn, a member of the committee, testified to this effect. There as, in fact, no dis-
agreement that the employees could accept or reject the Respondent's offer.
8 There is some disagreement as to whether this statement was made by Lee or by some
member of the committee. In our opinion, the only relevant fact is that the statement
was made, and this is undenied. Which representative of the employees made it is
immaterial.
8It is clear that this was merely a suggestion, not binding on the committee and was so
viewed by the committee.
SUNBEAM LIGHTING COMPANY, INC. 1251
proximately 75 miles from the Respondent's premises-and made no
further appearances at the plant thereafter.
Notwithstanding Lee's suggestion of secrecy, during the morning of
the next day (May 3) news of the Respondent's "final" offer and the
outcome of the preceding day's meeting spread among the employees.
Thus, Cleek, a member of the committee, testified that sometime be-
fore 8 a.m. on May 3 he was asked by three employees how the negotia-
tions had progressed the previous day. After Cleek told these em-
ployees the content of the Respondent's proposals and that this was
the "final" offer, one of the employees said, "They ought to walk out."
Similar testimony was given by Reynolds, who stated that sometime
between 9 and 10 a.m. that morning approximately five employees ap-
proached him at his place of work and told him that because the em-
ployees were dissatisfied with the Respondent's contract proposals with
respect to wages and retroactive pay, there was going to be a walkout
at the 10 a.m. work break.10
At 10 a.m. on May 3, approximately 75 to 80 employees in a unit
totaling about 120 walked out of the plant. Although this was the
customary time for the employees' 10-minute work break, they had
rarely left the plant during these breaks, most of them spending the 10
minutes in the plant. On this occasion, however, the employees who
left the plant carried their lunch pails and their coats with them,
thus indicating their intention not to return at the end of the period.
When Reynolds saw the substantial number of employees outside the
plant, he told employees Cleek and Mullins, who were also members of
the committee, that "It looks like they are walking out on strike. I
am going to call Mr. Lee." Reynolds then called Lee in Chicago and
reported that 75 to 80 employees had walked out. Lee merely told
Reynolds to call the CIO hall and arrange a meeting for 7:30 p.m.
that night, which Reynolds thereupon did. Reynolds left the plant
and joined the walkout at approximately 10: 20 a.m., at which time
there were still approximately 75 to 80 employees outside the plant."
Reynolds informed the workers who were outside that there was to be
a union meeting that night.
Meanwhile, some of the Respondent's supervisors, on instructions of
Respondent, circulated among the striking employees telling them to
"come back to work, or their cards would be punched and they would
be considered as voluntarily quitting" because they had left the plant
10 Reynolds further testified that between 7 : 30 and 8 a.m on May 3, before the em-
ployees started work, a large number of employees approached him and asked about the
preceding day's bargaining It is also clear from the record that other members of the
committee received similar inquiries from various employees
n Reynolds ' testimony to this effect was uncontradicted The only other statement in
the record as to this is a "concession" by the Respondent 's attorney that 51 employees
remained out after the end of the work break , hardly sufficient to rebut Reynolds ' direct
testimony as to the larger number.
641795-63-vol. 136-80
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
J
without permission in violation of the Respondent's rule. Approxi-
mately 30 employees returned to work. Reynolds saw some of the em-
ployees drifting back to work, one and two at a time, after the bell
rang. Work was resumed at about 11 a.m. Approximately 51 em-
ployees remained outside the plant.
At approximately 6:20 p.m. on May 3, Reynolds received the fol-
lowing telegram from Lee :
In discussing the current sitiation [sic] at Sunbeam with our
,Sixth District International Office it was decided to inform the
members of the negotiating committee that until further notice,
there will be no further union or negotiating meetings while the
unauthorized work stoppage continues.
The union meeting was held at 7:30 that evening as scheduled and
was attended by all the strikers. Reynolds read the above telegram to
them, and they voted unanimously to return to work the next morning.
In the meantime the Respondent prepared and mailed termination
letters to those employees who had refused to return to work. The
substance of these letters was that these employees had left their work
without permission and by such action had voluntarily quit.
The next morning, May 4, the striking employees, who had not yet
received the termination letters, appeared at the plant at the regular
reporting time ready for work. They were met by the plant super-
intendent, who informed them that they would not be permitted to
work, that they had terminated themselves when they walked out the
previous day, that the company had mailed letters to them to this
effect, and that their checks would also be mailed to them. One em-
ployee asked permission to get his coat, but was told that he could not
enter the plant for anything and his coat would be brought to him.
Although the evidence is not explicit with respect to what tran-
spired from May 4 to 9, it appears that the Respondent closed its
plant on May 5 and did not reopen it until May 12. On May 9, the
IBEW assigned Conway, another union representative, to meet with
the Respondent. Thereafter, Conway discussed the situation with
the Respondents' representatives in an effort to get the Respondent to
reopen the plant and take back the striking employees. Through ex-
changes of correspondence and negotiations, the Respondent agreed
to "reemploy" certain of the employees, and as of the date of the
Intermediate Report it appears that 37 of the approximately 51 em-
ployees who had remained out on May 3 had been "rehired."
The Respondent's basic contention, in which our dissenting col-
leagues find merit, is that the walkout was a "wildcat" strike, that its
effect was to undermine the status of the employees' certified bargain-
ing representative, and that the strikers therefore were engaged in
unprotected activity which deprived them of the benefits of the Act.
SUNBEAM LIGHTING COMPANY, INC. 1253
This contention is clearly not supported by the evidence or any in-
ference to be drawn therefrom. Rather, on the basis of the above
facts, we agree with the Trial Examiner that the employees who
participated in the walkout on May 3 were engaged in protected, con-
certed activities within the meaning of Section 7 of the Act. This is
not a case where the designated bargaining agent has taken some final
action which is within its sole authority and the strike action of the
employees is the result of dissatisfaction with their chosen bargaining
representative and is taken for the purpose, or has the effect, of bring-
ing pressure upon their representative to take some different action.'2
The employees participated in the initial formulation of the contract
demands made on their behalf and had the right of final approval or
rejection of any tentative agreement reached. Lee's action in stating
that the Respondent's "final" offer would be taken back to the em-
ployees is merely in accord with this procedure and cannot be said to
indicate his own satisfaction with the terms.13 The Respondent was
thus informed, if it did not know beforehand, that employee approval
was necessary 14 and was made aware at that time, whether by Lee or
some member of the employee committee is immaterial, that it was
unlikely that such approval would be forthcoming.15 Accordingly,
the employees' action on May 3 was merely a privileged expression of
12 See, e g, N L R B v Draper Corporation , 145 F. 2d 199 , 204 (C A 4), denying en-
forcement of 52 NLRB 1477 ( union agreed to postpone negotiating meeting to new date
and employees struck to compel earlier meeting ) , Harnischfeger Corporation v N L R B ,
207 F 2d 575 (CA 7), denying enforcement of 103 NLRB 47 (walkout because of dis-
satisfaction with the manner in which the union negotiating committee was bargaining
and "to take charge of and direct the action of their chosen . . . representative") ,
Plasti-Line, Inc, et at v N L R B , 278 F 2d 482 ( CA 6), denying enforcement of 123
NLRB 1471 (contract had already been executed and pay issue, with which the employees
were concerned , was in process of being handled under terms of contract , but employees
walked out because of their dissatisfaction with the manner in which the union was
handling that issue).
13 The dissenting opinion is in error insofar as it implies that Lee's referral of the tenta-
tive agreement to the employees and/or the employees ' rejection thereof is evidence of
bad-faith bargaining by the Union . Nor would we find any such evidence in the circum-
cumstances of this case even if Leed had been dissatisfied with the Respondent's pro-
posal and had recommended disapproval thereof by the employees
14 Compare N L R.B. v. Draper Corporation , supra, at 204 , where the court stated:
"When the union was selected by the employees and recognized by the company as bargain-
ing agent, st uas understood and agreed on all sides that bargaining with respect to wages,
hours and conditions of work would be carried on between the union and the company in
accordance with the above quoted statutory provision , that the employee8 would acquiesce
in action taken by the union and that they would not undertake independent action with
respect to the matters they had committed to it as their authorized agency. Not only
did the company agree to bargain only with the union, but the employees agreed to bar-
gain only through the union " [Emphasis supplied ] No such understanding or agree-
ment can be inferred from the facts in the instant case.
15 Contrary to the implication of our dissenting colleagues , neither Penn nor Mullins
testified as to whether Lee made any statement with respect to the possibility of the
employees accepting the proposal , and therefore their testimony in no way contradicts
that of Reynolds and Cleek on this matter . On tl;e facts of this case and the total absence,
as set forth below, of any dissidence within the employee committee or among the em-
ployees in the unit , we can only construe Lee's suggestion that the terms of the Respond-
ent's proposal be kept secret as being motivated by his fear that the employees would
strike as they had threatened and his desire to prevent such a walkout if at all ppssible.
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their dissatisfaction with the Respondent's offer 16 and was an attempt
to secure greater concessions from the Respondent to and through
their bargaining representative. The fact that this expression of
their views occurred prior to the formal submission of the terms for
their acceptance or rejection has no impact on the objective of their
action. To hold otherwise would make the time rather than the
object the controlling factor in determining whether a strike is pro-
tected or unprotected. For it appears clear that if the employees had
formally expressed their rejection of the proposals at the projected
union meeting and then struck to secure higher wages and more retro-
active pay, there would have been no question but that their action was
protected and was directed toward putting lawful economic pressure
on their employer. We fail to perceive why an earlier expression of
their rejection of the Respondent's offer is invalid, although their later
action would be valid.
Furthermore, the Respondent was well aware of the temper of the
employees and the imminence of strike action, as a result of Lee's
discussion with Attorney Goodman of May 2.17 In fact, Lee's state-
ment at that time is in the nature of a threat of strike action over the
two pay issues, and any inference of union approval of a strike which
Reynolds may have drawn therefrom was entirely reasonable. More-
over, Goodman's response that if the employees walked out they would
have lost their jobs, made as it was in a context which at least implied
union approval of such a walkout, is clear evidence of discriminatory
animus toward employees who might engage in protected strike ac-
tion."' The Respondent was also aware, when the walkout did occur
on May 3, that this was the employees' answer to the Respondent's
"final" offer, which was subject to their approval.19
Far from the employees' action here having the effect of undermin-
ing their bargaining representative, the stoppage was in support of
their representatives' demands on the employees' behalf. There is a
total absence of any evidence that the strike action was prompted by
any one person or group or by anything but the spontaneous reaction
of the employees to the Respondent's offer as the word of it spread
16 It is not the Board's function to determine whether the employees' dissatisfaction was
reasonable or unreasonable Our sole duty in this case is to decide whether they utilized
a valid means of expressing their dissatisfaction.
17 In any event, failure to notify an employer in advance that a strike may or will occur
does not render the strike unprotected if it is otherwise protected activity. J A Bentley
Lumber Company, 83 NLRB 803, at 811, footnote 13, enfd 180 F. 2d 641 (C.A. 5).
's Lock Joint Tube Company, 127 NLRB 1146, 1147. Cf. N.L.B B v Draper Corpora-
tion, supra.
19 We agree with the Trial Examiner that the affidavit of Respondent's works manager,
Carl Conrad, constitutes an admission against interest. Mr. Conrad therein stated, inter
alia, " . . [the foremen] told me that tltie men were not going to return to work because
they were dissatisfied with the terms of the contract" and "There is no question in my
mind but that these men walked out because they were dissatisfied with the contract pro-
visions. It is my opinion that everyone knew that this was the reason why the men
walked out "
SUNBEAM LIGHTING COMPANY, INC. 1255
through the plant. Nor is there any evidence of any disagreement
among the employees on the subject of wages or of any dissatisfaction
with the conduct of their representatives. Accordingly, there is no
basis for any finding that there was a dissident group in existence in
this unit which was acting apart from or in opposition to the desig-
nated representative.20 The members of the Committee clearly sought
to act with other members of the committee and in consultation with
the union representative. Thus, they consulted among themselves
concerning the rumors of a possible strike, and Reynolds kept Lee
informed of the sentiment of the employees at all times and telephoned
to Lee in the presence of two other committee members to report im-
mediately when he realized that a walkout had in fact occurred. In
our opinion, Reynolds' inference of union approval of the strike was
entirely reasonable from Lee's failure immediately to advise the em-
ployees to return to work and his instruction to call a meeting that
night.21 We note further, that Reynolds was acting on Lee's instruc-
tions in calling the meeting and reading Lee's telegram, and that it was
Reynolds whom Lee had asked to call him if the employees did strike
and to whom Lee sent the May 3 telegram.
Finally, even if less than a majority of all the employees partici-
pated in the strike, that fact does not necessarily remove the strike
from the protection of Section 7.22 However, here, in fact, a majority
20 Cf N L R B v Draper Corporation, supra; Hariusch feger Coi poi ation v. XL B B
supra , Western Cartridge Company v NLRB , 139 F 2d 855 (C A 7).
21 Penn in his testimony attempted to create the impression that the committee had been
told previously that any walkout would be "an illegal strike" and that lie reminded
Reynolds of this prior to the walkout Thus, he testified that Reynolds told him about
9.50 a.m that there would be a walkout at 10 a m , whereupon he (Penn) "asked him
if-if we would get by with it, walking out, an illegal strike . . And they [apparently
the Union] informed us that if anyone walked out it would be an illegal strike " IIow-
ever, Penn testified on cross-examination that he knew the strike was illegal because Lee
had told him so when he ( Penn ) telephoned Lee the morning of May 3 at 10 30 a in As
Penn could hardly have relied at 9:50 on what he was told at 10.30, his testimony as to
his entire conversation with Reynolds is palpably unbelievable . Our dissenting colleagues
apparently prefer to ignore Penn's testimony that the Union was his source of infornia-
tion that the strike was "illegal " In further contradiction of his alleged statement to
Reynolds, Penn testified that immediately after his conversation with Reynolds at 9'50
he was asked by the tool-and-die maker " ' is this an illegal strike'" and I said,
'No, it isn't' " Accordingly, we cannot accept Penn's testimony Nor is any statement
which Lee may have made to Penn almost halt an hour after Reynolds' conversation with
Lee any indication of what Lee said in the conversation with Reynolds we note that
even by Penn's testimony Lee did not tell Penn in their telephone conversation that
Reynolds had been informed that the strike was not sanctioned by the Union Moreover,
it is most unlikely that Reynolds would have waited until 7B0 that evening to report to
the employees that the Union did not back the strike if lie had been so informed that morn-
ing On the contrary, in view of Reynolds' pattern of restraining the employees from
striking the week before and of cooperating with Lee in all respects, the only reasonable
conclusion is that if Reynolds had been informed of the Union's disapproval of the strike
he would have acted immediately to advise the strikers of the Union's position. Nor is
Reynolds' testimony that he walked out because lie "thought the Union was in back of
the strike" contradictory of any of his other statements inasmuch as lie clearly did not
join the strike until 10 : 20 a in , after the work break was over and after his conversation
with Lee
22 See , e g, Vogue Lingerie, Inc, 123 NLRB 1009, 1011, enfd. as modified in other re-
spects, 280 F 2d 224 (CA. 3), where the Board found a stoke to be protected although
only 30 out of 200 employees participated.
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the employees actually participated in the May 3 walkout and re-
mained out for some period of time after the end of the work break'23
thereby dispelling any motion that although they took their lunches
and coats with them they left the plant only for the purposes of leisure
and untended to return within a few minutes. Indeed, it is reasonable
to assume that, but for the Respondent's statements to the strikers
that unless they returned immediately they would be considered as
voluntarily quitting, the 30 employees who did return would have
remained out with the other strikers.
In sum, based on the above, we find that the strike of the employees
was not for an improper objective and did not have the effect of under-
mining the designated bargaining representative, but, rather, was for
the purpose of strengthening the status of their union committee and
its spokesman by impressing upon the Respondent their support of the
bargaining position taken by them. Such conduct thus complemented
and supported the demands made on the employees' behalf during
negotiations and, as found by the Trial Examiner, constituted "con-
certed activities for the purpose of collective bargaining" expressly
protected by Section 7 of the Act.24
The Respondent also contends that the strikers never made an un-
conditional offer to return to work, and therefore it did not refuse to
reinstate them on May 4,25 as alleged by the General Counsel and found
by the Trial Examiner. It does not appear from the record that any-
one specifically requested reinstatement on behalf of the strikers on
May 4 or thereafter. Nevertheless, the strikers did appear at the
plant ready for work at the regular reporting time on May 4, and it
must have been apparent to the plant superintendent that they sought
to return or he would not have found it necessary to tell the employees
that they could not go to work. Under these circumstances, we find
that the employees made a sufficient effort to return to work uncondi-
tionally, that this effort satisfied the requirement that they make
unconditional application for reinstatement, and that any further
request for reinstatement would have been futile.26 It is thus clear that
the Respondent terminated the employees on May 3 and refused to
23 This finding is based on the uncontradicted testimony of Reynolds See footnote it,
supra
24 Cf United Grinding Service, Inc, 118 NLRB 67
25 The Respondent further asserts that the striker2 w ere not discharged on May 3 but
had voluntarily terminated their employment by walking out in violation of a plant rule
against leaving work without permission We find this position clearly without merit
Such a rule cannot be applied so as to abrogate the statutory right of employees to engage
in lawful concerted activities United Grinding Service, Inc , supra , at 76. The Respond-
ent alleges that the Trial Examiner erred in excluding evidence of alleged picket line mis-
conduct and contends that the strikers should not be eligible for reinstatement because
of that misconduct We affirm the Trial Examiner 's rejection of the proffered evidence
in view of the statement by the Respondent ' s counsel during the hearing that none of
the employees were refused reinstatement because of the alleged misconduct See Merydale
Products Company, Inc , 133 NLRB 1232 , Puerto Rico Rayon Mills, Inc, 117 NLRB
1355, 1357
26 Cf Montex Drilling Company , 122 NLRB 139 , 140-141.
SUNBEAM LIGHTING COMPANY, INC. 1257
reinstate them on May 4 because they engaged in concerted activity
which we have found was protected. Accordingly, we find, in agree-
ment with the Trial Examiner, that the Respondent discharged the
strikers on May 3 and refused to reinstate them on May 4 in violation
of Section 8(a) (3) and (1) of the Act.
Contrary to the view expressed by our dissenting colleagues, the
facts of this case present no conflict for the Respondent between the
duties imposed by Section 8(a) (5) and (3), nor are we imposing any
penalty on the Respondent for failing to accede to the strikers' de-
mands. We are not here ruling on the validity of the demands or on
the Respondent's obligation to accept them. Rather, We are consider-
ing only the Respondent's right to punish its employees for insisting
that additional concessions be made to their bargaining representa-
tive.21 In our view, the employee conduct here is the equivalent of a
group of employees asking their employer for a wage increase and
being discharged for making such a request."' This Respondent has
no obligation to grant the request of his employees, but he is not
privileged to punish them for making the request.
Accordingly, we shall order that the Respondent remedy its un-
fair labor practices in the manner recommended in the Intermediate
Report.
ORDER
Upon the entire record in this case and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Sunbeam Light-
ing Company, Inc., Gary, Indiana, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in and activities on behalf of Inter-
national Brotherhood of Electrical Workers, AFL-CIO, or any other
labor organization, by discharging, refusing to reinstate, or in any
other manner discriminating in regard to hire, tenure, or any term or
condition of employment of its employees.
(b) In any other manner interfering with, restraining, or coercing
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist any labor organization, to bar-
gain through representatives of their own choosing, and to engage in
any other concerted activities for the purpose of collective bargaining
M We agree with our dissenting colleagues that "Unless the employees . . were engag-
ing in protected activities, the Respondent ' s action in discharging them cannot be con-
sidered as [nonpermissible ] 'punishment "" Our conclusion herein is in accord with this
statement . For, having found that the strike was protected activity, we further find
that the employees ' discharge for engaging in such protected activity was not permissible
and was violative of the Act
as See Latex Industries, Incorporated, 132 NLRB 1.
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or other mutual aid or protection, or to refrain. from any and all
such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer the 13 individuals listed in Appendix C of the Inter-
mediate Report, attached hereto, immediate and full reinstatement to
their former or substantially equivalent positions without prejudice
to their seniority or other rights and privileges in the manner set forth
in the section of the Intermediate Report entitled "The Remedy."
(b) Make whole all of the aforesaid individuals, and the 37 in-
dividuals listed in Appendix B of the Intermediate Report, attached
hereto, for any loss of pay they may have suffered as a result of the
discrimination against them in the manner set forth in the section of
the Intermediate Report entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports, and
all other records necessary to determine the amounts of backpay due
under the terms of this Order.
(d) Post at its plant in Gary, Indiana, copies of the notice attached
hereto marked "Appendix." 20 Copies of said notice, to be furnished
by the Regional Director for the Thirteenth Region, shall, after being
duly signed by Respondent's authorized representative, be posted by
it immediately upon receipt thereof, and be maintained by it for a
period of 60 consecutive days thereafter in conspicuous places, in-
cluding all places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure that said
notice is not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Thirteenth Region, in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
MEMBERS RODGERS and LEEDOM, dissenting :
Our colleagues have concluded that a walkout by 50 of Respond-
ent's employees constitutes protected concerted activities entitling
them to reinstatement and backpay. Although they recognize that
at the time of the walkout the Respondent was engaged in bargaining
for a contract with a recently certified union, our colleagues conclude
that the walkout did not derogate from the status of this union.
Upon our consideration of the entire record in this case, we do not
believe their conclusion can be supported by a preponderance of the
evidence.30
21 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order "
20 This is not a case in which the Trial Examiner's findings are entitled to great weight
because they are based upon demeanor involving personal observation of witnesses Sig-
SUNBEAM LIGHTING COMPANY, INC. 1259
The basic issue in the case is whether the walkout on May 3, 1960,
was ft protected concerted activity or whether it was a "wildcat strike."
The evidence will support no finding other than that the walkout was
It "wildcat strike," for nowhere does it appear that the IBEW, the
employees' certified bargaining representative, either called, author-
ized, or sanctioned the walkout 31 Our colleagues do not come to
grips with this point. Rather, they erroneously reached the conclu-
sion that a five-man employee committee including Reynolds, the
Charging Party, was somehow endowed with an attribute of union
authority and qualified to act in its stead on behalf of the employees.
Thus, for example, they refer to Reynolds as "chairman of the
employee-bargaining committee." Reynolds, however, was only one
of five employees on the committee; the Trial Examiner did not find
that he was the chairman; and no one, other than Reynolds, testified
that he or anyone else was chairman. Indeed, on toss-examination,
Reynolds admitted that the Respondent was never informed of his
alleged chairmanship, that Lee, the IBEW representative, was the
sole spokesman on behalf of the Union, and that Lee carried on all the
negotiations with Respondent. Thus, if anyone were authorized to
call a walkout, it would be Lee, and not Reynolds or some committee,
however characterized, which was not the certified representative.
But our colleagues do not say that Reynolds called the walkout.
Rather, they erroneously concluded that at the May 2 bargaining
session just preceding the walkout, Lee "warned" the Respondent
that a walkout might take place, and that this warning somehow
justified Reynolds' belief that the IBEW was calling for a strike. If
one considers only the testimony of Reynolds such a conclusion might
be warranted. However, our colleagues ignore the testimony of Penn
and Mullins, two employees who were also on the employee bargaining
committee and who were present at the May 2 session. Both these
witnesses testified that after receiving the Respondent's contract pro-
posals, Lee told the Respondent that its proposals would be submitted
to the employees at a membership meeting to be held the following
Thursday, May 5,1960 32 At the same time, however, and in the pres-
nificantly , nowhere in the Intermediate Report does it appear that the Trial Examiner
considered the conflicting testimony of the parties' witnesses and nowhere was any attempt
made to resolve credibility Although the Trial Examiner's failure to resolve credibility
may, in some circumstances, afford the Board greater leeway in its consideration of the
record , it cannot be gainsaid that under Section 10 ( c) of the Act, the Board ' s findings
must be based upon no less than a preponderance of the testimony taken at the hearing
As will be noted hereafter , our colleagues ' findings are based, almost exclusively , upon the
testimony of but one witness-Reynolds, the Charging Party-to the exclusion of other
credible and contradictory testimony.
"NL.R.B. v. Draper Corporation, 145 F 2d 199 ( C.A. 4). See also Harnischfeger
Corporation v. NLRB , 207 F . 2d 575 (C A 7)
12 Our colleagues find that at the time Lee agreed to take the Respondent's contract pro-
posals back to the employees, Lee stated "that he doubted if the employees would accept
[them] " Our colleagues then conclude that this statement constituted a "go ahead"
signal for the strike Aside from the fact that Lee never appeared as it witness at the
hearing, it is doubtful whether Lee actually made this statement in view of the fact that
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ence of Respondent's negotiators , Lee, according to Penn and Mullins
told the members of the employee committee that the contract pro-
posals were going to be presented to the membership at the May 5
meeting "and that the Union Committee was not to discuss or disclose
what had been agreed upon until that meeting was held." Thus,
rather than conveying an impression to the committee that a strike
would be called, Lee's conduct more reasonably appears to be that of
a prudent negotiator who, in good faith, was attempting to prevent
the employee committee from encouraging dissident employee re-
action until Respondent' s proposals could be fully deliberated at the
future meeting 33
As to the actual walkout on May 3, the majority appears to believe
that it "commenced through a spontaneous act on the part of the em-
ployees to assert their legitimate interests." Here again our colleagues
fail to consider other relevant testimony. Thus, about 9:45 a.m., on
May 3, 1960, Penn was told that Reynolds wanted to see him. Penn
approached Reynolds and was told by Reynolds that there was to be a
walkout at 10 a.m. Penn testified : "Well, sir, I asked him if-if we
would get by with it, walking out, an illegal strike, since I was on the
committee . And they informed us that if anyone walked out it would
be an illegal strike. So Mr. Reynolds made the statement that if we
got everyone out, that the company would not fie [sic] them, dismiss
them." 34 Thus, although the idea of staging a walkout may have
been spontaneous, when it initially occurred, to some of the employees,
the bargaining appears to have been conducted in good faith, that Lee, as the employees'
bargaining representative , agreed to take the Respondent 's proposal back to the member-
ship, and that no evidence of any kind was introduced to show that Respondent's pro-
posals were such as to warrant Lee's or the employees ' dissatisfaction Moreover , Cleek,
another member of the employee bargaining committee , who was present at the May 2
session, was asked who made the statement which our colleagues attributed to Lee. Cleek
testified. "I don't know , it was one of the members of the bargaining committee It
might have been Mr. Lee himself , I am not sure" [ Emphasis supplied.]
Evidence that someone "might" have said something is insufficient to establish that
the statement was, in fact , made And, contrary to our colleagues ' suggestion at foot-
note 8, saps a, even if the statement was made, we believe it is essential to our colleagues'
conclusion to show that it was made by Lee. For if the statement is relied upon to in-
dicate that the walkout was being implicitly approved, such approval would have sig-
nificance only if it conies from Lee, the authorized agent of the employees ' certified
bargaining representative The defect in our colleagues ' approach is that nowhere have
they shown union authorization for the employees ' walkout, and we cannot see how this
defect can be cured by showing that some employee , whether identified or not, attempted
to supply the approval through a statement.
m Further evidence that Lee had not called for or otherwise created the impression that
he sanctioned strike action is the fact that of the five members of the employee committee,
all of whom were present at the May 2 bargaining session , only Reynolds and Cleek actu-
ally walked out The remaining three members-a majority of the committee--chose not
to participate in the walkout
This testimony of Penn 's as to what Reynolds told him before the walkout , which is
not discredited , should be contrasted with other testimony given by Reynolds. Some
2 weeks after the walkout , at a meeting between Reynolds , the Respondent, and a new
IBEW representative , Reynolds was asked why he walked out on May 3 Reynolds testified
that be answered : "Well , I am not positive , but I think I told him that after-after the
telephone conversation with Mr Lee , the IBEW Representative , I thought that the Union
was in back of the strike, the walkout, and after seeing all those men outside , I-went out
SUNBEAM LIGHTING COMPANY, INC. 1261
early in the morning on May 3 the walkout itself, occurring some 21/2
hours later, could hardly be called spontaneous. Rather, it would
seem that Reynolds, for some reason not revealed by the record, ac-
tively sought to muster the employees and stir them to walk out at the
10 a.m. work break. And in this activity Reynolds persisted, even up
to 15 minutes before the work break was to begin, despite the fact that
Reynolds knew that the Union had not authorized and was not back
of the strike. (See supra, footnote 34.)
The majority also erroneously concludes that the strike was not
merely minority action but rather that a majority of the employees
(75 to 80 in a unit of 120) initiated the action and remained out even
after a work break ended. However, the conclusions they draw are
largely from Reynolds' testimony-which just does not bear them out.
Thus, Reynolds testified that at 10 a.m. on May 3, the employees walked
out of the plant on the regular 10-minute work break.35 Reynolds
further testified that, without talking to any of the employees to as-
certain why they had walked out of the plant, and before the work
break was over, he told employees Cleek and Mullins : "It looks like
they are walking out on strike. I am going to call Mr. Lee." Reynolds
also testified that the reason he believed the employees were on strike
too due to the unsatisfactory terms of the contract " Significantly , Reynolds' telephone
conversation with Lee occurred after the employees had already walked out
Our colleagues , at footnote 21, supra, say that Penn ' s testimony is "palpably unbeliev-
able." However , it is apparent from our colleagues ' characterization of his testimony that
they made certain unwarranted assumptions and inferences . On the morning of May 3,
Penn did ask Reynolds whether we could get by with an illegal strike because "they" in-
formed us that if anyone walked out it would be illegal There is no basis whatsoever
for our colleagues to assume that by "they," Penn meant the Union Indeed, as our
colleagues themselves note, since Penn mentioned the "illegal " strike to Reynolds before
he called the Union and spoke to Lee, it is hardly likely that the notion of the walkout
being illegal was transmitted to him by the Union Rather , there is, on the record, a
more reasonable explanation On cross-examination by the General Counsel , Penn was
asked whether he knew the difference between a legal and illegal strike. Penn stated.
"Well, I would say that any time one walks oft the job without representation when they
were told not to, that would be an illegal strike " It should he noted, as our colleagues
do, that a week prior to the May 2 bargaining session , Reynolds prevented the employees
from walking out by telling them "that M r Lee, our union representative was out of
town . . and that it was utterly impossible to get in touch with him , to wait until . . .
after the meeting because v,e had no representation " [ Emphasis supplied I Sig-
nificantly , the principal basis upon which Penn relied in defining an illegal strike was the
term provided previously by Reynolds In addition , Penn ' s concept as to the possible
illegality of a walkout was reinforced by the colloquy between Lee and Respondent's
attorney , Goodman , at the May 2 bargaining session, where Lee indicated that a walkout
had previously been averted and Goodman indicated that "if they were to walk out, they
might just as well keep Walking , because they would have lost their jobs " The foregoing,
in our opinion , is it perfectly plausible explanation for Penn's Interrogation of Reynolds
whether the walkout would be illegal -Moreover , we note further that after the walkout
took place , Penn called Lee and was infoimed that the walkout was illegal from Lee's
point of view Penn testified that after being told to stay at work and keep as many em-
ployees working as possible , that is what he went by "all during the strike " As this
testimony was adduced by the General Counsel on cross -examination , ample opportunity
was afforded to the General Counsel to attempt to show what Penn relied on prior to the
walkout This , however, the General Counsel failed to
3' Reynolds also testified that the beginning and ending of all work breaks are signified
by an electionically controlled bell.
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was "because they had never previously-that many had never walked
out during a break period." However, on cross-examination, Rey-
nolds was asked to explain wby, if 75 to 80 people had gone on strike,
only 45 to 50 attended the union meeting called for the same evening.
Reynolds testified: "They had gone back into the plant and went to
work, that is the reason they were not at the meeting. They didn't
stay out the entire day. They had gone back into the plant. After
the break was over, they had gone back into the plant, one and two at
a time had drifted back into the plant, and some went around the side
door, and went back into the plant, and went to work after the bell had
rang to go back to work." [Emphasis supplied.] 38
With respect to the telephone call placed by Reynolds to Lee, our
colleagues apparently believe that Lee, having been'informed by Rey-
nolds that the employees were out on strike, evinced no dissatisfac-
tion with the employees' action and thereby signified approval. The
record establishes that Reynolds telephoned Lee sometime before
10:10 a.m., and thereafter placed a call to the CIO hall where reserva-
tions were made for a meeting that evening. However, they com-
pletely ignore the testimony of Penn, another member of the employee
bargaining committee. At the hearing Penn was asked whether he
had even been told not to walk off the job. Answering affirmatively,
Penn testified that at approximately 10:30 a.m. on May 3, he called
the IBEW office in Chicago 31 and informed Lee that there had been
a walkout. Lee responded : "'Fred [Penn] you are on the inside.
You stay in and keep as many of those employees in there working
as you can because this is an illegal strike. And those on the outside
haven't got nothing to stand on whatsoever.' That is what he told
me. And that is what I went by." Moreover, Penn's testimony is re-
inforced by the telegram which Lee sent to Reynolds in which Lee
clearly and unequivocally condemned the employees for engaging in
an "unauthorized work stoppage." 38
Thus, rather than supporting our colleagues' conclusion, the record
more accurately discloses that up to and including the night of May 2,
We again emphasize the point that Reynolds , rather than a majority of the employees
in concert , stimulated the movement on May 3 , and that less than a majority of the em-
ployees participated in the walkout This conclusion is further reinforced by the fact
that only a minority ( two of five) of the employee bargaining committee itself joined
the action.
av Penn stated that as a union committeeman he calls the Union regularly to "ask their
opinion of what I should do "
38 We see nothing inconsistent with Lee's response to the phone calls of Reynolds and
Penn It seems perfectly reasonable for Lee, when initially confronted by Reynolds with
the fact that the employees engaged in a walkout , to instinct Reynolds to arrange a meet-
ing of the employees and not, in the initial moment of surprise and the shortness of the
call, feel compelled to characterize the employees ' action as either lawful or unlawful
However , when Penn called Lee , some 20 minutes later , Lee had had time to reflect on the
matter and, having already taken all the steps necessary to assemble the employees for
that evening, he informed Penn that the strike was illegal , and, to ameliorate the effects
of the walkout, Lee instructed Penn to keep as many employees working as possible
SUNBEAM LIGHTING COMPANY, INC. 1263
1960, the Respondent and the employees' certified bargaining repre-
sentative were engaging in good-faith bargaining over the terms of
a first contract; that at the conclusion of the May 2 meeting, Lee, the
IBEW representative, agreed to submit the Respondent's proposals to
the membership at its next meeting and cautioned the employee mem-
bers of the negotiating committee against talking to the rest of the
employees about the progress of negotiations until that meeting was
held; that nevertheless, on the next day, 50 employees out of a unit of
approximately 120 walked out of the plant during the 10 a.m. work
break and refused to return at the conclusion thereof. Such conduct,
we think it clear, and we would so find, constitutes unprotected activ-
ity because it necessarily tends to usurp the authority of the em-
ployees' certified bargaining representative and to embarrass it in the
conduct of its bargaining obligations.39 Certainly where, as here,
some 50 dissident employees bypass the certified bargaining agent and
seek, on their own, to pressure an employer into agreeing to contract
terms different from those which their bargaining representatives had
agreed to take back to the employees, they derogate from the bargain-
ing representatives' statutory position and undermine the entire
collective-bargaining process .40
Our colleagues have, in effect, found that the IBEW, notwithstand-
ing its certification as the employees' exclusive bargaining representa-
tive, was not the real bargaining representative; that the true
representative of the employees was the five-man employee committee
with Reynolds as its chairman; and that, at most, Lee was but the
nominal spokesman. We do not believe the record will support such a
finding. Neither Lee nor the Respondent, nor, indeed, do any of the
witnesses who testified, indicate that it was their impression that the
Respondent was obliged to deal with the committee, and not Lee; and
it is far from clear to us that this committee was in any way author-
ized by the certified representative to act in its behalf. In the absence
of any showing that the bargaining was to be conducted on a split-
representative basis we can place no reliance upon a finding which is
contrary to the salient and persuasive fact that the Board's certifica-
tion required the Respondent to deal with the IBEW and no other.
Moreover, even if we assumed that the committee alone could lawfully
have called a strike, this strike would still not be protected for there
is simply no evidence that the strike was authorized or supported by
a majority of the committee.
Section 8(a) (5) imposes on an employer a duty to bargain in good
faith with its employees' representative. This the Respondent was
39 See N L R B v Draper Corporation , supra , denying enforcement of 52 NLRB 1477
40 Harnischfeger Corporation v. N L R B , supra , denying enforcement of 103 NLRB 47
See also NLRB. v Draper Corporation, id, at 205 ; and Plasti-Line, Ine, et at. V.
NL.R.B , 278 F. 2d 482 ( C.A. 6), denying enforcement of 123 NLRB 1471.
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
doing. Yet our colleagues are in effect penalizing the Respondent for
failing to accede to the demands of this minority group of strikers 41
In so doing, they are necessarily requiring the Respondent to infringe
upon the statutory rights which the IBEW possesses as the employees'
exclusive representative 42 Thus our colleagues are placing the Re-
spondent in the dilemma of either having violated Section 8(a) (5)
by bargaining with the employees rather than their certified repre-
sentative, or of being held to have violated Section 8 (a) (1) and (3) by
discharging the strikers who sought to force Respondent into that
invidious position. We believe that the policies of the Act compel
the Board not to derogate from the status of a duly certified union,
for "[t]here would be neither moral, legal nor practical justification
for our requiring employers to respect our certifications if we were
unwilling to respect them ourselves." 41
Accordingly, as we would not find the walkout on May 3, 1960, to
be an activity protected under Section 7 of the Act, we would find that
the Respondent did not violate Section 8(a) (1) and (3) by discharg-
ing, on May 4, 1960, the employees who participated therein. We
would, therefore, dismiss the complaint in its entirety.
"Our colleagues say that they are considering only the Respondent's right to punish
its employees for insisting that additional concessions be made to their bargaining repre-
sentative " This expression assumes the point in issue Unless the employees who walked
out were engaging in protected activities, the Respondent ' s action in discharging them
cannot be considered as "punishment ." And whether or not the walkout was for an object
of gaining greater concessions , the issue respecting whether it is protected must depend
upon a determination as to who the bargaining representative really is and whether it
authorized the walkout. We believe the Board' s certification of the IBEW leaves no
doubt as to the identity of the representative , and we find no evidence to rebut the
IBEW's express denunciation of the walkout as being an "unauthorized work stoppage "
'a Medo Photo Supply Corporation v. N.L R.B., 321 U.S. 678, 684. Cf J. I. Cabe Coin-
pany v. N.L.R.B, 321 U S 332.
'$ Thompson Products , Inc, 72 NLRB 886, 889.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT discourage membership in or activities on behalf
of International Brotherhood of Electrical Workers, AFL-CIO,
or any other labor organization by discharging, refusing to rein-
state, or in any other manner discriminating against employees in
regard to their hire or tenure of employment or any term or
condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce employees in the exercise of the right to self-organization,
to form labor organizations, to join or assist the above-named or
SUNBEAM LIGHTING COMPANY, INC. '1265
any other labor organization, to bargain collectively through
representatives of their own choosing , and to engage in any other
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all such
activities.
WE WILL offer immediate and full reinstatement to the follow-
ing named employees, and make them, and all employees to whom
we sent the letter of termination dated May 3, 1960, whole for any
loss of pay they may have suffered by reason of the discrimination
against them :
Franklin Sams
John D. Allen
William Alford
Francis P. Sauerborn
Richard J. Reynolds
Bob Anders
Robert Cleek
Emil Holzman
Fred Smith
Walter Townsell
Kenneth Turner
Melvin Waters
Franklin Byers
SUNBEAM IIGIITING COMPANY, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional
Office, Midland Building , 176 West Adams Street , Chicago 3, Illinois,
Telephone Number Central 6-9660, if they have any question concern-'
ing this notice or compliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Charges having been duly filed and served , a complaint and notice of hearing
thereon having been issued and served by the General Counsel of the National
Labor Relations Board, and an answer having been filed by the above-named
Respondent , a hearing involving allegations of unfair labor practices in violation of
Section 8 (a)(1) and (3 ) of the National Labor Relations Act, as amended, was
held in Gary , Indiana , on September 7 and 8 , 1960 , before the duly designated Trial
Examiner.
General Counsel and the Respondent were represented by counsel at the hearing,
and both were afforded full opportunity to present evidence pertinent to the issues,
to argue orally , and to file briefs . Oral argument was waived. Briefs have been
received from General Counsel and the Respondent.
The Respondent 's motion to dismiss the complaint , made at the conclusion of
the hearing and upon which ruling was then reserved , is disposed of by the follow-
ing findings , conclusions , and recommendations.
Upon the record thus made , and from his observation of the witnesses , the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Sunbeam Lighting Company, Inc., is a California corporation, having its principal
office in Los Angeles, California. It operates a plant in Gary, Indiana, which is
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
involved in these proceedings . At this plant the Respondent engages in the manu-
facture, sale , and distribution of electric light fixtures.
During the calendar year 1960, up to the date of the issuance of the complaint,
the Respondent shipped finished products from its Gary , Indiana, plant valued at
more than $50,000 directly to points outside the State of Indiana.
The Respondent is engaged in commerce within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background and major issues
The essence of General Counsel's complaint is that the Respondent unlawfully
discharged 50 employees (listed in Appendix A attached hereto) because they "ceased
work concertedly and went out on strike," on May 3, 1960. There is no dispute that
all 50 were in fact discharged on that date. And while shifting its position during
the hearing, the Respondent seems finally to rest its denial of unlawful conduct and
its claim of lawful dismissal upon the contention that the employees affected en-
gaged in a "wildcat strike," or unprotected concerted activities, and violated a
company rule by leaving work without management permission.
Pertinent events leading up to the "strike" may quickly be summarized.
During a period of several weeks before May 2, 1960, the Respondent, representa-
tives of the International Brotherhood of Electrical Workers, AFL-CIO, and em-
ployee members of a bargaining committee for that labor organization, had been
engaged in negotiations looking toward a contract. The IBEW had been certified
as bargaining agent for the Respondent's employees at this plant in mid-February
1960.
It is undisputed and is found that a number of the rank-and-file employees became
increasingly dissatisfied with the progress of negotiations, especially since considera-
tion of matters of pay increases was being delayed. It is also uncontradicted that
before May 2 the employees' concern was reported to one of the Respondent owners,
Weisbart.
On May 2 a bargaining session was held. At that meeting, credible testimony
shows, the IBEW representative, one Lee, warned the Respondent' s counsel that
employees had threatened to strike a week earlier. Counsel replied that if they had,
they would have lost their jobs. Later during the session the Respondent made what
it stated was its "final" proposals. It is undisputed, and found, that the IBEW
representative agreed to submit this "final" company proposal to the membership at
the next meeting, but voiced his opinion that the employees would not accept it.
Substantial and credible testimony shows that by the time the plant opened the
morning of May 3, and shortly thereafter, news spread among the employees of the
results of the preceding day's bargaining session.
Such are the pertinent events leading up to the walkout, to be described in the
next section.
B. The strike
At the 10 o'clock break the morning of May 3, more than half of the employees in
the bargaining unit of about 120 walked out of the plant. Although only a few of
the participants were called as witnesses and questioned as to the reason for their
action, the record contains sufficient credible evidence, uncontradicted, to support a
conclusion that dissatisfaction with the Respondent's "final" offer, submitted to
their bargaining committee the day before, was the precipitating reason and that
protest was the motive. It also appears that the action was, in effect, spontaneous,
since there is no evidence that it followed any formal union meeting or vote of
members.
The IBEW representative, spokesman at the bargaining conferences theretofore,
was conveniently absent at the time of the walkout. The undisputed testimony of
Richard Reynolds, a member of the employees' bargaining committee, points to the
fact, however, that Lee was well aware on May 2 that strike action was likely, since
he told Reynolds to call him in Chicago if it did occur. Reynolds and two other
committee members did call Lee, as soon as the fact of the walkout became apparent
during the morning break. Lee instructed Reynolds to arrange for a meeting of
employees at a local union hall that night. Reynolds did so.
When the employees gathered outside the plant failed to return at the end of the
break, a number of foremen circulated among them, threatening to "pull their
cards' if they did not go back to work. Some 25 or 30 yielded to such persuasion,
but about 50 remained outside
Management took prompt counteraction. It effectively discharged all participants
in the walkout by sending each of them the following letter, dated May 3
SUNBEAM LIGHTING COMPANY, INC. 1 267
This morning, you left your work during regular working hours without per-
mission, and in violation of your employment . When you left the plant, your
time card was "punched out" and thereafter your foreman instructed you to
return to work immediately and advised you that unless you did so , you would
be deemed to have voluntarily terminated your employment . You failed to
comply with your foreman 's instructions.
On the basis of your conduct and the breach of your employment duties, you
are hereby formally advised that you are deemed to have voluntarily left your
employment with our company and by reason of such conduct, you are in-
eligible for any future employment with us.
There is no need for you to return to our plant premises . Your final pay-
check for the week ending May 3, 1960, will be mailed to you on Friday of
this week.
Despite his earlier instructions to the bargaining committee to arrange for a meet-
ing that night, late in the afternoon of May 3 IBEW Representative Lee sent the
following wire to Committee Member Reynolds:
IN DISCUSSING THE CURRENT SITIATION [sic] AT SUNBEAM WITH
OUR SIXTH DISTRICT INTERNATIONAL OFFICE IT WAS DECIDED
TO INFORM THE MEMBERS OF THE NEGOTIATING COMMITTEE
THAT UNTIL FURTHER NOTICE, THERE WILL BE NO FURTHER
UNION OR NEGOTIATING MEETINGS WHILE THE UNAUTHORIZED
WORK STOPPAGE CONTINUES.
The striking employees met that evening as previously arranged . Reynolds read
the wire to them. Having thus been abandoned by their bargaining representative,
the employees voted to return to work the next morning-not having at the time
received the letters of discharge quoted above.
The brief walkout, strike, or work stoppage was over.
C. The refusal to reinstate
The next morning, May 4, at the regular hour for reporting, the employees who
had walked out the day before appeared at the plant gates, ready for work. They
were met by Plant Superintendent Ikenberry and a couple of local police officers.
Ikenberry refused to permit them to return to work, instructed them to go home,
and informed them they would receive their checks in the mail.
Later in the day these employees received the Respondent's formal letter of dis-
missal and refusal to consider them for reemployment which had been mailed the
preceding day.
D. Later reemployment of certain strikers
From the evidence it appears that, having discharged nearly one-half its work-
ing force, management of the Respondent made no attempt to resume operations for
several days. There is no evidence that during this period IBEW Representative
Lee or anyone else from the Union undertook to protest management's action in
firing the strikers and refusing to permit them to return to work.
Finally, on May 10, nearly a week later, another IBEW representative, Conway,
went to see the Respondent's counsel. According to Conway, a witness for the
Respondent, "My first move was to contact your [counsel's] office to try to set up
a meeting . . . and try to arrive at a smooth relationship between our organization
and the company."
That Conway's concern, even at the hearing, was to maintain such "smooth rela-
tionship" with the Company instead of appearing on behalf of some 50 discharged
employees is indicated by the following:
Q. (By Mr. GOODMAN, counsel for the Respondent) Well-Mr. Conway,
on May 10, was there a strike in progress at the company?
A. There was.
Conway later shifted his position to claim that on May 10 "a walkout was in
progress " However inaccurate Conway's definitions or information, it appears that
on various dates thereafter the Respondent reemployed the individuals listed in
Appendix B, although there is no evidence as to whether or not they were made
whole from May 4, the date they were effectively locked out, to the date of
reemployment.
The Respondent concedes that it has refused reinstatement to the individuals
listed in Appendix C.
641795-63-vol. 136-81
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. Conclusions
In its original answer filed on August 2, 1960, the Respondent denied all allega-
tions of the complaint except those relating to service of papers and jurisdiction.
It offered no affirmative reason for the discharges of May 3.
At the opening of the hearing counsel for the Respondent was permitted to file
an amended answer. The contents of this document are of little aid in the task of
determining just what position the Respondent at that time took as to either the facts
or the conclusions to be drawn from them. It both denied that the employees listed
in Appendix A walked out on May 3 and claimed affirmatively that they did. It
both denied that these employees were discharged on that date and affirmatively
claimed that they were. It both claims that the employees quit on May 3 and that
by "reason of their misconduct and interference with the Respondent's business they
had lost their employment status."
Nor were the Respondent's varied claims materially clarified during the hearing.
At least one issue, however, was eventually disposed of when, contrary to the claim
in his answer, counsel for the Respondent admitted that none of the employees were
refused reinstatement because of misconduct after the walkout.'
Stated in capsular form, it appears to be the Respondent's final position set forth
in its brief, that because the IBEW had not authorized the walkout, the walkout was
illegal, because of its "wildcat" and "unprotected" nature, and that consequently the
Respondent had no obligation to permit participants to return to work on May 4 or
at any time thereafter.
The Trial Examiner finds no merit in counsel's contention that the walkout was
either illegal or unprotected activities. Whether the IBEW "sanctioned" it or not is
immaterial, under circumstances as here described, where no contract and no "no-
strike" clause existed. It is established that IBEW Representative Lee in effect
warned the company representatives on May 2 that the employees might take such
action in protest against the "final" offer.
Nor is there merit in counsel's companion contention that the strike was illegal
and unprotected because "none of these individuals" advised "the company of any
grievance they may have had " A sworn affidavit of Carl Conrad, works manager,
admits the following:
When the bell rang to return to work, 51 of the employees failed to return to
work. When the 51 did not return I called in all the foremen and they (the
foremen) told me that the men were not going to return to work because they
were dissatisfied with the terms of the contract.
There is no question in my mind but that these men walked out because they
were dissatisfied with the contract provisions. It is my opinion that everyone
knew that this was the reason why the men walked out.
These sworn admissions were made before an attorney o fthe National Labor Rela-
tions Board on June 27, 1960.2 On the basis of these competent admissions against
interest the Trial Examiner concludes that management well knew the nature of
the "grievance" at the time of the walkout.
An additional claim by counsel that in some way the strike was "illegal" and "un-
protected" because the employees failed to obtain permission to leave the plant, and
thereby violated a company rule, is so tenuous as to require no extended comment.
Congress has placed many restrictions upon strikes in recent years, but the Trial
Examiner is aware of none which requires that, to be lawful, a strike must first be
approved by management
In short, the Trial Examiner finds no merit in any of the Respondent's contentions.
It is concluded and found that all employees listed in Appendix A were summarily
discharged on May 3 and refused reinstatement on May 4, 1960, because they had
1 Counsel for the Respondent stated flatly, "We didn't as a matter of fact refuse any-
body on the basis of that "
On July 21, 1960, after a copy of the above affidavit came to the attention of Respond-
ent's counsel, Conrad was apparently prevailed upon to send in another affidavit, retract-
ing the above-quoted admissions, along with others Since the same counsel for the
Respondent, upon submitting the retraction in evidence, stated that he did not "in any
way" intend to "reflect unfairness on the part of air Ehrlich (the Board attorney) or to
even suggest that he was guilty of any malfeasance or non-teasance," the Trial Examiner
can place no reliance upon the second affidavit
SUNBEAM LIGHTING COMPANY, INC. 1269
engaged in concerted activities, and that such activities were protected.3 It is further
concluded, on the grounds that at least until the receipt of the wire from Lee late
in the afternoon of May 3 these employees believed that the labor organization of
their choice supported them, and that on the preceding day Lee had warned man-
agement of the possible action, that by discharging the employees the Respondent
discriminatorily discouraged union membership and activities.4 Such action by the
Respondent interfered with, restrained, and coerced employees in the exercise of
rights guaranteed by Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with its operations described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices the Trial
Examiner will recommend that it cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
It has been found that the Respondent unlawfully discharged the employees listed
in Appendix A on May 3, 1960, and unlawfully refused to reinstate them the fol-
lowing day, May 4. It has further been found that up to the time of the hearing
the Respondent has continued to refuse reinstatement to the employees listed in
Appendix C. It will therefore be recommended that the Respondent offer immediate
and full reinstatement to the employees listed in Appendix C, without prejudice to
their seniority or other rights and privileges, and make them and all employees listed
in Appendix B whole for any loss of earnings they may have suffered from May 4,
1960, to the date of reemployment in the cases of employees listed in Appendix B,
and to the date of offer of reinstatement in the cases of employees listed in Appendix
C, by payment to each of them of a sum of money he or she would have earned as
wages absent the discrimination, less his or her net earnings during such period, in
conformity with Board policy set forth in F. W. Woolworth Company, 90 NLRB 289,
and Crossett Lumber Company, 8 NLRB 440. It will also be recommended that
the Respondent, upon request, make available to the Board and its agents all payroll
and other records pertinent to the analysis of the amounts of backpay due and the
right of reinstatement.
Since the violations of the Act which the Respondent has committed are related
to other unfair labor practices proscribed by the Act, and the danger of their
commission in the future is reasonably to be anticipated from its past conduct, the
preventive purposes of the Act may be thwarted unless the recommendations are
coextensive with the threat. To effectuate the policies of the Act, therefore, it will
be recommended that the Respondent cease and desist from infringing in any manner
upon the rights guaranteed employees by the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. By discriminating in regard to the hire and tenure of employment, thereby dis-
couraging membership in and activities on behalf of a labor organization, the Re-
spondent has engaged in and is engaging in unfair labor practices within the meaning
of Section 8(a) (3) of the Act.
2. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
3 United Grinding Service, Inc., 118 NLRB 67
4The Radio OfRcer#' Union, etc. (A. H. Bull Steamship Co.) V. N.L.RB, 347 U.S. 17,
at 45.
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
Franklin Sams Kenneth Turner Rose Savka
John D. Allen Melvin Waters Ted Prybysez
William Alford Estal Wilson David Pendergrast
Francis P. Sauerborn William Isebell Charles Fisher
Richard J. Reynolds James Cash Barry Fiene
Bob Anders Joe Rzonca James Stanley
John Merchant Richard Chavez Garland Conn
Robert Bartley James Forgus Gaylan Davis
James Patterson Harold Doughty Herschell Huffine
Merritt Tounzen Franklin Byers Henry McAbee
R. C. Williams Willie Buckner Arlene Spaw
Lloyd Dugger Wilton Carr Oliver Ward
James Poore Charles McGee Gertrude Kainrath
Robert Cleek Jessie Lewis James Johnson
Emil Holzman Elmer Kern John Clark
Fred Smith Willie Hicks Paul Douzier
Walter Townsell Alex Anderson
APPENDIX B
1960
John Merchant_____________ June 15
Robert Bartley _____________ May 16
James Patterson____________ May 13
Merritt Tounzen ----------- May 16
R. C. Williams------------- May 13
Lloyd Dugger -------------- May 17
James Poore_______________ May 23
Estal Wilson_______________ May 17
William Isebell_____________ May 16
James Cash_______________ May 19
Joe Rzonca________________ May 18
Richard Chavez____________ May 18
James Forgus -------------- May 19
Harold Doughty____________ May 19
Willie Buckner_____________ May 16
Wilton Carr_______________ May 19
Charles McGee____________ May 13
Jessie Lewis--------------- May 12
Elmer Kern---------------- May 21
1960
Willie Hicks_______________ May 16
Alex Anderson_____________ May 16
Rose Savka________________ May 16
Ted Prybysez -------------- May 18
David Pendergrast__________ May 13
Charles Fisher_____________ May 18
Barry Fiene --------------- May 19
James Stanley_____________ May 21
Garland Conn_____________ May 12
Gaylan Davis-------------- May 16
Herschell Huffine__________ June 6
Henry McAbee____________ June 6
Arlene Spaw --------------- May 18
Oliver Ward_______________ May 19
Gertrude Kainrath__________ May 16
James Johnson_____________ May 16
John Clark________________ May 16
Paul Douzier -------------- May 18
APPENDIX C
Franklin Sams Richard J. Reynolds Walter Townsell
John D. Allen Bob Anders Kenneth Turner
William Alford Robert Cleek Melvin Waters
Francis P. Sauerborn Emil Holzman Franklin Byers
Fred Smith
Local 344, Retail Clerks International Association , AFL-CIO;
Retail Clerks International Association , AFL-CIO and Alton
Myers Brothers , Inc. Case No. 14-CP-1. April 24, 1962
DECISION AND ORDER
On January 29, 1960, Trial Examiner Thomas A. Ricci issued his
Intermediate Report, finding that the Respondents had not violated
Section 8(b) (7) (B) as alleged in the complaint and recommending
that the complaint be dismissed in its entirety, as set forth in the
136 NLRB No. 118.