Walsh-Lumpkin Wholesale Drug Co.

National Labor Relations Board - Board Decisions

Oct 6, 1960

129 N.L.R.B. 294 (N.L.R.B. 1960)

294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
question . Based on the findings and reasons set forth above, I shall recommend'
dismissal of the complaint in its entirety.
Upon the above findings of fact and upon the entire record in the case I make
the following:
CONCLUSIONS OF LAw
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Charging Party is a labor organization within the meaning of Section 2(5)
of the Act.
3. The Respondent has not . engaged in unfair labor practices as alleged in the
complaint.8
[Recommendations omitted from publication.]
8 As the alleged violations of Section 8(a)(1) of the Act are derivative of Section
8(a) (3) they, too , fall when 8 ( a) (3) falls.
Walsh-Lumpkin Wholesale Drug Company and International
Brotherhood of Teamsters , Chauffeurs, Warehousemen &
Helpers of America , Local 878. Case No. 26-CA-913 (formerly
15-CA-1668). October 6, 1960
DECISION AND ORDER
On May 24, 1960, Trial Examiner Louis Libbin issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in unfair labor prac-
tices and recommending that it.cease and desist therefrom and take
certain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter the Respondent and the General
Counsel filed exceptions to the Intermediate Report and the Respond-
ent also filed a brief in support of its exceptions.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, the brief, and the entire record in this
case, and hereby adopts the findings, conclusions and recommenda-
tions of the Trial Examiner with the following additions and
modifications.
1. The Respondent has made a number of procedural objections to
the proceedings. They are :
(a) The hearing was unauthorized because no valid charge was
filed with the Board. The charge filed was signed "Odell Smith,
President, by James E. Youngdahl, Attorney." The Board's Rules
(Section 102.11) provide that a charge "shall be in writing and signed,
and either shall be sworn to . . . or shall contain a -declaration by
'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [ Chairman Leedom and
Members Rodgers and Fanning].
129 NLRB No. 31.
WALSH-LUMPKIN WHOLESALE DRUG COMPANY 295,
the person signing it . . . that its contents are true and correct to-
the best of his knowledge and belief." Respondent contends that on
its face the charge was not sworn to by the person signing it. We
do not agree. We find that the signature on the charge met the re-
quirements of the Board's rule. In any event, the Respondent can
point to no prejudice resulting from the alleged improper signing
thereof2
(b) The Trial Examiner erred in overruling, for the most part,.
Respondent's request for a bill of particulars. The complaint named
the dates and agents through whom Respondent allegedly committed
certain specified violations of Section 8(a) (1). In response to Re-
spondent's request for abill of particulars, the General Counsel fur-
nished, on order of the Trial Examiner, the places where these unfair
labor practices were alleged to have been committed. However, the°
Trial Examiner rejected Respondent's demand for the names of
employees who were the alleged victims of the unfair labor practices
as well as a more detailed statement of the practices. The complaint
and the bill of particulars together adequately advised Respondent
of the nature of the violations charged, the manner by which Respond-
ent had engaged in unfair labor practices, and the approximate times
and places at which such acts had been committed. Accordingly, the
denial of the request for additional particulars was not erroneous or
prejudicial.3
(c) The Trial Examiner erroneously refused Respondent's request
to exclude the named discriminatees from the hearing room when they
were not testifying. The Board has held that alleged discriminatees
are entitled to be present during the taking of all testimony because,
in effect, they occupy the status of complainants.'
(d) After two witnesses called by the General Counsel, Melvin
Gentry and Don Fulenwider, had been fully cross-examined by Re-
spondent and excused by the Trial Examiner, Respondent for the first
time moved for the production of any pretrial statements which they
may have signed for the General Counsel. The Trial Examiner denied
the request upon the ground that it had come too late.-' He stated that
he would not recall the excused witnesses for further cross-examina-
tion. The proper time to request production of pretrial statements by
witnesses for the General Counsel, the Trial Examiner said, is at the
close of direct examination so that the statements may be used for
cross-examination. In Ra-Rich,' the Board said : ". . . the holding
2 Union Starch & Refining Co. v. N.L.R.B., 186 F. 2d 1008, 1013 (C A. 7), cert. denied
342 U.S. 815.
8 United Mine Workers of America, District 31, et al. (L E Cleghorn), 95 NLRB 546,
548; Cadillac Marine & Boat Company, 115 NLRB 107, 109
f Reckert Carbide Die, Inc., 126 NLRB 757; Lewis Karlton, rl/b/a Consoltidated F7 ame
Company, 91 NLRB 1295.
5 In the case of other witnesses for the General Counsel, pretrial statements were fur-
nished Respondent at its request made at the close of direct examination of such witnesses.
°Ra-Rich Manufacturing Corporation, 121 NLRB 700, 701
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Jencks case applies to Board proceedings and affords parties
thereto, upon proper demand, the right to production for purposes
of cross-examination of pretrial statements made by witnesses who
have already testified in such proceedings." As stated by the Trial
Examiner, the proper time for requesting pretrial statements is at the
close of direct examination of witnesses. It would disorganize hear-
ings if, after a witness has been fully cross-examined and left the
hearing room, a respondent were given the right to demand pretrial
statements and of necessity to recall a witness for further cross-
examination. A decision whether to recall a witness for additional
cross-examination is within the Trial Examiner's allowable area of
discretion. We find no prejudicial error in the Trial Examiner's rul-
ing that he would not permit such recall in this case and therefore in
his further ruling rejecting the request for the pretrial statements of
witnesses Gentry and Fulenwider.
(e) Respondent was unlawfully prejudiced by the ruling of the
Trial Examiner denying Respondent's motion made before the hear-
ing that the General Counsel produce any statements made by the al-
leged discriminatees or in the alternative that discovery depositions of
such discriminatees be permitted. Board employees are prohibited
from producing any records from Board files, except after a witness
called by the General Counsel has testified at a hearing.? As to the
request for discovery, the Board's procedures make no provision there-
for and the lack thereof has been held not to be a denial of due
process .8
2. Respondent contends that the Trial Examiner improperly di-
rected the immediate reinstatement of all 13 alleged discriminatees
inasmuch as the record shows that it is now performing the work of
the 13 with only 9 replacements. We find merit in this contention. It
is possible, in view of the reduced number of employees now perform-
ing the work of the discriminatees, that some of the latter might have
been laid off subsequent to the commencement of the strike for non-
discriminatory reasons . Under these circumstances, we shall modify
the Trial Examiner's recommended remedy by providing that, if
there is not sufficient work for all discriminatees after discharging
all replacements, available positions shall be distributed among
them without discrimination in accordance with the system of sen-
iority or other nondiscriminatory practices heretofore applied by
the Respondent in the conduct of its business. Respondent shall place
those employees, if any, for whom no employment is available after
such distribution on a preferential hiring list, with priority in accord-
T Board Rules and Regulations ( Series 8, 1959 ), Section 102.118; Ra -Rich Manufactur-
ing Corporation , 121 NLRB 700.
8 Plumbers and Steamfitters Union Local 100, et al. ( Beard Plumbing Company), 128
NLRB 398; N.L.R.B. v. Globe Wireless, Ltd ., 193 F. 2d 748, 751 (CA. 9).
WALSH-LUMPKIN WHOLESALE DRUG COMPANY 297
ante with such system of seniority or other nondiscriminatory prac-
tices heretofore applied, and thereafter offer them reinstatement as
such employment becomes available and before other persons are hired
for such work. In the case of discriminatees for whom no work is
available, backpay shall terminate on the date of placement on the
preferential hiring list .9
ORDER
Upon the entire record in the case and pursuant to Section 10(c) of
the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent, Walsh-Lumpkin
Wholesale Drug Company, Texarkana, Arkansas, its officers, agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local
878, or in any other labor organization, by refusing reinstatement to
unfair labor practice strikers upon their unconditional request, or by
discriminating against its employees in any other manner in regard
to their hire or tenure of employment or any terms or conditions of
their employment, except to the extent permitted by Section 8(a) (3)
of the Act, as modified by the Labor-Management Reporting and Dis-
closures Act of 1959.
(b) Refusing, upon request, to bargain collectively with the above-
named Union as the exclusive representative of all truckdrivers and
warehousemen, including order fillers, checkers, stockmen, inventory
clerks and packers, but excluding all office clerical employees, sales
employees, guards, and supervisors as defined in the Act.
(c) Bypassing the above-named Union as the employees' duly
chosen exclusive collective bargaining representative and dealing di-
rectly with the employees.
(d) Holding out to the employees the prospect of a higher wage
scale than had been offered in negotiations with their duly chosen ex-
clusive collective-bargaining representative if they would vote to drop
said representative and form a company union.
(e) Offering to help its employees to organize a company union and
promising reimbursement by Respondent for any attorney's fees in-
curred in connection therewith.
(f) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to form
labor organizations, to join or assist the above-named or any other
labor organization, to bargain collectively through representatives of
6 United Butchers Abattoir , Inc., 123 NLRB 946, 959.
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection, or
-to refrain from any or all such activities, except to the extent that such
right may be affected by an agreement requiring membership in a
labor organization as a condition of employment, as authorized in
Section 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America,
Local 878, as the exclusive representative of the employees in the
aforestated appropriate unit with respect to rates of pay, wages, hours
of employment, and other conditions of employment, and, if an under-
standing is reached, embody such understanding in a signed agreement.
(b) Offer to all strikers named in the complaint immediate and full
reinstatement to their former or substantially equivalent positions
without prejudice to their seniority or other rights and privileges,
and make them whole for any loss of pay each may have suffered be-
cause of the discrimination against them, in the manner set forth in
the section of the Intermediate Report entitled "The Remedy" as
modified herein.
(c) Preserve and, upon request, make available to the Board or its
agents for examination and copying, all payroll records, social security
payment records, timecards, personnel records and reports, and all
other records necessary to analyze the amounts of backpay due and
the rights of employment under the terms of this Order.
(d) Post at its Texarkana, Arkansas, plant copies of the notice
attached hereto marked "Appendix A." 10 Copies of the said notice,
to be furnished by the Regional Director for the Twenty-sixth Region,
shall, after being duly signed by the Respondent's authorized repre-
sentative, be posted by the Respondent immediately upon receipt
thereof, in conspicuous places, including all places where notices to
employees are customarily posted, and maintained by it for at least
60 consecutive days thereafter. Reasonable steps shall be taken to
insure that said notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for the Twenty-sixth Region, in
writing, within 10 days from the date hereof, what steps have been
taken to comply herewith.
1° 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 "
WALSH-LUMPKIN WHOLESALE DRUG COMPANY 299
APPENDIX A
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, we hereby notify our employees that :
WE WILL NOT discourage membership in International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, Local 878, or in any other labor organization, by refusing
reinstatement to unfair labor practice strikers upon their uncon-
ditional request, or by discriminating in any other manner in
regard to our employees' hire or tenure of employment or any
term or condition of employment.
WE WILL NOT bypass the above-named Union as our employees'
duly chosen exclusive collective-bargaining representative and
we will not deal directly with our employees.
WE WILL NOT hold out to our employees the prospect of a higher
wage scale than we have offered in negotiations with their duly
chosen exclusive collective-bargaining representative if they
would vote to drop said representative and form a company
union.
WE WILL NOT offer to help our employees to organize a company
union nor promise reimbursement for any attorney's fees incurred
in connection therewith.
WE WILL NOT in any other manner, interfere with, restrain, or
coerce our employees in the exercise of their right to self -organiza-
tion, to form a labor organization, to join or assist the above-
named or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any and all
such activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization
as a condition of employment, as authorized in Section 8(a) (3)
of the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
WE WILL, upon request, bargain collectively with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, Local 878, for the following appropriate unit with
respect to rates of pay, wages, hours of work and other conditions
of employment, and, if an understanding is reached, embody such
understanding in a signed agreement. The bargaining unit is:
All truckdrivers and warehousemen, including order fillers,
checkers, stockmen, inventory clerks, and packers, but ex-
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eluding all office clerical employees, sales employees, guards,,
and supervisors as defined in the Act.
WE WILL offer to the following-named strikers full reinstate-
ment to their former or substantially equivalent positions without
prejudice to their seniority or other rights and privileges and
make them whole for any loss of pay they may have suffered as
the result of the discrimination against them.
Marcellus V. Blankenship Eugene Howard
Cassie Davenport Jewel C. Long
Winfield D. Dickson William R. Morrison
Donney U. Tulenrider Terell M. Shelton, Jr.
Everett Gray Timothy A. Shelton
Leon Haynes Bobby Joe Tolley
Mack Hill
All our employees are free to become, remain, or refrain from be-
coming or remaining, members of the above-named Union or any
other labor organization, except to the extent that this right may be
affected by a lawful agreement requiring membership in a labor or-
ganization as a condition of employment.
WALSH-LUMPKIN WHOLESALE DRUG COMPANY,
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.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed by International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen & Helpers of America , Local 878 , herein called the Teamsters or the
Union , the General Counsel of the National Labor Relations Board , by the Regional
Director for the Fifteenth Region (New Orleans , Louisiana ), issued his complaint,
dated December 18, 1959 , against Walsh -Lumpkin Wholesale Drug Company, herein
called the Respondent . With respect to the unfair labor practices, the complaint as
subsequently amended alleges, in substance that : ( 1) On January 30, 1959, the
Union was certified by the Board's Regional Director as the exclusive bargaining
representative of all the employees in a designated appropriate unit; (2 ) at all times
on and after July 22 , 1959 , Respondent refused to bargain with the Union, upon
the Union 's request ; ( 3) during the period from July 22 to August 3, 1959 , Respond-
ent engaged in specified acts of interference , restraint , and coercion and bargained
directly and individually with unit employees ; (4) a strike which occurred from
August 3 to December 1, 1959 , was caused and prolonged by Respondent 's unfair
labor practices ; ( 5) on December 1 and thereafter Respondent refused to reinstate
the strikers, upon their unconditional request , because of their union and concerted
activities ; and (6 ) by the foregoing conduct Respondent engaged in unfair labor
practices within the meaning of Section 8(a) (1), (3 ), and (5) and Section 2(6) and
(7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. In its
duly filed answer, Respondent admits the Union 's certification in an appropriate unit
and that a strike occurred from August 3 to December 1, 1959 ; denies all unfair
labor practice allegations ; and avers that the strike was an economic strike and that
WALSH-LUMPKIN WHOLESALE DRUG COMPANY 301
the strikers were denied reinstatement because their places had been filled and there
were no other vacancies.
Pursuant to due notice, a hearing was held before Trial Examiner Louis Libbin on
March 21 to 23, 1959, in Texarkana, Arkansas. All parties were represented at the
hearing and were afforded full opportunity to be heard, to examine and cross-
examine witnesses, to introduce relevant evidence, to present oral argument at the
close of the hearing and thereafter to file briefs as well as proposed findings of fact
and conclusions of law. After the close of the hearing, I received briefs which I
have fully considered.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent Walsh-Lumpkin Wholesale Drug Company is an Arkansas corporation
with its principal office and place of business in Texarkana, Arkansas, where it is
engaged in the wholesale sale and distribution of supplies for retail drug stores located
in the States of Arkansas, Texas, and Oklahoma. During the year ending 1959,
Respondent purchased supplies which were valued in excess of $1,000,000, and 99
percent of such supplies were shipped directly to Respondent from points outside the
State of Arkansas; during the same period, Respondent's gross sales were in excess
of $1,000,000, and 75 percent of the materials sold were shipped to points outside the
State of Arkansas.
Upon the above admitted facts, I find that Respondent is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent stipulated, the record shows, and I find, that
International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, Local 878, is a labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction; the Issues
Respondent admits that as a result of a Board-conducted election won by the
Union on January 22, 1959, the Union was certified on January 30 as the exclusive
collective-bargaining representative of the employees in the appropriate unit herein
set forth. Thereafter, a series of four or five negotiating meetings were held between
representatives of the Union and of Respondent from February 9 to July 28, 1959,
without final agreement having been reached on all the provisions of a contract. On
August 3, 1959, the employees went out on strike which continued until December
1, 1959. Thereafter, all strikers unconditionally applied for reinstatement but none
were reinstated as of the date of the hearing in this case.
The principal issues litigated in this proceeding are: (1) whether Respondent
engaged in conduct which constituted a refusal to bargain within the meaning of
Section 8(a)(5) of the Act; (2) whether the strike of August 3, 1959, was caused
and prolonged by unfair labor practices of Respondent; (3) whether Respondent
discriminated with respect to hire and tenure of employment by refusing to reinstate
the strikers upon their unconditional request following the termination of the strike;
and (4) whether Respondent, through its agents and representatives, engaged in
conduct which independently violated Section 8(a)(1) of the Act.
B. Respondent's managerial or supervisory hierarchy
The operating managers of Respondent are William Pearson Walsh and Ben Pugh
Walsh, brothers, who are respectively secretary-treasurer and vice president of
Respondent and will hereinafter be referred to as Pearson Walsh and Pugh Walsh.
Pearson is in charge of the collecting while Pugh is in charge of the buying. Their
father, William P. Walsh, is president of Respondent and is in semiretirement.
Respondent's plant consists of a shipping department and a warehouse, separated
by a partition. About 16 employees work in the shipping department in all classifica-
tions, including truckdrivers, order fillers, packers, and checkers. The building con-
sists of three floors, and the order fillers work on all floors. Pearson Walsh's office is
in the front part of the building. James Roy is admittedly the foreman of the ware-
house. In issue are the status of Pearson Walsh's son, Benjamin Pope Walsh, a
minor stockholder employed by Respondent and hereinafter referred to as Pope
Walsh, and that of Melvin Gentry, employed in the shipping department.
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Melvin Gentry has been employed in the shipping department for 17 years. By
1959, he was receiving $1.89 an hour, which he admitted was about 25 cents per
hour more than that received by the other employees. While Gentry does some
physical work himself, he and Pearson Walsh admitted that Gentry assigns work to
the men in the shipping department to keep them busy and also directs the men as to
how they should perform their work. Gentry also admittedly makes overtime assign-
ments to the employees. Gentry admitted that he had been authorized by Pearson
Walsh to use his own judgment as to whether to give the employees permission to
take time off when requested, and that he has frequently exercised that authority.
Pearson Walsh admittedly discusses the employees' work with Gentry and asks
Gentry's opinion as to how the men are performing their job. When employee
Dickson was hired as an order filler, Pearson Walsh told him that Gentry was his-
supervisor and that Dickson should take orders from Gentry. Pearson Walsh
admitted that he would follow Gentry's recommendations with respect to hiring and
discharging employees. Gentry testified that he did not sign a union membership-
,card because he did not know if he was eligible on account of his supervisory "qual-
ities." He further testified that-while Pearson Walsh was his immediate superior, he
also took advice from Pope Walsh and usually followed such advice.,
Pope Walsh testified that he was a "management trainee," and performed routine-
work in every department and also traveled with the salesmen to meet the customers.
As the only remaining son in the Walsh family, Pope admittedly is expected someday
to take over the job of his father, Pearson Walsh. Pope is paid $450 per month; the
only other persons paid on a monthly basis are the corporate officers, the office man-
ager, and the salesmen. Pearson Walsh admitted that he has confidence in Pope's
ability to conduct Respondent's business, that he consults Pope frequently on the
conduct of the business and has discussed many phases of the business with him,
including employee wages. Pearson Walsh further admitted that he has authorized
,and directed Pope to give instructions to the employees in the shipping department
about what they should do on the job and to admonish the employees to work faster
when necessary. In the fall of 1958, Gentry told one employee, who had inquired
if the employees were supposed to take' instructions from Pope Walsh, that Pope
Walsh was just as much a boss as Gentry was. During Gentry's absence on vacation
in the latter part of July 1959, Pope Walsh admittedly called the employees together
in a group in a corner of the shipping department, criticized them for slowing down
in their work, warned them that they could be fired for it, and told them that "You
are a good bunch of fellows and I want you to stay but all I want you to do is get out
there and get those orders in and get the lead out and get out there and fill those
orders." He further admitted that he told the employees on several occasions to
"get the lead out."
Pearson Walsh admitted that his son, Pope, and Gentry occupied a position
parallel with that of James Roy who was the foreman of the warehouse, that both
Pope and Gentry had the authority, which the record shows they exercised, to adjust
minor employee grievances, to handle anything relating to the smooth running of
the work, and to transfer employees from one floor to another when such transfers
were necessary in their judgment. Gentry admitted that he and Pope Walsh are on
a similar "footing," that they put their ideas together and work "hand in hand," and
that, among other things, they get together and decide whether employees should
work overtime. Pope Walsh and Gentry, with Pearson Walsh's knowledge and
authorization, presided over the weekly meetings of the shipping department em-
ployees held at the plant every Thursday morning and spoke to the employees about
matters pertaining to the work. At these meetings, Gentry and Pope Walsh would
sometimes "get on the employees" about getting the items out on time . On occasion,
Pearson Walsh was also present and spoke at such meetings.
Upon the above admitted and undisputed facts, I find that Melvin Gentry and
Pope Walsh possess the authority, which in fact they exercised, which renders them
supervisors within the meaning of Section 201) of the Act. I further find that
Pearson Walsh held them out to the employees as management representatives and
that therefore on that ground alone they were agents of Respondent.
C. The relevant events
1. Conduct prior to the election as background 1
I find, upon the basis of the undenied and credited testimony of employees
Howard, Blankenship, Davenport, and Morrison, that in January 1959, prior to the
scheduled Board election, Pearson Walsh engaged in the following conduct:
1 No unfair labor practice findings are based on the conduct set forth in this section
because it occurred more than 6 months before the filing of the charges in this case
WALSH-LUMPKIN WHOLESALE DRUG COMPANY 303
Howard and Blankenship were individually called into Pearson Walsh's office and
interrogated by him as to whether they had signed a union membership card. When
they replied in the affirmative, Pearson Walsh told them that if they voted the
Union in, the employees would lose the various current benefits and favors which
they were receiving from the Company, such as bonuses, loans, the Christmas dinner
party, and the privilege of taking time off for personal matters without punching
the timeclock.
Employee Davenport was also called in Walsh's office and interrogated by him
in a similar manner. Davenport also admitted having signed a union card. Pearson,
Walsh had Davenport's pay record there, which showed how much he was receiving,
per hour, the number of days on vacation, and the number of days he was sick.
Walsh then asked Davenport if he thought he "was doing the Company right by join-
ing the union," and pointed out that if he were in Davenport's place he (Walsh)
"would be more of a man" than "to do something like that," emphasizing that he
(Walsh) "would quit" and that he wished Davenport would quit.
Also, at one of the weekly employee meetings conducted by Pope Walsh and
Melvin Gentry, Pearson Walsh spoke about the Union and pointed out some of the
current employee benefits which the employees would lose if the Union were voted in.
2. The status of the negotiations on July 28, 1959
The last bargaining conference before the strike was held on July 28, 1959; the
Union was represented by Assistant Business Agent Glover, while Respondent was
represented by Pearson Walsh and Stewart, Respondent's attorney. The only issues
on which the parties were in disagreement at that time were wages, union dues check-
off, and insurance. The Union had previously rejected Respondent's offer of a 5-cent
per hour wage increase for each employee. Glover felt that if an agreement could be
reached on wages, "everything else would be ironed out," and he received the same
impression from Stewart. It was at this meeting that Stewart offered an additional
5-cent per hour for four or five named employees and indicated that if that were
acceptable to the Union, he thought the other matters in issue could be settled.
Glover stated that he did not think that proposal would be acceptable to the
membership.
No date at that time was set for another meeting because Glover left with the
"distinct" impression that it was Stewart's next move to submit his proposal in writing
or make arrangements for a further meeting.2
3. Pope Walsh's conversation with Donny Fulenwider
In the latter part of July, Pope Walsh had the following conversation with em-
ployee Donny Fulenwider during working hours; Pope stated that the Company and
the Union were at a stalemate and that he wanted to help the employees reach a
settlement of some kind. Pope then explained that he had worked up a scale of
wages and that he would try to get them to be put into effect if the employees
"dropped the Union." Fulenwider asked why an employee by the name of Dean
Lynn had just been hired at a higher rate than the employees who had been there
longer. Pope Walsh replied that that was the way his dad was.
Either in the same conversation or in another conversation held about the same
time, Pope Walsh told Fulenwider that if he would talk to the employees and get
them to agree to "drop the Teamsters Union," Pope thought he could get his father
to agree to a 10-cent per hour wage increase the following Monday. Fulenwider
replied that it would be best for Pope to take this matter up with Melvin Gentry. In.
response to Fulenwider's query as to why the Company was against the Teamsters
Union, Pope Walsh stated that the Union would "break the company." Fulenwider
then asked why he had been selected for this purpose. Pope Walsh answered that
(Section 10(b) of the Act). However, it is well settled that such evidence may be ad-
mitted and considered as background shedding light and imparting meaning to the Re-
spondent's conduct which did occur within the 6-month period which is after April 9,
1959. See, e.g., Textile Machine Works, Inc., 96 NLRB 1333, 1350-1351, 105 NLRB 618,
enfd. 214 F. 2d 929 (C.A. 2) ; Sharples Chemicals, Inc., 100 NLRB 20, 30, enfd. 209,
F. 2d 645 (C.A. 6) ; F.T C. v. Cement Institute, 333 U.S. 683, 705.
2 The findings in this section are based on the undisputed and credited testimony of
Glover Although Pearson Walsh was under the impression that the additional 5 cents
for specific individuals had been discussed at an earlier meeting, he admitted that "I just
don't remember" and that "it could have been" at the July 28 meeting
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he thought Fulenwider was a bit smarter than the other employees. However, Pope
agreed to take the matter up with Melvin Gentry, who was on vacation that week.3
4. Meeting at Pope Walsh's home with Gentry and Pirtle on August 1
Pearson Walsh admitted that on Friday, July 31, he had a discussion in his
office with his son and suggested that Pope get in touch with Melvin Gentry to see if
they could not talk to the boys to have them get back to work at the pace they have
previously been working .4
At Pope Walsh's invitation, Melvin Gentry and Kenneth Pirtle, employed as a
checker in the shipping department, met with Pope at the latter's home on Saturday,
August 1. Gentry had just returned from a 2 weeks' vacation. Pope asked Gentry
to use his influence to try to get the men back to work at their normal pace. Pope
admitted that he told Gentry and Pirtle that he could not understand why "a bunch
of men would have to go to somebody for help," that if they wanted to do some-
thing "they should have gone and banded themselves together or gone individually
to the employer and asked him for an increase in wages, instead of going and
joining that and letting somebody else do their talking for them." Gentry credibly
testified that Pope stated he was also interested in trying to work something out
to the employees' satisfaction in the way of an organization, "something like a com-
pany union," and that he wanted Gentry to talk to the employees to see if they
would be interested in it , and that if the employees were interested he (Pope) would
be glad to help out in "organizing a company union" and was "sure" that the Company
would take care of their attorney's fees. Pope admitted that he told Gentry that
if the employees "felt like they wanted to belong to a union they should form a
3 The findings in this section are based on the credited testimony of Donny Fulenwider,
which was 'orroborated in part by employee Winfield Dickson who overheard part of the
conversation. Pope Walsh admitted having two conversations with Fulenwider about that
time. He admitted that in one conversation the matter of hiring a new employee at a
higher rate was mentioned. He testified that the asked Fulenwider if he would be willing
to talk to the employees to get them to go back to work at their former pace and sug-
gested that Fulenwider get together the other employees and as a group talk to Pope
Walsh'i father about a raise He also testified that in another conversation he told
Fulenwider that if there had not been a union in the plant several of the employees would
already have received pay increases, that he understood his father had made an offer to
the Union to give certain employees a 10-cent per hour wage increase and the remaining
employees a 5-cent per hour wage increase . He testified that he did not recall anything
else that was said, and denied saying that if the employees dropped the Teamsters Union,
they "would be guaranteed a 10-cent raise Monday morning." Under all the circum-
stances, including my observation of the demeanor of the witnesses, I do not credit the
testimony of Pope Walsh to the extent that it contradicts that of Fulenwider.
4 Employee T. O. Shelton testified that during the same week he overheard a conversa-
tion between Pearson Walsh and his son, Pope, while they were in the display room, that
as soon as the conversation began Shelton motioned to employee Long who joined him,
that Pope wanted to get the employees a higher wage, that Pearson replied that the
minimum wage law was going to move up the lower wage scale and that he might as well
move the employees up to that if they would drop the Teamsters Union and take the
company union." On cross-examination, Shelton testified that it was Pope who asked his
father if a wage increase could not be given to the employees "if they would drop the
Teamsters Union and take a company contract," and that Pearson replied that "he
might as well see if they could work up something like that" because the minimum wage
law would be increased and 'he would have to raise the wages to $1.25. Long testified
that, while he did not overhear the entire conversation, he 'heard Pope ask his father,
Pearson, if he would not consider raising the order fillers to $1 25 per hour, and that
Pearson agreed that it might be a pretty good idea because he thought the wage and hour
law might be changed to raise the minimum to $1.25 per hour. Pearson Walsh testified
that he did not recall such a conversation, admitted that it would not have been unusual
for him to have discussed employee wages with Pope, and denied discussing the formation
of a company union with Pope. Pope Walsh admitted having a conversation with his
father in the display room about raising employee wages. He testified that he told his
father that he understood the minimum wage law would soon be amended and that his
father would be better off to raise the employees to $1.25 per hour minimum because he
would have to do it sooner or later, and that his father replied that he would take it
under consideration
Upon consideration of the foregoing, I do not, under all the circumstances, credit
Shelton's version of this conversation
WALSH-LUMPKIN WHOLESALE DRUG COMPANY 305
company union ." They then discussed the wage scales of three other wholesale
drug houses which Pope had taken from his father 's desk . These were for McKesson
& Robbins of Fort Smith , Archer Drugs of Little Rock, and Barrons of Tyler.
The first two companies admittedly were represented by a union . Some of these
rates admittedly were higher than those at Respondent . Pope gave the wage scales
to Gentry and suggested that Gentry might discuss the highest wage scale with
the men and tell them that "in case they did form a company union that they
could probably work up to those rates."
Gentry and Pirtle agreed to get in touch with all the employees who belonged to
the Teamsters Union and have them come out to Gentry's house.5
5. Employee meeting at Gentry's home on August 1
Gentry and Pirtle contacted all the employee members of the Teamsters Union
to attend a meeting at Gentry 's home that Saturday evening on August 1. About
15 employees attended , including truckdrivers , order fillers , packer, and checkers.
Gentry presided and told the men that he and Pirtle had discussed their problems
with Pope Walsh and that Pope had asked him to find out if the men would be
interested in forming a company union and dropping the Teamsters Union, that if
they were interested in a company union they could have their own lawyer draw
up the contracts and that Pope said they would be reimbursed by the Company for
the attorney 's fees. Gentry then read the wage scales of the neighboring drug
companies, and said that they would take the highest wage scale and could probably
work out something whereby the employees could eventually reach those rates, and
that the new scale would be put into effect as soon as the employees voted out the
Teamsters Union and agreed to have a company union . The highest wage scale
read were those of the McKesson & Robbins Company where the employees
in each classification were receiving a considerably higher rate, in some cases as
much as 30 cents per hour, more than what Respondent had offered the Union
during the negotiations . Gentry also stated that this was all Pope Walsh 's own idea,
that Pope said he was pretty sure he could get his father to agree to most of it, and
that Gentry would report the results of this meeting to Pope Walsh.
Gentry then asked for a standing vote of those employees who wished to remain
with the Teamsters Union , and that those employees should remain seated who were
interested in having Gentry find out more about forming a company union. All
the employees in attendance stood up, thereby voting to stick with the Teamsters
Union.6
6. Gentry reports to Pope Walsh , and Pope notifies his father, Pearson
Sometime on Sunday afternoon , August 2, Pope Walsh telephoned to Gentry
and inquired as to how things went at his home. Getry replied that "nothing had
come of the meeting" at his home, and that "the boys were not in favor of anything"
along the lines which he and Pope had discussed the preceding day. Pope admittedly
then stated that "if they were not interested there is nothing I can do." 7
Pope testified that on Sunday evening he telephoned to his father, Pearson, re-
ported that he had talked to Melvin Gentry and that Gentry had stated "nothing has
come of it," and that Pope did not know what the boys were going to do but that
it "looked hopeful ." According to Pearson Walsh's testimony , Pope stated on the
telephone that he and Melvin Gentry had gotten together and that they thought
the "trouble we had been having would be worked out."
7. Meeting of Glover and employee committee with Pearson Walsh on Monday
morning, August 3
On Sunday morning, August 2, employee Davenport telephoned to Glover, the
Union's assistant business agent, at his home in Little Rock, and informed him of
the proposals that had been submitted to the employees at the meeting at Gentry's
home. Glover thereupon went to Hot Springs and discussed the situation with
5 The findings in this section are based on the mutually consistent testimony of Pope
Walsh, Melvin Gentry, and Kenneth Pirtle
9 There is no serious dispute concerning the findings in this section , which findings are
based on the mutually consistent testimony of witnesses for the General Counsel and for
Respondent
7 The findings in this paragraph are based on the mutually consistent testimony of Pope
Walsh and Melvin Gentry
586439-61-vol. 129-21
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union President Smith, who had already been informed of what had transpired
at the meeting at Gentry's home. Smith advised Glover to go to Texarkana to
see what the situation was.
Glover arrived at Respondent' s plant about 8:30 a.m, on Monday, August 3.
He went to the shipping department and asked Davenport to select three other
employees who could confirm Davenport's report as to what had occurred at the
meeting at Gentry's home. Glover then asked Pearson Walsh if he would meet
with Glover and an employee committee someplace where they could talk privately.
At Walsh's suggestion, they all went upstairs in the display room . Present with
Glover was an employee committee consisting of Cassie Davenport, Donny Fulen-
wider, Winfield Dickson, and Tim Shelton.
Glover then told Pearson Walsh of what had been reported to Glover as having
transpired at the meeting at Gentry's home on Saturday evening, that the Company,
acting through Gentry, had offered the employees a greater wage increase than
Respondent had offered the Union if they would drop the Teamsters Union and
establish a company union and that the Company would reimburse the employees
for any attorney's fees incurred. Glover asked the employee committee members if
he had accurately and fairly reported what had occurred at that meeting, and they
replied that he had. Glover then asked Pearson Walsh if he had any knowledge
of these matters. Walsh admitted that he had. Glover thereupon advised Walsh
to contact his attorney, that the Union was the certified bargaining agent, and
that Glover believed Walsh was doing something illegal. After a further brief
discussion, Walsh refused to talk anymore about it without first consulting his
attorney. Glover stated that the Teamsters Union had leaned over backward in an
effort to work out a fair and equitable contract with the Company and that they
had gone about as far as they could. Glover further stated that if Pearson Walsh
cared to contact his attorney, he would be glad to talk to both of them to see if they
could not work out some settlement because "you are on the verge of having a
strike of your employees here." When Walsh stated that his attorney was out of
town, Glover replied that he believed he knew where the attorney could be reached
and emphasized that before they got into a strike situation they should make every
effort to resolve the matter. Glover then offered to pay for the telephone call, but
Walsh refused to call his attorney long distance. Glover then suggested that Walsh
call his attorney at his home to see whether he had left home yet. (Glover later
found out that Walsh's attorney was still at his home at that time.) Walsh refused
to comply with his suggestion. Glover then accused Pearson Walsh of refusing
to sign any kind of an agreement . Walsh admitted that he stated that he had
been informed that a newly hired employee had been threatened by some union
members and that he would not sign any contract as long as that situation prevailed.
Glover then turned to the employee committeemen , and told them that if they
were satisfied with what the Company had offered them (referring to the offers at
the meeting at Gentry's home) and believed the Company would live up to these
offers, then he advised them to take the Company Union and to tell him "to go to
hell" and he would leave for Little Rock. On the other hand, Glover added, if
they wanted to stay with the Teamsters and attempt to get a Teamsters' contract,
they now had authority from the Teamsters to strike in view of what had "happened
over the weekend." Glover concluded with the statement that if the employees met
him outside within 15 minutes, they would put up a picket line, and that, otherwise,
he would get into his car and go back to Little Rock.8
8. The strike commencing August 3
The employee committeemen went back to the shipping room and called a meeting
of the union members. One of the committeemen reported that Pearson Walsh
would not agree to anything, that if they wanted to strike, Glover was waiting for
them outside, or they could take the company contract if they did not want to
strike. All the employee members, about 15 or 16 in number, walked out on
strike.
s The findings in this section are based on the credited testimony of Glover and em-
ployees Davenport, Fulenwider, Dickson, and Shelton Pearson Walsh did not dispute
their testimony in any significant respect He admitted that he did not have an "accurate
memory" of what was said at this meeting With respect to what Glover told him about
the offers made to the employees at the meeting at Gentry's house, he testified that he did
not remember whether he replied that he had heard something about it or that he did not
know about it. He admitted saying that he would not do anything without consulting
his attorney and that he had been told that his attorney would not be in town He also
admitted refusing to telephone to his attorney.
WALSH-LUMPKIN WHOLESALE DRUG COMPANY 307
By 9:30 a.m. a picket line was established, with the pickets carrying signs reading
as follows: "the employees of Walsh-Lumpkin Drug Company on strike for a
contract."
9. Respondent's conduct during the strike
On Friday afternoon, August 7, Ben Pugh Walsh, Respondent's vice president
and brother of Pearson Walsh, approached a group of the strikers, solicited them to
drop the Teamsters Union and return to work, and suggested that they could always
take the company union. Cassie Davenport, one of the strikers in the group, asked
if it was not true that it was not the money but it was the Union that Respondent
was fighting. Pugh Walsh admitted that that was true, that he did not want "those
bastards from Little Rock" coming down to tell him what to do, that his dad had
run the company for 49 years without anybody telling him what to do and he was
not going to start now, and that they were paying a lawyer $1,000 a month to
keep the Union out. Winfield Dickson, another striker in the group, expressed
concern that if the men went back to work on Respondent's terms, they would not
have an assurance of holding their jobs very long. Pugh Walsh again pointed out
that they could still take the company union. He also told the men that he would
leave some reinstatement forms at a local hotel and that anyone who wanted
to go back to work without the Union could fill out one of these forms at the hotel
and get reinstated.
About an hour later, Pugh Walsh returned and tried to pass out the reinstatement
forms to the strikers. When the men refused to take them, he reiterated that they
would be left at a local hotel where the men could get them if they wished. Pearson
Walsh and his father, the president of the Company, were standing on the sidewalk
watching Pugh Walsh as he attempted to pass out the reinstatement forms.9
10. Termination of the strike on December 1, and the strikers' unconditional request
for reinstatement
On December 1, 1959, the employees unanimously voted to terminate the strike
and to apply for reinstatement. That same day, Respondent was notified of the
termination of the strike, and all the strikers named in the complaint, except Donny
Fulenwider who was ill, applied for work to Pearson Walsh. They were all informed
that they had been replaced during the strike and that no work was available for
them. Fulenwider applied for work during the week of December 7 and received
the same answer.
D. The refusal to bargain
1. The appropriate unit and the Union's status as exclusive bargaining
representative therein
The complaint alleges, the Respondent's answer admits, and I find, that all truck-
drivers and warehousemen including order fillers, checkers, stockmen, inventory
clerks, and packers, excluding all office clerical employees, sales employees, guards,
and supervisors as defined in the Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9(b) of the Act.
In a Board-directed election conducted on January 22, 1959, the Teamsters Union
was selected as bargaining representative by a majority of the employees in the
said appropriate unit. On January 30, 1959, the Teamsters Union was accordingly
certified as the exclusive collective-bargaining representative of all the employees in
the aforestated appropriate unit. I find that at all times since January 30, 1959, the
Teamsters Union has been, and is, the exclusive representative of the employees in
the aforesaid unit for the purpose of collective bargaining with respect to rates of
pay, wages, hours of employment, and other conditions of employment within the
meaning of Section 9(a) of the Act.
2. Respects in which Respondent violated Section 8(a)(5) of the Act
As previously found, in the latter part of July, Pope Walsh told employee Fulen-
wider that he would try to get a higher scale of wages put into effect if the employees
would drop the Teamsters Union, and asked Fulenwider if he would use his influence
to get the employees to drop the Teamsters Union. When Fulenwider refused, Pope
Walsh talked to Melvin Gentry and proposed the plan of helping the employees
organize a company union if they voted out the Teamsters Union and then putting
9 The findings in this section are based on the undisputed and credited testimony of
witnesses for the General Counsel. Pugh Walsh did not testify.
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
into effect a higher wage scale than had been offered by Respondent in its negotiations
with the Union. Pope requested Gentry to find out whether the employees would be
interested in such a program. Acting as Pope Walsh's emissary, Gentry informed
the employees, at a meeting called by him at his home for that purpose, that Pope
Walsh wanted to find out if they would be interested in forming a company union
and dropping the Teamsters Union, that the Company would reimburse them for
attorney's fees incurred, and then read the higher wage scales which they could
eventually attain if they voted out the Teamsters Union and agreed to have a com-
pany union. He then called for a vote, with the employees unanimously voting to
stay with the Teamsters Union.
As the Teamsters Union was still the certified bargaining representative, it was a
violation of Respondent's statutory obligation to recognize and deal only with the
exclusive bargaining representative for Respondent to undermine and seek to have
the employees repudiate that representative by dealing with them directly and holding
out the prospect of a higher wage scale than had been offered to the Union in the
contract negotiations, if the employees would form a company union and vote out
their duly chosen bargaining representative. And this is so even if I were persuaded,
which I am not, that a bona fide impasse on wages had been reached at the negoti-
ating meeting of July 28.
I find no merit in Respondent's contention in its brief that it was not liable for the
conduct of Gentry and Pope Walsh, herein found to be statutory supervisors and
management representatives, even though Gentry had voted in the election without
challenge. Gentry made it clear to the employees that these were Pope Walsh's
proposals and that he was merely acting as Pope's spokesman. The employees re-
garded Pope Walsh as a management representative, as in fact he was. Respond-
ent was liable for the conduct of Pope Walsh. Moreover, on the preceding Friday,
July 31, Pearson Walsh had authorized Pope to get in touch with Gentry and see
what they could do about getting the boys back to work at their normal pace. It
was pursuant to this authorization and in an effort to accomplish his father's ob-
jective that Pope Walsh conceived the idea of getting a higher wage scale put into
effect if the employees would drop the Teamsters Union and form a company
union, and of having Gentry present these proposals at a meeting of the employees.
Furthermore, on Monday, August 3, Pearson Walsh found out from Glover and
from Pope about the proposals which had been presented to the employees at the
meeting at Gentry's home. When confronted with these proposals by Glover,
Pearson Walsh admitted that he had heard about these matters, as previously found.
Neither at that time nor at any other time, did Pearson Walsh or any other repre-
sentative of Respondent repudiate the conduct of Gentry and Pope Walsh in this
respect. On the contrary, as previously found, during the strike Respondent adopted
the proposal that the employees drop the Teamsters Union and form a company
union when Pugh Walsh solicited the strikers to return to work. In view of all the
foregoing, I find upon consideration of the entire record as a whole that Respondent
had authorized and/or ratified the activities of Pope Walsh and Gentry in this respect,
and in addition acted in such manner as to lead the employees reasonably to believe
that Gentry and Pope Walsh were acting for and on behalf of management.
At the August 3 meeting with Glover and the employee committee, Pearson
Walsh refused to agree to offer the Union or to consider the same wage terms which
had been offered to the employees through Pope and Gentry if they would vote out
the Teamsters Union and agree to take a company union. Pearson Walsh displayed
an adamant position in refusing to make any reasonable effort to contact his attorney
in the face of an imminent strike Indeed, he admittedly stated that he would not
sign any contract at all because he had been informed that a newly hired employee
had been threatened by some union members. Pearson Walsh's attitude at this
meeting fell far short of the statutory requirement that a good faith and sincere
effort be made to reach an agreement
Finally, by the conduct of Ben Pugh Walsh, Respondent's vice president, in
soliciting the strikers to drop the Teamsters Union and return to work, in again
suggesting the formation of a company union if they returned to work, and in
admitting that it was not the money but that it was the Teamsters Union which Re-
spondent was fighting and paying a lawyer $1,000 a month to keep out, Respondent
was further attempting to undermine and destroy the employees' chosen bargaining
representative and failing to comply with its obligation to bargain in good faith with
the exclusive collective-bargaining representative.10
20 Although such conduct is not alleged as independent violations of Section 8(a) (1) of
the Act, it may properly be considered in support of the allegation in the complaint that
"Respondent, on or about July 22, 1959, and at all times thereafter, failed and refused to
WALSH-LUMPKIN WHOLESALE DRUG COMPANY 309
Upon the basis of the entire record considered as a whole, I find that Respondent's
conduct in the above detailed respects constituted a refusal to bargain in violation
of Section 8(a)(5) of the Act.
E. Discrimination with respect to hire and tenure of employment in violation of
Section 8 (a) (3) of the Act
1. The cause of the August 3 strike
The complaint alleges that the strike was "caused and/or prolonged by the unfair
labor practices of Respondent." Respondent contends in its brief that the strike was
caused by Respondent's refusal to make further economic concessions and that there
is no proof of any casual relationship between the alleged unfair labor practices and
the strike.
In support of its position, Respondent relies heavily on the fact that the union
membership had unanimously voted strike authorization at its meeting on June 27.
However, this strike vote was pursuant to the Union's customary policy whenever an
employer's first contract proposal is turned down. In order for the Local to receive
the cooperation and benefits of the International in a strike, it is necessary for the
Local to present evidence to it that the membership had voted to strike by a two-
thirds majority. Therefore, it is the Union's policy to take a strike vote automatically
when the first contract proposal is turned down so that the Local would be in a posi-
tion of furnishing the International with the required evidence if it should later
develop that a strike is necessary. This was the kind of strike vote which was taken
on June 27. No time was set for the calling of a strike; the vote merely authorized
Glover to call a strike if in his judgment the negotiations had broken down to the
point where there was just no possibility of getting together.
This point had not been reached prior to August 3 and no strike had been con-
templated. Indeed, it was not felt necessary to apply to the International for strike
sanction because, as Glover credibly testified, "we felt we were in a close area of
agreement and at that point did not anticipate there would be a strike." The record
is clear that everything was being done to avoid the use of a strike There was no
intention of calling a strike at the conclusion of the July 28 negotiating meeting. As
previously found, Glover left the meeting with the "distinct" impression that it was
Stewart's next move to submit his latest proposal in writing or to make arrangements
for a further meeting.
I am convinced that the strike was triggered because of the proposals made directly
to the employees at the meeting at Gentry's home on August 1, instead of to the
Union as the certified bargaining representative, and Pearson Walsh's attitude at the
August 3 meeting in acknowledging that he had heard about these matters but
refusing to agree to offer the Union a contract with the same wage scale or to make
any effort to contact his attorney for the purpose of discussing a contract containing
similar wage proposals. Thus, Glover credibly testified to that effect. He further
credibly testified that "we had never permitted the strike to occur . .. until these
things or events took place Saturday, August 1st." And at the conclusion of the
August 3 meeting with Pearson Walsh, Glover told the employees that they now had
the authority to strike "in the light of what has happened over the week-end." ii
Contrary to Respondent's further contention, the fact that the picket signs read that
the employees were "on strike for a contract," is consistent with the findings herein-
above made that the strike was caused by Respondent's conduct in dealing directly
with the employees and offering them a contract with the prospect of a higher wage
scale than had been offered to the Union if they would vote to drop the Teamsters
Union and form a company union and in refusing to agree to offer the Union the
same terms or to make any effort to contact its attorney for the purpose of discus-
sing a contract with the Union containing a similar wage scale.
I have previously found that Respondent's conduct at the meeting at Gentry's home
on August 1 and at the meeting at the plant on the morning of August 3 constituted
unfair labor practices violative of Section 8(a) (5) of the Act. I have further found
that during the strike the Respondent, by the conduct of Vice President Pugh
Walsh engaged in further unfair labor practices violative of Section 8(a)(5) of the
Act. Upon the basis of the entire record considered as a whole, I am convinced and
find that the strike of August 3 was caused and prolonged, at least in substantial part,
bargain in good faith with the Union as the exclusive bargaining agent of all Respondent
employees in the unit described in paragraph 4 above."
"In view of the nature of the strike vote, the men had no authority to strike unless
Glover authorized it
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Respondent's unfair labor practices . Accordingly, I find that the strike was an
unfair labor practice strike.12
2. The refusal to reinstate the strikers upon their unconditional request
It is conceded that upon the termination of the strike on December 1, 1959, the
Respondent refused to reinstate all the strikers named in the complaint when they
unconditionally applied for reinstatement. As the strikers were unfair labor practice
strikers, Respondent was obligated to reinstate them upon their unconditional re-
quest, discharging, if necessary, any replacements in order to provide work for the
strikers; Respondent's refusal and failure to reinstate the strikers constitutes discrimi-
nation against them in violation of Section 8(a) (3) of the Act.13
F. Interference , restraint , and coercion , in violation of Section 8(a) (1) of the Act
Respondent's conduct which has been found to violate Section 8(a)(5) and (3)
of the Act, also constitutes a derivative violation of Section 8 (a)( 1 ) of the Act. In
addition , I find that Respondent also interfered with, restrained , and coerced its
employees in the exercise of their statutory rights and thereby independently violated
Section 8(a)(1) of the Act by the conduct of Melvin Gentry and Pope Walsh in
bypassing the duly certified bargaining representative and dealing directly with the
employees, in holding out to the employees the prospect of a higher wage scale than
had been offered in negotiations with their duly chosen bargaining representative if
they would vote to drop said representative and form a company union, and in offer-
ing to help them in organizing a company union and promising reimbursement by the
Company for any attorney's fees incurred in connection therewith.14
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in connec-
tion with its business 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 Respondent has engaged in certain unfair labor practices, I
will recommend that it be ordered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the Act.
I have found that Respondent engaged in conduct which constituted a refusal to
bargain collectively with the exclusive bargaining representative of its employees
in violation of Section 8(a)(5) and (1) of the Act; that the strike which com-
menced on August 3, 1959, was caused and prolonged by Respondent's unfair labor
practices and hence was an unfair labor practice strike; and that Respondent violated
Section 8 (a) (3) and (1) of the Act by refusing to reinstate the unfair labor practice
strikers, upon their unconditional application after the termination of the strike.
I will therefore recommend that Respondent be ordered (1) to bargain collectively
with the Union , upon request; ( 2) to offer to all the strikers named in the complaint
immediate and full reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges, discharging, if
necessary, any replacements in order to provide work for the strikers; and (3) to
make whole all said strikers for any loss of earnings they may have suffered by
reason of the discrimination against them , by payment to each of a sum of money
equal to that which each normally would have earned as wages from the date of
strikers' unconditional request reinstatement 15 to the date of their reinstatement or
Respondent 's offer of reinstatement , less the net earnings of each during such period,
" See, e g ., Spitzer Motor Sales, Inc., 102 NLRB 437, 452; Talladega Foundry & Ma-
chine Company, 122 NLRB 125, 135 ; The Jackson Press, Inc, 96 NLRB 897, 903: 1fapp
Brothers Company, Inc, 90 NLRB 1513, 1515; N L R B. v Remington Rand Inc, 94 F 2d
862, 872 (C.A. 2), cert. denied 304 U.S. 576, 589
ix See. e g, Lewin-Mathes Company, etc, 126 NLRB 936
14I have not included the conduct of Pugh Walsh during the strike solely because such
conduct was not included in the complaint as an independent violation of Section 8(a) (1)
of the Act
is That date is December 11, 1959, as to Donny Fulenwider, and December 1, 1959, as
to all other strikers
SOUTHEASTERN NEWSPAPERS, IN C. 311
to be computed on a quarterly basis in the manner established by the Board in
F. W. Woolworth Company, 90 NLRB 289, 291-294.
In view of the nature and extent of the unfair labor practices herein found, I am
convinced that the commission of similar and other unfair labor practices by Re-
spondent reasonably may be anticipated. I will therefore recommend that Re-
spondent be ordered to cease and desist from in any other manner infringing upon
the rights guaranteed to employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, Local 878 is a labor organization within the meaning of Section 2(5)
of the Act.
2. All truckdrivers and warehousemen, including order fillers, checkers, stockmen,
inventory clerks, and packers, but excluding all office clerical employees, sales em-
ployees, guards, and supervisors as defined in the Act, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9(b) of the
Act.
3. At all times since January 30, 1959, the above-named Union has been, and now
is, the exclusive representative of all the employees in the aforestated appropriate
unit for the purposes of collective bargaining within the meaning of Section 9(a)
of the Act.
4. By engaging in conduct detailed in III D 2, supra, Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8(a)(5)
of the Act.
5. The strike, which commenced on August 3, 1959, was caused and prolonged
by Respondent's unfair labor practices.
6. By refusing to reinstate the unfair labor practice strikers, upon their uncondi-
tional request, Respondent has discriminated in regard to their hire and tenure of
employment, thereby discouraging membership in the aforestated labor organization,
and has engaged in and is engaging in unfair labor practices within the meaning of
Section 8(a) (3) of the Act.
7. By the above conduct and by engaging in the conduct detailed in III, F, supra,
Respondent has interfered with, restrained, and coerced its employees in the exercise
of rights guaranteed in Section 7 of the Act and thereby has engaged, and is engaging,
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Southeastern Newspapers , Inc. and International Mailers Union,
Petitioner . Case No. 10-RC-4749. October 6, 1960
DECISION AND ORDER
Upon a petition duly filed, a hearing was held before a hearing
officer of the National Labor Relations Board. The hearing officer's
rulings made at the hearing are free from prejudicial error and are
hereby affirmed.
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 [Members Rodgers, Jenkins, and
Fanning].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act
129 NLRB No. 33.