Alcan Aluminum Corp.

National Labor Relations Board - Board Decisions

Oct 24, 1974

214 N.L.R.B. 236 (N.L.R.B. 1974)

236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Alcan Cable West, a Division of Alcan Aluminum
Corporation and United Steelworkers of America,
AFL-CIO. Cases 20-CA-8160 and 20-CA-8251
October 24, 1974
DECISION AND ORDER
By MEMBERS FANNING, KENNEDY, AND PENELLO
On June 6, 1974, Administrative Law Judge Rich-
ard J. Boyce issued the attached Decision in this pro-
ceeding. Thereafter, the Charging Party, Respon-
dent, and General Counsel filed exceptions and sup-
porting briefs. Respondent and General Counsel also
filed answering briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
The Administrative Law Judge concluded that Re-
spondent violated Section 8(a)(3) and (1) by termi-
nating the recall rights of employees Preece, Hent-
horn, Stratton, and Martin. With regard to Martin,
the Administrative Law Judge found, inter alia, that
on April 2, 1974, strikers Coon and Stebbins, along
with Martin, set upon a caravan of nonstriking em-
ployees forming at a local gas station during which
Stebbins assaulted one of the nonstrikers with an alu-
minum cable.
The nonstriker, employee Lucas, ultimately
reached apparent safety in employee Gibson's car
and the caravan left the gas station. However, soon
thereafter, Gibson noticed that his vehicle was being
chased by a car driven by Coon with Stebbins and
Martin as passengers. Coon thereupon drove his ve-
hicle into the rear of Gibson's car sending it into a
50-foot skid. The Administrative Law Judge con-
cluded, on the basis of this incident, that employees
Coon and Stebbins were properly denied recall privi-
leges by Respondent but that Martin, whose role was
basically passive in character, should not be "tarr[ed]
. . . with the excesses of Coon and Stebbins." We
disagree.
The record indicates that Martin was not a mere
onlooker in the April 2 incident. While Stebbins was
assaulting Lucas, Martin was screaming threats in
apparent approval of Stebbins' conduct and joined in
the chase which followed immediately. Although
Martin was not the prime actor in the April 2 inci-
dents, he did voluntarily accompany employees
Coon and Stebbins, did not disassociate himself from
their conduct, and must, therefore, bear a degree of
responsibility for their serious misconduct.' Accord-
ingly, we find that Respondent did not act unlawful-
ly in terminating Martin's right to recall.
The Administrative Law Judge also found that Re-
spondent had justifiably terminated the recall right
of employee Baldwin because the latter had torn the
outside mirror off the car of Respondent's chief neg-
otiator, Brewer. In so finding, the Administrative
Law Judge rejected the General Counsel's argument
that Baldwin had grabbed the mirror in a reflexive
response to Brewer's nudging Baldwin with his vehi-
cle as the latter blocked its progress. Although Brew-
er conceded he may have, in fact, initiated the con-
tact with Baldwin, the Administrative Law Judge re-
lied, in part, on Baldwin's failure to testify in
rejecting the General Counsel's argument.
In determining whether a striker has, through his
misconduct, forfeited his rights to preferential recall,
the Board has, at all times, considered whether the
alleged misconduct is of such gravity as to require, in
the public interest, removal of the protective mantle
which the Act affords striking employees. Not every
impropriety committed in the course of events does,
in fact, deprive the employee of that mantle.' Our
inquiry necessarily considers all surrounding circum-
stances to include analysis of the severity and fre-
quency of the misconduct of the employee involved
and the quality of the evidence tending to establish
that misconduct.
We note first that the strike herein was lengthy,
heated, and, in the Administrative Law Judge's
words, "not a model of restraint." Baldwin's conduct
occurred over 2 months after the commencement of
the strike. The incident depicted above was the only
incident involving this employee. Films in evidence
indicate that it was not uncommon for a picketer to
lose his balance when confronted by the movement
of an oncoming vehicle. Brewer himself conceded
that Baldwin may have ended up on the fender of his
vehicle as a result of the movement of the car and
that Baldwin was "real shocked" after realizing what
he had done. Furthermore the extent of the damage
is not clear. The picture in evidence of the mirror
hanging off the side of Brewer's car does not indicate
whether repair of the damage may have been effect-
ed by merely rescrewing the mounting. No evidence
was presented concerning the cost of the damage and
Brewer testified that he did not pay for the repair. "1
think Alcan paid for that directly . . . [Respondent's
See The Firestone & Rubber Company, 187 NLRB 54, 55 (1970).
2See Coronet Casuals, Inc.. 207 NLRB 304 (1973), and the cases cited
therein.
214 NLRB No. 35
ALCAN CABLE WEST
President] felt a little funny about it or something."
In consideration of all these circumstances we are
unable to conclude that this single, isolated, and ap-
parently minor incident involving employee Baldwin
justifies the termination of his right to recall.
The Administrative Law Judge's recommended
Order and notice shall be amended accordingly to
show an 8(a)(3) violation as to Baldwin, but none as
to Martin.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that Respondent Alcan Ca-
ble West, a Division of Alcan Aluminum Corpora-
tion, Sunset Whitney Ranch, Rocklin, California, its
officers, agents, successors, and assigns, shall take
the action set forth in said recommended Order as so
modified:
1. Delete from paragraphs 2(a) and (e) the name
"J. Martin" and substitute the name "G. Baldwin."
2. Substitute the attached notice for the notice of
the Administrative Law Judge.
3 Although we agree with the Administrative Law Judge that
Respondent 's termination of employee Preece's reinstatement rights violat-
ed Sec . 8(a)(3) and ( I), we do not agree with his rationale for that conclu-
sion. Instead we would find that at all times-both before and after the
April 23, 1974, reinstatement offer-Respondent considered Preece to be a
striker, and , at no point , did Respondent ever offer Preece his former posi-
tion or a substantially equivalent position.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT terminate the recall rights of
economic strikers who do not engage in disquali-
fying strike misconduct.
WE WILL rescind our termination of the recall
rights of E. Henthorn, G. Baldwin, T. Stratton,
and Harry Preece.
WE WILL offer immediate and full reinstate-
ment with backpay to any of the above four em-
ployees who would have been recalled but for
our unlawful termination of their recall rights.
WE WILL, to the extent that compliance with
the preceding paragraph fails to achieve imme-
237
diate reinstatement for the four named employ-
ees, preserve their recall rights, and, as vacancies
occur for which any is qualified, offer him that
position unless he has obtained other regular
and substantially equivalent employment.
ALCAN CABLE WEST, A DI-
VISION OF ALCAN ALUMI-
NUM CORPORATION
DECISION
1. STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge: This case
was tried before me in Sacramento, California, on Decem-
ber 11, 12, and 13, 1973; January 14, 15, 16, 17, 18, 28, 29,
30, and 31, February 1, 1974. The charge in Case 20-
CA-8160 was filed on March 20, 1973, by United Steel-
workers of America, AFL-CIO (herein called the Union).
The charge in Case 20-CA-8251 was filed by the Union on
April 25, 1973. The consolidated complaint issued on Au-
gust 21, 1973, alleging that Alcan Cable West, a Division of
Alcan Aluminum Corporation (herein called Respondent)
had violated Section 8(a)(1), (3), and (5) of the National
Labor Relations Act. Post-trial briefs were filed for the
General Counsel and Respondent.
11. ISSUES
The issues are whether Respondent:
A. Failed to bargain with the Union in good faith be-
tween October 5, 1972, and the onset of a strike among its
employees on January 15, 1973, violating Section 8(a)(5)
and (1).
B. Failed to recall certain strikers on and after April 23,
1973, and ceased to consider Harry Preece for recall after
September 10, 1973, in violation of Section 8(a)(3) and (1).
The latter issues in turn raise several subissues, among
them whether the strike was an unfair labor practice strike,
entitling the strikers to immediate recall even at the cost of
displacing their replacements; and whether, regardless of
the strike's status, certain of the strikers disqualified them-
selves for recall by misconduct during the strike.
III. JURISDICTION
Respondent is a New York corporation engaged at Sun-
set Whitney Ranch, Rocklin, California, in the manufac-
ture of cable products. It annually ships products valued in
excess of $50,000 from that location directly to customers
outside California.
Respondent is an employer within the meaning of Sec-
tion 2(2) of the Act, engaged in and affecting commerce
within the meaning of Section 2(6) and (7).
IV. LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Violation of Section 8(a)(5) and (1)
1. The evidence
On October 5, 1972, following an NLRB election in Case
20-RC-10880, the Union was certified as the exclusive col-
lective-bargaining representative of Respondent's employ-
ees in this unit:
All production and maintenance employees employed
by the company at its Sunset Whitney Ranch , Califor-
nia, facility , excluding plant clerical employees , office
clerical employees , technical employees , professional
employees , guards, and supervisors as defined in the
Act.
The unit normally consists of approximately 100 employ-
ees. The complaint alleges, the answer admits, and I find
the unit to be appropriate within the meaning of Section
9(b) of the Act.
By letter dated October 6 , from Carl Jones , an official of
the Union , to Indru Kriplani , Respondent 's president, the
Union invited Respondent to suggest "a date , time and
place to begin negotiations ." Kriplani replied by letter dat-
ed October 12, stating in part:
[A] meeting within the next couple of days would not
be productive . It would help us both if you can pre-
pare your complete proposals in writing and present
them to us at a meeting to take place on November 3.
The reason for this date is that I am going away for
two weeks and we have not as yet appointed our chief
negotiator . During the week of October 30, we will get
in touch with you as regards a mutually acceptable
time and place . This would be a preliminary meeting
and hopefully serious negotiations will begin soon af-
ter we have had an opportunity to appreciate the exact
extent of your proposals.
Jones answered by letter dated October 16 , confirming No-
vember 3 "for a meeting to present our contract proposals"
and asking that it be held at the plant . Kriplani responded
by letter dated October 27, ruling out the plant as a negoti-
ating site , adding that "our negotiator will be in touch with
you probably on November 2nd to finalize a mutually ac-
ceptable time and place."
On November 1, Respondent retained August Somer-
feld, a labor relations consultant operating under the style
of Sequoia Employers Council , as its bargaining spokes-
man, so informing the Union by letter that day. The Union
meanwhile , on October 20, had conducted an election at
the plant to determine its officers and the employee mem-
bers of its bargaining committe . Those elected to the com-
mittee were Bob Coon , Charles Eastwood , Jerry Martin,
Harry Preece , and Ernie Walker. The election was held
during shift changes. Respondent cooperated fully, its gen-
eral manager , Lee Roullier , even posting a notice, provided
by the Union , announcing the election 's pendency.
The first meeting: The first bargaining session was No-
vember 3, as scheduled, in a guestroom of the Flamingo
Motel, Roseville, California, lasting from about 10 a.m. to
about noon. Present for the Union were Jones, Internation-
al Representative Arthur Mullett, and the five-employee
committee; for Respondent, Sommerfeld, Roullier, and
Basil Kehoe, the head of its quality control department.
Jones, the Union's principal spokesman, began the meeting
by expressing regret for the "unfortunate delays" in its
scheduling, and stating that he wished to work day and
night to reach the earliest possible contract. Explaining his
sense of urgency, Jones said he soon would be going to
Hawaii on business and thus unavailable to stay with ex-
tended negotiations. Sommerfeld replied that he, too, was
anxious that a contract be reached, but that there would be
no point in working through the night at this first meeting
since he would need time to study the Union's proposals.
Jones then tendered the Union's proposals. They con-
sisted of 21 typewritten pages containing fully drafted ter-
minology in 15 subject areas, together with a 3-page index
enumerating 47 areas in all that the Union wished to have
covered by contract. Concerning some of the 32 areas in
which the terminology had not been worked out, the index
indicated the Union's position in a general way. Regarding
wages, for instance, the index stated, "Substantial Salary
Increase"; and it stated concerning hours of work and ov-
ertime:
8 Consecutive Hours
1-1/2 times for Saturday Work
2 times for Sunday Work
Jones characterized the terminology that had been devel-
oped as "boilerplate," adding that the Union's proposals
had been compiled in haste, borrowing extensively from
other contracts. This prompted Sommerfeld to observe that
"every facility was unique" and that he was not amenable
to saddling Respondent with a contract not tailored for it.
Jones continued that , as to areas in which the language had
not been refined, he would orally outline the Union's posi-
tion during the meeting . He also said that there was a cer-
tain amount of "trading stock" in the Union's proposals,
and suggested that they resolve the noneconomic or "lan-
guage" issues first , then take up the cost items. Sommerfeld
agreed to that. So it was that, when Sommerfeld asked
what was meant by "substantial salary increase," Jones an-
swered that the Union was thinking in terms of about $1 an
hour, but would make its specific proposal later. They also
agreed that there would be no agreement until there was
complete agreement on all issues.
Preliminaries out of the way, Jones briefly explained the
Union's proposals, item by item, inviting Sommerfeld's
counterproposals on the "boilerplate" issues. Sommerfeld
demurred, saying that he wanted to digest the document
and review it with company officials before countering.
Jones voiced disappointment with this, commenting that
the boilerplate issues were not difficult or unusual and that
he saw no reason why they could not work into the night to
get them out of the way.
During the meeting, Sommerfeld told Jones that Re-
spondent would not be holding its usual Christmas dinner
for employees that year. He explained that the dinner tra-
ditionally had been a vehicle by which the president re-
ALCAN CABLE WEST
ported to the employees the Company's prospects, an-
nounced wage increases , discussed other possible improve-
ments in conditions, etc., and that that would be inappro-
priate now that the Union was in.' Sommerfeld added that,
in any event, Kriplani would be away to his native India
over the holidays; moreover, that the Company was in per-
ilous fiscal condition, considering even selling the plant,
and it was Respondent's preference not to convey that de-
moralizing possibility to the employees? Jones responded
that he was not concerned about the dinner,,but did want
the employees to get their Christmas turkey as in years
past. Sommerfeld said that would be done, and Jones an-
swered, "O.K."
Also during the meeting, Jones asked that Respondent
provide whatever written materials it had descriptive of job
classifications, wage rates, and fringe benefits. Roullier
complied by mail that afternoon. As the meeting closed,
Jones pressed for a fixed date for the next meeting. Som-
merfeld replied that he could not provide one, but that he
would let the Union know when he had had a chance to
study its proposals, and discuss them with company offi-
cials, and was ready to meet again.
The second meeting: The second session was held No-
vember 29, at the same place. Precisely how that date was
chosen is not clear from the record, but it is evident that
the matter was raised in several telephone calls between
Sommerfeld and union officials, and that there was con-
cern that conflict with the Thanksgiving holiday be avoid-
ed. The meeting lasted from about 10 a.m. to about 1 p.m.
Jones was not present, Mullett assuming his role as chief
union spokesman. Otherwise, attendance on the union side
was as before. Sommerfeld and Roullier appeared for Re-
spondent, Kehoe being absent.
Sommerfeld opened the meeting by saying that, al-
though the Union's proposals seemed but a "hodgepodge
mixture" from various of its contracts, he was prepared to
reply orally to them, and would reduce Respondent's posi-
tion to writing by the next meeting. With that, he ad-
dressed himself to the Union's proposals. To enumerate:
1. Management rights. Sommerfeld said that he was not
in accord with the Union's management rights proposal,
and that he intended to submit a "fairly comprehensive"
counterproposal on the subject to assure to Respondent the
necessary flexibility to run the plant. He added that he
wanted to avoid the "administrative nightmare" of a griev-
ance every time a supervisor picked up a wrench. Mullett
replied that the Union did not mean to bar unit work by
supervisors altogether, but did want it limited to teaching
and demonstrating. Eastwood of the Employee bargaining
committee joined in that Respondent regularly used super-
visors for much more than that. Sommerfeld answered that
1 Respondent's "bluebook," descriptive of certain conditions of employ-
ment before the advent of the Union, stated concerning the Christmas din-
ner: "Each year prior to Christmas, the Company has a dinner, and at that
time one of the executives of the Company reviews the Company's activities
during the past year and gives some indication of the business outlook for
the following year."
2 Respondent was weighing two alternative-sell the plant or expand it to
achieve greater production . Shortly before leaving for India in December.
Kriplani recommended to headquarters in Cleveland , Ohio, that the latter
course be followed . That recommendation was adopted in January 1973.
239
Respondent meant to work supervisors in unit tasks only
"when the occasion demanded it," Roullier noting that it
was not his practice to use supervisors on production
chores unless compelled by exceptional circumstances.
2. Seniority. Sommerfeld stated, in answer to the
Union's proposal of plantwide seniority, that Respondent,
while prepared to reduce the number of job classifications,
would insist on seniority by classification.3
3. Overtime. To Mullett's assertion that procedures were
needed to assure fair allocation of overtime, Sommerfeld
replied that there had been no complaints about the ex-
isting arrangement, nor any evidence of unfairness; conse-
quently, that he saw no point in the creation of a "labori-
ous recordkeeping system" to deal with the situation.
4. Union security. Sommerfeld said that, it being
Respondent's view that each employee should have free
choice whether to join the Union, an open shop was man-
datory. Mullett voiced doubt that this would be acceptable,
but said the Union would consider it.
5. Holidays. Sommerfeld stated that Respondent would
propose continuation of the existing nine paid holidays, as
against the Union's proposal that there be 10. He and Mul-
lett briefly discussed the idea of a "floating holiday."
6. Subcontracting. Sommerfeld commented that the
Union's proposal, providing for the submission of subcon-
tracting plans to a joint "contracting out committee" and
eventually to arbitration in the event of disagreement, was
"harsh and frankly unnecessary" for Respondent's opera-
tion.
7. Dues checkoff. Sommerfeld said without elaboration
that the Union's proposal was unacceptable, and that he
would submit a counterproposal.
8. Uniforms. Sommerfeld said no to the Union's propos-
al that each employee be provided two additional uni-
forms.
Also discussed, although not among the Union's propos-
als, were Respondent's salary continuation plan and the
matter of the Christmas dinner. Concerning the former,
which was a plan by which Respondent paid to employees
on layoff the difference between their unemployment in-
surance benefits and their salaries, Sommerfeld said that
Respondent would prefer to discontinue it, instead raising
wage levels an offsetting amount. That way, he explained,
all employees would benefit, instead of just a few, and Re-
spondent would be able to project its economic exposure
with precision. Eastwood answered that he saw no problem
with this in principle, but that he would have to study it in
its particulars, and in the context of the overall cost pack-
age, before passing final judgment. Sommerfeld did not
indicate the extent to which wages might be raised by elim-
inatingthe plan.
Regarding the Christmas dinner, Sommerfeld repeated
his assertion of the earlier meeting that there would be
none this year, stating the reasons previously advanced. To
Mullett's stated concern about the turkeys, Sommerfeld
confirmed that each employee would receive one as in the
3 Respondent's "bluebook " listed over 40 classifications then in existence.
Regarding seniority, the "bluebook" stated : "Seniority shall ... be fol-
lowed in lay-offs and recall, provided the employees have the ability to perform
the jobs. " (Emphasis supplied.) The practical effect or this language seem-
ingly would be seniority by classification.
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
past, adding that the wives and children would be invited
to the plant, when they were given out, for "goodies" and
dpunch.
As the meeting ended, Mullett complained about the
suitability of the Flamingo Motel for future sessions, both
because of geographic remoteness and the smallness of its
rooms. Sommerfeld responded that the Company would
procure another site and submit written counterproposals
at the next meeting.5 It was agreed to hold the next meeting
December 7, subject to Sommerfeld's verifying with his of-
fice that there would be no conflict.
The third meeting: Sommerfeld learned the afternoon of
November 29 that he had a prior commitment for Decem-
ber 7, notifying the Union by telephone on November 30.
The third session consequently was held December 12, in a
remote portion of the lobby-a lobby meeting room, so-
called-of the Sacramento Inn in Sacramento. It began
about 10 a.m., adjourning 2 or so hours later. Mullett at-
tended for the Union, along with four members of the em-
ployee committee and one Mr. Prader, a union staff repre-
sentative. Sommerfeld and Roullier were present for Re-
spondent, together with Leland Brewer, an associate of
Sommerfeld's with Sequoia Employers Council.
The meeting began with Harry Preece of the employee
committee complaining of the lack of privacy. Little fur-
ther was said on that subject, however, for Sommerfeld
presently tendered to Mullett Respondent's written coun-
terproposals. They consisted of 26 typewritten pages, cov-
ering 20 subject areas, and were accompanied by this let-
ter:
Dear Mr. Mullett:
At our most recent meeting we reviewed the various
aspects of the Union's proposals. At that time you re-
ceived the Company's initial response and the reasons
in support. Subsequently, the Company again very
carefully considered their position as related to the
Union's proposals. Attached you will find our written
response.
As you will recall, the discussions relating to Seniority
were very candid. The attached proposals further re-
flect the Company's position to retain the right to
judge its employees.
The bargaining committee expressed serious misgiv-
ings about supervisors performing so called bargaining
unit work. We have further considered this matter and
do not feel work restrictions should be placed upon
the supervisors.
Please note the Management Rights as proposed by
the Company also answers several of your proposals,
and by doing so, constitutes our proposal on these
issues.
A "reception" was held at the plant December 23, during which turkeys
were distributed among approximately 100 employees and "goodies" and
punch were provided for wives and children. The cost of this affair was
about $1,300.
5 There is conflict whether Mullett asked that Respondent's counterpro-
posals be furnished before the next meeting to give the Union a chance to
prepare for it. Mullett testified that he did , Roullier and Sommerfeld that he
did not . Roullier and Sommerfeld are credited . Roullier in particular was
impressive in recall , articulation , and concern for the truth.
The Union has expressed a particular desire to obtain
a Union Security clause (Compulsory Union Member-
ship and/or tender of fees). We believe individual
freedom is an undeniable right, and therefore propose
the attached Employee Security clause (Voluntary
Union Membership). Although we have not submitted
a proposal at this time, we would accept a dues check-
off, providing we can agree on a simplified voluntary
procedure for implementation and cancelation; with
consideration being given to the Company for their
work in making such deductions.
Attached we are submitting the following: Articles of
Agreement; Management Rights; Discrimination;
Recognition; Seniority; Steward; Casual Employees;
Grievance Procedure; Arbitrator's Authority; Dis-
charge and Disciplinary Procedure; Absences, Notifi-
cation and Personal Leaves; Visitation (For Union
Representatives); Military Leave; Employee Security;
Unit Work for Supervisors; Hours of Work and Over-
time; Assignment of Overtime; Safety; Holidays; and
No Strike-No Lockout. These submissions are subject
to correction.
It is our understanding the Union's preference is to
defer action on economic issues until we have reached
agreement on contract language. We reserve the right
to submit additional proposals in response to the
Union's demands.
We are most anxious to reach an agreement, and re-
quest you give these proposals your careful consider-
ation.
In keeping with the earlier understanding to dispose of
noneconomic issues first, Respondent's submission did not
deal with cost items.
Mullett, after quickly thumbing through the document,
called a caucus, remarking that it was necessary only be-
cause Respondent had failed to submit its proposals in ad-
vance of the meeting. The caucus lasted close to 2 hours,
after which Mullett announced that the Union would need
still more time to study the matter, and suggested adjourn-
ment. Sommerfeld asked if he had any questions or desired
any clarification; Mullett said no. The meeting closed with
Mullett saying that the Federal Mediation and Concilia-
tion Service would be represented at the next meeting; that
Sommerfeld would be hearing from the mediator about
time and place.6
The fourth meeting: Following the December 12 meeting,
Mediator Tony Vavrus of the FMCS initiated several tele-
phone calls to Sommerfeld and to union officials regarding
a date for the next session , the process being complicated
by the Christmas-New Year's interlude. January 4, 1973,
finally was settled upon.? The fourth meeting was held that
day at the Sheraton Inn in Sacramento, under the guidance
6 Mullett's testimony is discredited that there was agreement to meet
again not later than December 15. This not only was at odds with the
testimony of Roullier, Sommerfeld , and Brewer , but with the undisputed
testimony that the mediator was to arrange the next meeting.
7 Although sketchy in this regard , the record indicates that January 4 was
one of the dates advanced by the mediator for the next meeting . He appar-
ently proposed two or three other dates as well . The record does not disclose
what those were, the bases for their being rejected , or who rejected them.
ALCAN CABLE WEST
of Mediator Vavrus, lasting from about 10 a.m. to 5 p.m.
Edgar Stuart, a staff representative was the Union's princi-
pal spokesman this time. Mullett, although present until
about noon, took a passive role. The employee committee
also was present. Leland Brewer was Respondent's chief
spokesman, Sommerfeld being ill.8 In addition, Roullier
and Roger Dittmer, a foreman, represented Respondent.
Stuart, after introducing himself, proclaimed that the
membership had rejected Respondent's submission, and
suggested that further consideration be given the Union's
proposals.9 Brewer asked that he state, specifically, what
was wrong with Respondent's proposals, to which Stuart
said that, in view of the members' sentiments, there was no
point even in talking about it. Stuart continued that the
Union's proposals were much like the provisions of Alcan
contracts elsewhere, that there was "nothing outlandish"
about them. Brewer countered that Respondent was not
interested in contracts at other plants, only in one tailored
to its circumstances. Brewer at length suggested that they
place the two sets of proposals side by side for purposes of
discussion and comparison. Stuart rejected that, adhering
to his insistence that they concentrate on the Union's pro-
posals.
It at last was agreed, per Stuart's wishes, to look afresh at
the Union's proposals. An item-by-item perusal ensued,
taking the meeting into the afternoon.) That accom-
plished, Brewer again asked that the two sets of proposals
be considered side by side. Stuart relented this time, and
the item-by-item process was repeated, attention now being
given to Respondent's proposals. Not surprisingly, the wit-
nesses had some trouble in their testimony segregating
comments made during the first go-round from those dur-
ing the second. The essence of the comments on the several
subjects, made one or the other or both times, follows:
1. Articles of agreement. The parties were in agreement,
Brewer assenting to the Union's proposal that the number
of the local union be inserted.
2. Recognition. Stuart concurred in Brewer's view that
recognition be limited to the plant in question; that there
be no accretion clause. Stuart, however, objected to the
exclusion of supervisors from the unit description in
Respondent's proposed recognition clause, Respondent
elsewhere proposing no limit on supervisors' doing unit
work.
3. Unit work by supervisors. Continuing the foregoing
discussion, Stuart said that the Union could not agree to
supervisors' taking work from unit people, except in emer-
gencies. Brewer answered that Respondent's proposal did
not envision supervisors doing unit work in ordinary cir-
cumstances; that it would be inefficient for them to do unit
work on a regular basis.
4. No-discrimination. Stuart objected that Respondent's
8 Sommerfeld developed pneumonia before Christmas, remaining disa-
bled for several weeks.
9 There is no evidence that a membership vote in fact had been held,
causing one strongly to suspect that Stuart' s mention of such an event was
purely a ploy.
to
Roullier and Brewer are credited over the contrary testimony of Stuart
and Eastwood that the Union 's proposals were reviewed first . Roullier, as
previously noted , was an exceptionally convincing witness , as was Brewer.
Moreover , Eastwood 's testimony contradicts itself on this point.
241
proposal did not bring union membership within its protec-
tive embrace, mentioning in passing the need to standard-
ize lunchbreaks for men and women. Brewer agreed to the
latter. Concerning the former, he said that, although laws
amply treat with the situation, he would be agreeable to the
inclusion of union membership and nonmembership.
5. Seniority. To the Union's insistence upon plantwide
seniority, with some allowance, according to Stuart, for
"expertise," Brewer reiterated Respondent's insistence on
seniority by classification.
6. Union security. Stuart said the Union might consider
a grandfather arrangement exempting present nonmember
employees from joining. He added, however, that union
security was most important to the Union; hence, that was
the most it would give. Brewer said that he would reserve
comment until seeing such a proposal in writing.) t
7. Management rights. Brewer observed that, this being
a first contract, Respondent was apprehensive about re-
stricting its flexibility as proposed by the Union; that
Respondent's proposal would be much better for it without
posing any threat to the Union.12
8. Safety. Stuart argued that since the employees' lives
were at stake, the Union should have a strong voice in the
membership of the safety committee. Brewer replied that
there already was an effective safety committee, which in-
cluded employees, that Respondent's safety record was
good, and that the Occupational Safety and Health Act
provided yet further protection.
9. Discipline. Stuart wanted Respondent's language per-
mitting "discharge for cause" to read "just cause." Brewer
said he would have to think further on that.
10. Breaks. To Stuart's insistence that all employees re-
ceive a half-hour lunchbreak, off the clock, Brewer said it
was essential that some employees eat at their machines to
ensure continuity of production.
11. Plant access. Stuart said that Respondent's visitation
proposal for union official was unduly restrictive, and
would hamper the investigation of grievances.
12. No-strike, no-lockout. There was agreement on this.
13. Overtime. Stuart again voiced the Union's concern
that provision be made for fair allocation of overtime, and
Brewer again stated Respondent's position that, there nev-
er having been a problem, there was no need to create a
"bureaucratic nightmare." Stuart asserted additionally that
Respondent's overtime proposal was regressive.(; Brewer
replied to this that such is the nature of bargaining-there
is no assurance that existing conditions will be maintained
or improved upon.
14. Holidays. Stuart charged that Respondent's holiday
proposal likewise was regressive. Brewer answered that
Stuart apparently misunderstood Respondent's position,
for it was its wish to maintain the existing 9-holiday struc-
The Union never did tender a written proposal of this nature.
12
While he and Stuart discussed the Union's management rights propos-
al, during the first part of the meeting , Brewer attempted to draw a compari-
son with Respondent 's proposal. Stuart squelched him with a statement to
the effect that they were talking only about the Union's proposals, not
Respondent's.
The record does not disclose why Stuart considered this to be so. He
presumably was referring to the proposal's failure, contrary to the past prac-
tice as set forth in Respondent 's "bluebook ," to pay overtime for work in
excess of 8 hours in a given day.
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ture. The Union continued to press for 10.
15. Salary continuation. Stuart also labeled as regressive
Respondent's proposed discontinuance of the salary con-
tinuation plan, apparently being unaware of Sommerfeld's
November 29 assurance of a commensurate improvemel.t
of wages.
16. Job classifications. Stuart likewise expressed strong
opposition to Respondent's proposal to reduce the number
of classifications, refusing to see this as a quid pro quo to
the Union's relinquishing its demand for plantwide senior-
ity.14
17. Absences. Stuart protested that Respondent's pro-
posal, requiring employees to notify Respondent during
the first day of any absence, was burdensome. Brewer said
the proposal was subject to modification, but that Respon-
dent was not going to absolve the employees completely
from such a requirement.
18. Arbitration. Stuart took issue with Respondent's
proposal that the respondent in an arbitration proceeding
have sole say, from a list furnished by FMCS, in the selec-
tion of an arbiter. To Brewer's rejoinder that the Union,
rather than the Company, might be the respondent in a
given arbitration matter, Stuart commented that, in the na-
ture of such things, the Company was far more likely to be.
Although it was not a subject of either party's proposals,
Stuart asked Brewer what Respondent planned to do in
lieu of the Christmas dinner. Brewer repeated the reasons
for its not being held, adding that the matter had been
discussed and resolved with Jones and Mullett. Brewer said
he would check with them.
While the parties seemed to concur on some issues on
January 4-articles of agreement; a no-discrimination pro-
vision; a no-strike, no-lockout provision; and that there be
no accretion clause-nothing was formalized and neither
side considered the issues to have been appreciably nar-
rowed. Even so, Stuart's testimony that they had not
agreed on anything, "not even a preamble," perhaps was
unduly bleak.
At meeting's end, Stuart suggested that they meet again
the next day, January 5, same time and place. Brewer said
that would be impossible; that no one from the Company
would be available. Brewer added that arrangements for
future meetings should be made with Sommerfeld. Never=
theless, with the mediator's blessing, Stuart announced that
he, the employee committee, and the mediator would be
there January 5.
True to his word, Stuart did show up the next day, as did
the employee committee and Mediator Vavrus. Brewer,
true to his word, did not show, nor did anyone else for
Respondent. At 2 p.m. that day, a Friday, the employees
walked off the job, not to return until the following Mon-
day. Involved were day and night shifts Friday, and a Sat-
urday shift. The plant would have been down Sunday, re-
gardless. Stuart admitted at a bargaining meeting January
19 that the walkout had been a pressure tactic in fur-
therance of the Union's bargaining position.
On January 8, Sommerfeld and the Union' s Jones con-
14 Stuart testified that Respondent wanted to reduce the number of classi-
fications to four or five. As mentioned previously, the "bluebook" specified
over 40.
versed by telephone concerning a future meeting date.
Sommerfeld proposed January 19, and Jones said any ar-
rangements would have to be verified with Stuart. Som-
merfeld accordingly informed Stuart, by letter dated Janu-
ary 9, that "we still offer to meet on January 19, 1973"; and
Stuart sent a letter to Sommerfeld, also dated January 9,
stating in part:
As you know there has been only four meeting's con-
cerning these negotiations in approximately four
months, and those four meeting's have borne very lit-
tle fruit in fact nothing, to my knowledge has been
agreed to, with respects to an agreement.
Today, I spoke with your Secretary Julie and she in-
formed me that you would be willing to meet on Janu-
ary 19th, 1973. I appreciate your thought however
with the circumstances being as they are it is of the
upmost importance that a Meeting be held prior to
that time.
Please understand that should you not be able to meet
we would be most happy to meet with anyone you
designate.
It is of the utmost importance that we meet otherwise
a work stoppage could occur due to no talks, and I
personally do not want this to happen, however, you
should understand that should a work stoppage occur
it would be due to the fact the Company had refused
to bargain and I point out again, the Union is willing
to meet with anyone you designate should you not be
able to meet in an effort to avert any type of work
stoppage. Hoping to hear from you soon with regards
to this matter.
Also on January 9, Jones telephoned Roullier, during
which conversation the two agreed to meet January 16 for
lunch to discuss the bargaining situation. Roullier later
canceled on advice from Sommerfeld, who believed this to
be part of an effort by the Union to circumvent and discre-
dit him as Respondent's spokesman.
On January 12, the Union convened a meeting of unit
employees. Stuart and Eastwood reported to them that Re-
spondent had not been bargaining in good faith, mention-
ing the time lapses between meetings, that Respondent was
bargaining regressively relative to existing benefits, and
that it was using Sommerfeld's illness as an excuse for de-
lay. Stuart recommended a strike. A strike vote followed,
adopting that recommendation. The date set was January
15. The strike began as scheduled, lasting until April 23.
Never before the strike did the Union expand in written
form on its original incomplete written proposals.
The strike did not prevent the parties' meeting January
19 for further bargaining, nor frequent and lengthy meet-
ings thereafter.15 The parties have reached tentative agree-
ment on a number of issues, but total agreement still
evades them. It being the General Counsel's position that
all parts of Respondent's 8(a)(5) misconduct were in place
15 The parties stipulated that there were 30 to 35 bargaining meetings
between the start of the strike and trial herein approximately I I months
later, and that most of the meetings lasted several hours.
ALCAN CABLE WEST 243
before the strike, and that no additional indications of bad
faith later emerged, the subsequent meetings will not be
described.
2. Analysis of the alleged violation of
Section 8(a)(5) and (1)
An essential of good-faith bargaining, within the mean-
ing of Section 8(a)(5), is a genuine desire to reach agree-
ment. As the Supreme Court stated in N.L.R.B. v. Insur-
ance Agents' International Union [Prudential Insurance Co.],
361 U.S 477, 485 (1960):
Collective bargaining . . . presupposes a desire to
reach ultimate agreement , to enter into a collective
bargaining contract.... This was the sort of recogni-
tion that Congress . . . wanted extended to labor
unions; recognition as the bargaining agent of the em-
ployees in a process that looked to the ordering of the
parties' industrial relationship through the formation
of a contract.
To this the Board has added that "the mere willingness of
one party in the negotiations to enter into a contract of his
own composition also does not satisfy the good-faith bar-
gaining obligation." Wal-Lite Division of United States Gyp-
sum Co., 200 NLRB 1098, 1101 (1972).
The General Counsel contends that the totality of
Respondent's prestrike conduct reveals a lack of the requi-
site contractual desire, the parts alleged to comprise that
totality being:
(a) Kriplani's failure, in his letter to the Union of Octo-
ber 12, to suggest a meeting before the week of October 30.
(b) The 26-day lapse (November 3 to 29) between the
first and second bargaining meetings , and Respondent's
refusal at the first meeting to agree on a date certain for the
next.
(c) Respondent's failure to adhere to the December 7
date for the third meeting, necessitating its rescheduling to
December 12.
(d) The 23-day lapse (December 12 to January 4) be-
tween the third and fourth meetings.
(e) The failure of Respondent to be represented at the
January 5 followup to the January 4 meeting.
(f) Respondent's failure to make a counteroffer at the
first meeting, its addressing itself to the Union's proposals
at the second meeting rather than making a counteroffer,
its failure to make a written counteroffer until the third
meeting, and its failure to provide the Union with copies in
advance of that meeting.
(g) Respondent's refusal to accede to the Union's stated
wish that they undertake marathon 'round-the-clock bar-
gaining.
(h) Respondent's failure to agree to any of the Union's
proposals, and its failure to reciprocate the Union's state-
ment that it was prepared to make concessions-that there
was "trading stock" in its proposals.
(i) Respondent's proposing, in its counteroffer, condi-
tions less generous in certain respects than those in exis-
tence. The General Counsel cites, in this regard, the pro-
posals to reduce the number of classifications , eliminate
the salary continuation plan, institute seniority by classifi-
cation, and eliminate overtime for over 8 hours worked on
a given day; and the failure to propose a wage progression
plan at least matching that in the "bluebook."
(j) Roullier's cancellation of the scheduled January 16
meeting with the Union's Jones.
(k) The cancellation of the Christmas dinner.
Examining these parts, singly and in their aggregate, one
is compelled to the conclusion that, while Respondent's
approach to prestrike bargaining was not overweeningly
zealous, it did not reach unlawful proportions. Some of the
General Counsel's arguments to the contrary seem almost
to presuppose a double standard of bargaining behavior.
Thus, while the General Counsel would blame Respondent
for the delay of the first meeting until November 3, the
Union had not chosen its employee bargaining committee
until October 20, and its written proposals on November 3
were so incomplete and haphazardly assembled as to raise
doubt of its ability to make an earlier showing.
Nor would it be right to hold Respondent liable for the
delay between the December 12 and January 4 meetings.
Not only were arrangements for the latter made by Media-
tor Vavrus, at the Union's behest; but there was the inter-
vention of the holiday season, which inevitably is disrup-
tive of commerce. As for Respondent's failure to appear on
January 5, Stuart was adamant in his insistence on that
date, without exploring alternatives, despite Brewer's dis-
closure that Respondent could not and would not be repre-
sented. It was a power play, bringing greater discredit to
the perpetrator than to Respondent for refusing to submit.
That Respondent failed to make any on-the-spot coun-
teroffers at the first meeting, having never before seen the
Union's proposals, perhaps was more consistent with a de-
sire to reach a sound and reasoned agreement than no
agreement at all; and in any case was no less reasonable
than the Union's adjournment of the December 12 meet-
ing, without any dialogue to speak of, upon receipt. of
Respondent's written proposals. Similarly, the assertion
that Respondent showed bad faith during the second meet-
ing, by Sommerfeld's addressing himself to the Union's
proposals rather than proffering counter-proposals, ignores
the perfect appropriateness of his doing just that in the
circumstances ; and rests on semantic nicety, besides, the
reality being that Sommerfeld by whatever descriptive la-
bel revealed Respondent's position in a number of areas in
the process.
That Respondent refused to join with the Union in mar-
athon bargaining, far from showing bad faith, was alto-
gether consonant with respect for bargaining as a reasoned
deliberative process; and the failure of Respondent to mir-
ror the Union's comment that its proposals were larded
with "trading stock" might well indicate that the greater
sincerity, in terms of proposal content, was on its side.
Moreover, although the record reveals Respondent as dis-
posed toward hard bargaining, it portrays the Union, most
notably with Stuart as spokesman, in that same flinty light.
Even at that, the rigidity was not absolute, and Section 8(d)
of the Act precludes a finding of bad faith on the refusal to
agree to a proposal or make a concession . H. K. Porter Co.
v. N.L.R.B., 397 U.S. 99 (1970); United Steelworkers [Flori-
da Machine & Foundry Co.] v. N.L.R.B., 441 F.2d 1005
(C.A.D.C., 1970).
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Concerning the alleged regressivity of certain of
Respondent's proposals, its idea of reducing the number of
classifications, coupled with seniority by classification, in
part was to meet the Union halfway on its proposal for
plantwide seniority; elimination of the salary continuation
plan envisioned a wage boost as quid quo pro, a notion
agreeable in principle to the Union at the second meeting;
seniority by classification seemingly comported with estab-
lished practice as defined in the "bluebook"; and the fail-
ure to propose a wage progression scheme presumably was
a manifestation of the earlier understanding to save cost
issues for last. It is true that Respondent's overtime propos-
al was regressive in its elimination of premium pay for over
8 hours in any I day, but, as Brewer correctly observed on
January 4, lawful bargaining does not preclude that possi-
bility.
Nor was there anything damning in Roullier's cancella-
tion of the January 16 meeting with Jones, or the cancella-
tion of the Christmas dinner. Regarding the former, Roulli-
er was acting out of commendable concern for the orderly
conduct of negotiations through established channels; as
for the latter, Sommerfeld made full disclosure to the
Union, whose spokesmen voice acquiescence, at both the
first and second meetings.
That leaves the 26-day lapse between the first and sec-
ond meetings, Respondent's failure to adhere to the De-
cember 7 date for the third meeting, and its failure to fur-
nish the Union with copies of its counterproposals in ad-
vance of the third meeting. The first meeting having closed
that Sommerfeld would contact the Union when ready to
resume, Respondent must be held accountable for much of
the lapse between the first two meetings, Thanksgiving also
partly to blame. But, Thanksgiving or no, the one lapse
alone would not carry a finding of bad faith; and, as this
analysis elsewhere suggests, there is no link with a larger
pattern to assist it in that direction.
Concerning the rescheduling of the December 7 meeting
to December 12 and the failure to provide advance copies
of the counterproposals, the one did not cause a delay in-
dicative of bad faith and the other no more betokened bad
faith than did the Union's not supplying copies before the
first meeting.
To conclude, Respondent did not violate Section 8(a)(5).
See generally, WCUE Radio, Inc., 209 NLRB 181 (1974);
Alkahn Silk Label Company, 193 NLRB 167 (1971); W. L.
McKnight, d/b/a Webster Outdoor Advertising Company,
170 NLRB 1395 (1968); The Proctor & Gamble Manufactur-
ing Company, 160 NLRB 334 (1966).
B. The Alleged Violations of Section 8(a)(3) and (1)-The
Reinstatement Situation Generally
1. The evidence
The strike was not a model of restraint, either at or away
from the picket line. Respondent's administration building
was under frequent rock barrage from the pickets, several
broken windows resulting; 16 delivery trucks and vehicles
16 Respondent eventually boarded up the windows of the administration
building.
of nonstrikers likewise were stoned; windows of nonstrik-
ers' vehicles were bashed in by ball bats; mirrors were rip-
ped from cars passing through the picket line; car finishes
purposely were defaced; at least one tire was knifed flat;
there was vehicular harassment of nonstrikers on the high-
ways; and sundry scuffles occured at the picket line, along
with one full-scale riot. On a gentler note, the pickets
voiced the traditional epithets and threats to nonstrikers
and company officials; and regularly ambled in front of
incoming and outgoing vehicles, delaying their progress
variously from several seconds to several minutes.17 Some
of this was recorded on film in evidence. Pickets were ar-
rested from time to time, and the Superior Court of Placer
County issued an order on January 30, 1973, restraining
certain picketing activities, which was modified and broad-
ened on April 5.
The strikers voted April 17 to return to work on April 23.
The Union's Stuart so informed Roullier that evening, both
by telephone and telegram. The telegram stated in relevant
part:
This will confirm our telephone conversation of this
evening wherein I informed you that all employees of
Alcan Cable West, which are presently on strike, are
returning to work on Monday April 23 at 7:00 a.m.
Having been operating with permanent replacements,"
Respondent busied itself between April 17 and 23 de-
termining where openings existed, which returnees to place
in those openings, and which strikers to be denied recall for
strike misconduct. It was decided that seniority would de-
termine order of recall. Further to facilitate an orderly re-
turn, Sommerfeld and Brewer met with Stuart and the em-
ployee bargaining committee on the evening of April 18.
The meeting failed its purpose, however, Stuart insisting
that all the "scabs" be fired, adding that he was not inter-
ested in negotiating a back-to-work agreement.19
The strikers assembled in Respondent's parking lot on
April 23 at 7 a.m. Roullier read to them this prepared state-
ment:
I am glad to see that all of you are here today. As you
are aware, during your absence the Company hired
permanent replacements for some of the positions in
the plant. We have 10 openings today and expect to
have more in the immediate future. The positions
which are open today are:
Two Extruder Utilities
One Twister
URD Operator
17 Respondent ' s nonstriking personnel queued up in vehicular caravans
going to and from work . Picketers commonly delayed each car in a caravan,
the result being that those to the end of a caravan were delayed much longer
than those at the head.
is The General Counsel does not dispute the permanency of the replace-
ments.
19 Sommerfeld and Brewer are credited that, from Respondent's vantage
point at least , the reason for the meeting was to discuss a back - to-work
agreement . Stuart saw it differently : "At one time they started to talk about
one of those people. and I said I wasn't there to discuss the scabs. I was
there to discuss labor agreement"
ALCAN CABLE WEST
R/F Utility
Two Sr. Mechanics
One Janitor
One Shipping Utility
One Test Tank Operator
Those of you who are to work today are:
Glen Henderson
Paul Payne
Harry Preece
Peter Jenkins
Ernie Walker
George Suzuki
Mack Tsujimoto
Dick Horiuchi
Sumito Horiuchi
Jim Green
Those of you who have been named should go into the
plant and report to Basil Kehoe. As soon as you have
done so, I will continue with outlining our program for
returning the others to work. Those names again are:
Glen Henderson, Paul Payne, Harry Preece, Peter
Jenkins, Ernie Walker, George Suzuki, Mack Tsujimo-
to, Dick Horiuchi, Sumito Horiuchi, and Jim Green.
Those of you who have a legitimate right to return to
work when openings arise will be contacted. It is our
hope that we can return you to your positions as soon
as possible. In this regard, we have your telephone
numbers in the office. However, if during the strike
you have moved to another location or obtained a dif-
ferent telephone number, I would appreciate you call-
ing Carline Fulmer at the plant and giving her the
information.
Let me assure you that if you are legitimately entitled
to return to work we will make every effort to return
you to your job as soon as there is an opening.
During Roullier's reading of the statement, a chorus
arose among the strikers, "All back or none," or words to
that effect, and only one of those named by Roullier, one
of the Horiuchis, did return that day. Stuart told Sommer-
feld that same morning that the strikers had gone out to-
gether and were going to come back together. The strikers
nevertheless returned on a piecemeal basis, during the suc-
ceeding days and weeks, as follows:
Name Date Returned
G. Henderson April 24
1. Horiuchi April 24
Z. Iqbal April 24
P. Jenkins April 24
P. Payne April 24
G. Suzuki April 24
M. Tsujimoto April 24
E. Walker April 24
D. Farmer April 27
K. Gilbert April 30
P. Green April 30
R. Kantola April 30
F. Nunez April 30
D. Coder May 11
T. Ozcan May 11
J. Ennega May 18
R. Korte June 4
D. Robertson June 8
R. Plunkett June II
F. Horan June 18
V. Lopez June 26
C. Eastwood June 29
P. Gignac June 29
245
Among those denied recall because of alleged strike mis-
conduct were: 20
G. Baldwin D. Lasick
D. W. Braswell J. Lasick
J. C. Braswell Vic Lopez
R. Coon J. Martin
D. Franklin R. McCoy
R. Grenier B. Stebbins
G. Hauer R. Spiller
E. Henthorn T. Stratton
The specific circumstances leading to the refusal to re-
call these 16 were:
Baldwin: On March 20, while picketing at the entrance-
exit to the plant, Baldwin deliberately tore the outside mir-
ror off Brewer's car 21
D. W. Braswell: On March 28, Braswell and a number of
other strikers waylaid a four-car caravan of nonstriking
employees near the plant., Braswell struck Robert Skidgel's
truck with a ball bat, breaking the windshield and a side
window.22
J. C. Braswell: On February 6, while Braswell was pick-
eting, Skidgel mentioned to him that rock-throwing was
dangerous. Braswell, replying that Skidgel should not ac-
cuse him of that, swung at Skidgel through the window of
Skidgel's truck, grazing his shoulder with a fist. Braswell
then told Skidgel to get the hell out of there if he did not
want trouble.
On March 28, Braswell was among those who waylaid
the four-car caravan in the incident mentioned above.
There is no evidence that he personally inflicted any dam-
age, but he was among those who stood in front of the
caravan, body-blocking its progress in anticipation of the
attack. That this was a coordinated effort among the sever-
al strikers present was indicated by the manner in which
20This list includes only those claimed by the General Counsel to have
been denied recall unlawfully. At least one other , Ron Jordan, was denied
recall because of alleged strike misconduct.
2' Brewer conceded that his car may have nudged Baldwin as Baldwin
blocked its progress . While this incident was not filmed , films in evidence
depict several occasions when picketers stood in front of slowly moving
vehicles , inviting harmless contact . It must be concluded from Brewer's
testimony , and in the absence of testimony by Baldwin , that this was such
an occasion . The speculative argument in General Counsel 's brief that Bald-
win was forced onto the car by the impact , and grabbed the mirror as a
reflexive act of self-preservation, is rejected.
22 The General Counsel argues in his brief that the record does not sup-
port a finding that D. W. Braswell hit Skidgel's truck. To the contrary.
James Caughman , whose vehicle was behind Skidgel 's. testified that he saw
Braswell swing the bat ; and Skidgel testified that , while he did not observe
the blows being struck , he saw Braswell next to his car , bat in hand, immedi-
ately after . The inference thus can be drawn , particularly since Braswell did
not testify.
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the attack was triggered: Striker Charles Carnes dropped
his raised arm and shouted, "Now!" 23
Coon: On or about March 8, Coon veered his car rapidly
(40-50 mph) toward Security Guard Don Birdsong and
another guard, as if going to hit them. The record does not
disclose how close Coon's car came to them.
On April 2, Coon and some other strikers set upon a
caravan of nonstrikers forming at an Exxon station, after
which Coon rammed his car into the rear of nonstriker
Don Gibson's as it proceeded down a highway, throwing
the Gibson car into a skid. The record does not disclose the
extent of damage.24
Franklin: Franklin was among those involved in the ear-
lier described ambush of the four-car caravan on March
28. There is no evidence that he personally inflicted any
damage, but he, like J. C. Braswell, situated himself to
force the caravan to stop.
On March 31, Franklin kicked the sides of two cars as
they left the plant, and on April 10 did likewise to Presi-
dent Kriplani's car. There is no evidence of damage.25
Grenier.• On February 19, immediately after someone
threw a chunk of concrete through the rear window of Se-
curity Guard Carl Hayes' pickup, Grenier shouted at
Hayes, "Get out, pig; get out you [expletive deleted] pig;
get out." Someone then poured paint on Hayes' truck,
prompting Grenier to state, "Hey, pig, how you like your
paint job?"
On an unknown date later in February, Grenier punc-
tured a tire on Steven Rice's truck with a knife as the truck
was detained at the picket line.26
On April 23, as the assemblage of returning strikers was
dispersing, Grenier commented to Sommerfeld that Som-
merfeld had on his "fruit shoes," then inquired, "Say, tell
me, do you [expletive deleted] for a living?"
Hauer: Brewer testified that, in early March as he drove
slowly through the picket line, he heard a "scraping sound
down the [passenger] side of my car." Brewer further testi-
fied that, although there were several picketers in the vicin-
ity, Hauer was the only one "within arm's reach at the
time." Upon reaching the parking lot, Brewer examined his
car, noticing that "it had a scrape down to the metal
through the paint and the primer, . . . say four feet long."
Nonstriker Evelyn Simpson testified that, on March 27
while her car was detained at the picket line, a person in a
black raincoat walked along its passenger side "and I could
hear a scratching noise as he walked alongside of it." She
inspected the car moments later in the parking lot, detect-
ing a "nice, long scratch . .. down to the bare metal." She
estimated its length at 4 to 6 feet. Simpson, a new employ-
ee, did not know the person who had done the damage; so,
while still in the parking lot, she asked one Corky Corcor-
an, who had been behind her in the caravan. Corcoran,
according to Simpson, said it was Hauer. Corcoran did not
testify. Simpson further identified the person as being bare-
headed, with dark brown hair, and not wearing glasses.
Film of the March 27 riot, which began moments after
23 J, C. Braswell did not testify.
24 Coon did not testify.
25 Franklin did not testify.
26 Grenier did not testify.
Simpson's car was scratched, reveals Hauer as fitting
Simpson's description, except that he wore glasses.
Also on March 27, while climbing onto the hood of
Brewer's car to obstruct Brewer's picture-taking of that
day's not, Hauer pushed against the antenna with his
body, breaking it. This apparently was unintentional.
Hauer was precluded by illness from testifying. Counsel
stipulated that, had he testified, he would have denied each
instance of the conduct attributed to him.
The General Counsel argues in his brief that neither
Brewer's nor Simpson's testimony sufficiently identified
Hauer as the actor in the scratching incidents, Simpson's
being particularly suspect since the film proved Hauer to
have been wearing glasses and her identification of Hauer
by name was dependent upon the assertion of a third per-
son, who did not testify. If the General Counsel's argument
goes to competency, as opposed to weight, he is in error.
Although Brewer did not actually see Hauer inflict the
scratch, he competently could testify from Hauer's posi-
tioning during the scraping noise, juxtaposed with observa-
tion of a new scratch soon after, that Hauer was the actor.
See 2 Wigmore, Evidence, § 660, p. 772, fn. 6 (3d ed.
1940). Similarly, Simpson competently could testify that
the person in the black raincoat scratched her car; as she
could that that person, as she later learned, was Hauer. As
stated in 2 Wigmore, supra, sec. 667(a), p. 788, fn. 1:
[T]he only source by which we "know" most persons'
names is by somebody telling us that such is the
name. 27
Brewer and Simpson both impressed as capable observ-
ers and conscientious witnesses.28 Consequently, although
the weight of their testimony might fairly be questioned,
because of the ways their knowledge was obtained, and
despite Hauer's denials in absentia, it is concluded that
Hauer did deliberately scrape both cars. Brewer additional-
ly is credited that Hauer broke the antenna, albeit inadver-
tently.
Henthorn: On March 18, while picketing, Henthorn sat
on the hood of Brewer's car as it approached the plant,
remaining there while Brewer slowly drove several hundred
feet. Henthorn eventually jumped off and gave Brewer a
salute, and they both laughed. A dent was left in the hood,
requiring professional repair.
On March 27, during a riot on the picket line, Henthorn
ran up to nonstriker Ralph Okuma, who had just gotten
out of a stopped car, and the two exchanges blows. Who
struck first, and in response to what provocation , is left in
doubt by the record.29
D. Lasick: On March 27, during the aforementioned riot
n Or. as stated in State v. Deepe, 286 S.W.2d 776, 781 (Mo. 1956):
ITlhough the source of information as to one's name may be hearsay,
yet it is universally relied upon as a source of knowledge.
28 It would be contrary to the realities of everyday experience to reject the
total of Simpson's testimony because the one detail, Hauer's glasses , did not
register with her.
v The riot started when Vern Barrett , a nonstriker, got out of his car at
the picket line to check for possible picketer-inflicted damage . Before he
could get back into his car, Picketer Ron Jordan attacked him. The melee
expanded by a process akin to nuclear fission. Okuma had been a passenger
in Barrett's car.
ALCAN CABLE WEST 247
on the picket line, Lasick participated in the dragging of
nonstriker Vern Barrett perhaps 50 feet into a nearby field,
where Lasick kicked and slugged him. 30
J. Lasick: On March 1, Lasick threw an object through a
glass window in the administration building; on March 27,
during the above riot, slugged an officer of the California
Highway Patrol who was trying to restore order; and on
April 3, at the Placer County courthouse in connection
with a contempt matter over the Union's picket line con-
duct, threatened that he was going "to get" Brewer.31
Lopez: On March 16, while picketing, Lopez walked in
front of Brewer's car, causing the car to touch him lightly,
whereupon Lopez struck a window with his hand and
shouted an expletive. No damage was done. On March 20,
Lopez yelled at President Kriplani through a closed car
window that he was going to kill Kriplani's "Indian ass."
Lopez also participated in the previously described
March 28 ambush of the four-car caravan, breaking the
windshields of Dennis Bunz' and James Caughman's vehi-
cles with a ball bat.32
Martin: On March 16, after Picket Ron Jordan induced
nonstriker Mike Halsey to leave his car, resulting in a scuf-
fle between the two, Martin took a poke at Halsey. 33 On
March 27, during and after the riot earlier mentioned,
Martin spit on cars carrying nonstrikers and said to Brew-
er, "Next time it's going to be you, you fat sonofabitch."
And Martin was among those at the Exxon station on
April 2 and was in Coon's car when it later rammed the
rear of Dan Gibson's car.
McCoy: On February 6, while picketing, McCoy hit Dan
Gibson's car with a rock, chipping paint and causing a
dent. On March 1, he threw rocks at the administration
building, apparently breaking a window. On March 19,
while on the picket line, McCoy tore loose the outside mir-
ror on Kriplani's car. On March 20, McCoy walked slowly
in front of Brewer's car at the entrance-exit, both heading
in the same direction. Upon the car's lightly touching him,
McCoy casually sat back on the hood, riding several feet in
that fashion. The hood suffered a dent requiring repair.34
10 The incident is depicted by film in evidence. Although the General
Counsel disputes the identification of D. Lasick, he was not called as a
witness.
11 J. Lasick denied the rock-throwing and policeman-slugging. Testimony
regarding both incidents was augmented by films , in evidence , that revealed
Lasick doing those things . His denials , moreover , were not supported by a
convincing witness stand demeanor. Lasick also denied the courthouse
threat to Brewer . Brewer , an impressively credible witness , is credited over
that denial.
32 Lopez did not testify.
33 Neither Jordan , Halsey, nor Martin testified . Brewer testified of having
seen portions of the altercation , and portions are on film in evidence.
14 McCoy denied hitting Gibson's car with a rock, or tearing off
Kriplani's mirror. And, while admitting that he threw rocks from the picket
line, he testified that he could not recall throwing any toward the adminis-
tration building, only "out in the field and at the telephone poles." He also
testified that he never saw anyone else throw rocks at cars or the building.
This latter assertion is so implausible, in the circumstances , as seriously to
flaw McCoy's testimony generally. Nor did his witness stand demeanor
inspire particular trust. For those reasons, among others, Gibson is credited
concerning the rock thrown at Gibson's car; Security Guard Don Birdsong
is credited concerning the rocks thrown at the administration building; and
Brewer is credited regarding Kriplani's mirror. The General Counsel quar-
rels with Birdsong's testimony that McCoy's rock broke a window. That
need not be resolved, marksmanship being beside the point. Alkahn Silk
Stebbins: On March 1, Stebbins threw a rock through a
glass window of the administration building. On April 2,
during the incident at the Exxon station, Stebbins swung
an aluminum cable against a truck that was to be part of
the caravan, breaking an outside mirror and a turn signal,
then swung the cable at Charles Lucas as Lucas took ref-
uge in Gibson's car. Stebbins said to Lucas at the time,
"You sonofabitch, come out of there and I'll kill you."
Lucas was in charge of security for Respondent. Stebbins,
in addition, was an occupant of Coon's car when it ram-
med Gibson's moments later.35
Spiller: On February 2, while picketing, Spiller hit a
supplier's truck with a rock, and on March I threw rocks at
the administration building.36 On three occasions in
March, either himself driving or being driven by Ron Jor-
dan, Spiller engaged in high-speed freeway harassment of
Dan Gibson, forcing Gibson to the shoulder, or to brake or
swerve abruptly. Spiller interlaced all of this with threaten-
ing epithets-"You sonofabitch, I'll get you," etc.- and
the "finger." 37
Stratton: During the March 27 riot on the picket line,
Stratton momentarily bearhugged a policeman trying to in-
tervene, pulling him away from the melee.
2. Analysis of the alleged violations of Section 8(a)(3)
and (1)-the Reinstatement situation generally
The General Counsel contends that the strike was an
unfair labor practice strike; therefore, that Respondent
violated Section 8(a)(3) and (I) by failing promptly to re-
call all the strikers upon their making themselves available,
even at the cost of displacing their replacements. The Gen-
eral Counsel further contends, concerning those 16 denied
recall for strike misconduct, that Respondent violated Sec-
tion 8(a)(3) and (1), whatever the status of the strike.
The first contention necessarily fails, it having been de-
cided that Respondent's bargaining conduct did not violate
the Act. Respondent's treatment of those recalled as eco-
nomic strikers, offering them recall only as positions arose,
was not unlawful.38
Regarding the second contention, the Board is not quick
to disqualify from recall strikers involved in strike-related
incidents. Nor, on the other hand, does a strike bestow
upon strikers unqualified license to engage in violence. As
stated in Coronet Casuals, Inc., 207 NLRB 304 (1973):
Sections 7 and 13 of the Act grant employees the right
to strike, picket, and engage in other concerted activi-
ties for the purpose of collective bargaining or other
mutual aid or protection. It is true, of course, that not
Label Co., 193 NLRB 167, 175.
35 Stebbins did not testify.
3' James Cassil, the driver of the truck, is credited over Spiller's denial of
throwing at the truck; and Security Guard Don Birdsong is credited over
Spiller's denial of throwing at the administration building. The denials not-
withstanding , Spiller evinced an attitude on the witness stand enhancing the
believability of Cassil's and Birdsong's testimony.
37 Spiller did not deny "escorting" Gibson down the highway, but de-
scribed the occurrences in terms more innocuous than Gibson's. Spiller tes-
tified of a virulent resentment of Gibson-"the worst turncoat I have ever
known against his fellow workers"-lending credence to Gibson 's version.
38 As previously mentioned, the General Counsel does not dispute the
permanency of the replacements.
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all forms of conduct literally within the terms of Sec-
tion 7 and 13 remain entitled to statutory protection.
In deference to the rights of employers and the public,
the Board and the courts have acknowledged that seri-
ous acts of misconduct which occur in the course of a
strike may disqualify a striker from the protection of
the Act. Thus, strikers have been deemed to lose the
Act's protection when they seized the employer's
property, or engaged in acts of "brutal violence"
against a nonstriker. At the same time it is true that
not every impropriety committed in the course of a
strike deprives an employee of the protective mantle
of the Act. Thus, absent violence, the Board and the
courts have held that a picket is not disqualified from
reinstatement despite participation in various inci-
dents of misconduct which include obscene language,
making abusive threats against nonstrikers, engaging
in minor scuffles and disorderly arguments, momen-
tarily blocking cars by mass picketing, and engaging
in other minor incidents of misconduct. Consistent
with these cases, the Board and the courts have long
held that minor acts of misconduct must have been in
the contemplation of Congress when it provided for
the right to strike and that this right would be unduly
jeopardized if any misconduct, without regard for the
seriousness of the act, would deprive the employee of
the protective mantle of the Act.
Some of the 16 plainly engaged in disqualifying conduct.
D. W. Braswell and Lopez, be breaking car windows with
ball bats during the March 28 ambush of the four-car cara-
van, are in this group. J. C. Braswell and Franklin, by their
involvement in the same incident, also must be included.
Although neither J. C. Braswell nor Franklin delivered the
destructive blows, both performed the accessory role of
forcing the caravan to a stop, enabling the attack to occur;
and the surrounding circumstances dispel any doubt that
all were acting in premeditated concern.39
Others to forfeit their recall rights by damaging vehicles
are Baldwin, by tearing a mirror off Brewer's car on March
20; Grenier, by puncturing a tire on Steven Rice's truck
with a knife in late February; Hauer, by scraping the sides
of cars with a sharp object on two occasions in March;
McCoy, by hitting Gibson's car with a rock on February 6,
causing a dent and chipped paint, and by tearing loose the
mirror on Kriplani's car on March 19; and Stebbins, by
damaging a mirror and a turn signal on a truck with his
aluminum cable during the April'2 incident at the Exxon
station, followed by his attempt to strike Charles Lucas
with the cable. While none of this conduct was as aggravat-
ed as that of the two Braswells, Franklin, and Lopez, it
nevertheless was deliberate, unprovoked, tending to the in-
citement of retaliatory violence, and without the mitigating
factor of misconduct by Respondent. Even the more for-
giving standard applied to unfair labor practice strikers
probably would not excuse such acts as these. Beaver Bros.
Baking Co., 198 NLRB 327 (1972). McCoy and Stebbins
engaged in additional disqualifying conduct March 1,
when each threw rocks at the administration building. Al-
kahn Silk Label Co., 193 NLRB 167, 175.
Four of the remaining seven also forfeited their right to
recall. Coon, by rear-ending Gibson's car April 2 after the
incident at the Exxon station, apparently with considerable
impact since the Gibson car was thrown into a skid, dis-
played a disregard for life and limb that could only have
fomented greater violence. He thereby deprived himself of
the Act's remedial benefits. The Blair Process Company,
199 NLRB 194 fn. 3 (1972); Titan Metal Manufacturing
Co., 135 NLRB 196, 206-207 (1962). D. Lasick, by helping
drag Vern Barrett into a field during the March 27 riot,
and then kicking and slugging him, evinced a brutality far
overstepping the bounds of acceptable striker etiquette;
and J. Lasick, during the same riot, by slugging a law offi-
cer trying to restore order to an incendiary situation, like-
wise exceeded proper limits, as he did by breaking a win-
dow in the administration building with a rock on March 1.
Spiller, apart from his rock-throwing, by harassing Gibson
three different times on the freeway with the deadly weap-
onry of the automobile, forcing Gibson variously to leave
the road, swerve, and brake suddenly, disqualified himself
much as Coon did by rear-ending Gibson.
That leaves Henthorn, Martin, and Stratton, none of
whom can be said to have disqualified himself. Although
Henthorn damaged the hood of Brewer's car March 18,
while sitting on it, the harm was slight and unintended and
the incident good-humored. Henthorn's other impropriety,
hitting Ralph Okuma during the March 27 riot, was of a
graver nature, but not disqualifyingly so in view of the
ambiguous nature of that incident and the surrounding
bedlam generally.
Martin's malefactions consisted of hitting Halsey March
16 during a scuffle between Ron Jordan and Halsey, spit-
ting on cars and shouting expletives during and after the
March 27 riot, and being a fellow traveler of Coon and
Stebbins in the April 2 incident at the Exxon station. The
record does not warrant tarring Martin with the excesses of
Coon and Stebbins on April 2, and his involvement in the
Jordan-Halsey altercation was momentary and minor. The
spitting and expletives March 27, while not to be con-
doned, long since have become expected and accepted in
strike situations.
Stratton's bearhugging of a policeman during the March
27 riot, however brief, was a technical obstruction of the
law and theoretically contributed to a prolongation of that
dangerous melee. Even so, it cannot be concluded that this
one nonviolent and impulsive act, lasting at most two or
three seconds, rendered Stratton unfit for further employ-
ment.
In summary, regarding the 16 strikers whose recall rights
were terminated for misconduct, Respondent violated Sec-
tion 8(a)(3) and (1) as to Henthorn, Martin, and Stratton,
but not the remaining 13.
39 With regard to those found herein to have disqualified themselves for
recall , no effort is made to evaluate all of the instances of their misconduct
in light of the prevailing legal standard , only those instances most palpably
meeting the test.
ALCAN CABLE WEST
C. The Alleged Violation of Section 8(a)(3) and (1)-The
Harry Preece Situation
1. The evidence
Preece, a member of the employee bargaining commit-
tee, had been a day shift utility man in the covered wire
department before the strike. He apparently never had
worked nights in his several years with Respondent. His
name was among those read by Roullier April 23 for whom
there were immediate openings. Although present, he de-
clined to report, presumably in adherence to the Union's
all-or-none sentiment and without knowing what shift Re-
spondent had in mind for him. In fact, the opening intend-
ed for Preece, as is indicated by the May 10 letter to him
from President Kriplani, quoted below, was on the night
shift.
On April 24, the day after declining Roullier's offer,
Preece informed Respondent's Kehoe of his availability.
Kehoe told him there was nothing on the day shift, but that
there was an opening nights in his classification.40 Preece,
explaining that he did not want to leave his wife alone
nights, refused to accept.
Preece then received the above-mentioned May 10 letter
from Kriplani. The letter stated:
On 23 April 1973, you were requested to return to
work in the same position which you occupied prior to
the strike. You were asked to report at 7:00 p.m. on 23
April 1973 and assume the duties of that position. Be-
cause you failed to report as requested, you were given
additional opportunities to do so. Nonetheless, you
persisted in refusing the Company's request.
You are hereby advised that the position which was
previously offered to you has been filled. However,
should you have any desire to return to the position
which you occupied prior to the strike, you will be
advised when an opening occurs.
I would appreciate your keeping us informed of your
whereabouts so that we may contact you as indicated
above.
This was followed by a letter from Kriplani to Preece
dated May 30, which stated:
As you were advised by telephone this date, you are
requested to return to work at Alcan Cable West in
Rocklin, California to assume the position of Utility
Man in the Covered Wire Department on the 7:00
p.m. to 7:00 a.m. shift on June 8, 1973. You should
report to Mr. Basil Kehoe at least one day prior to
receive your instructions and identification card.
We would appreciate your speedy return to work. If
you do not return to work within seven days after date
of sending of this letter, we shall assume that you are
no longer interested in returning to work with this
Company.
40 That there were no day shift openings in Preece's classification at any
relevant time is not disputed.
249
Preece replied to Kriplani's May 30 letter by letter dated
June 6, stating in part:
I cannot work this shift [night] as it would create a
hardship on my family. If you will check back on my
past four years with the company you will see that I
have always worked a less paying job so that I could
be home during the night. I am more than willing to
return to the job and shift that I worked prior to the
strike.
The letter concluded , referring to Section 8(a)(3) of the
Act:
Based on this section I feel that I am entitled to return
to work on the job and shift that I held prior to the
strike.
This prompted a letter from Roullier, dated June 13:
Further to your June 6th letter, I regret that, at this
moment, we have no vacancy for a Utility Man in the
Covered Wire Department on day shift. As and when
a suitable vacancy opens up, I shall let you know.
By letter dated August 2, Preece again was notified of "a
vacancy on night shift for Covered Wire Utility Man."
Preece refused the offer by letter dated August 10, adding:
"My reasons for not accepting the opening are exactly the
same as I wrote in my letter to Mr. Kriplani dated June 6,
1973."
The next communication was this letter from Kriplani to
Preece dated September 10:
We are sending you the enclosure relating to payment
of your benefits. As it is now apparent from your con-
tinued refusal to accept our offers of employment, that
you are no longer interested in working for the compa-
ny.
Please make arrangements to return any uniform,
keys, and tools that you may have and call at the plant
to receive the contents of your locker.
The record does not disclose any later contacts between
Respondent and Preece.
2. Analysis concerning Preece
The General Counsel's theories concerning Preece are
less than lucid. It apparently is contended, first, that Re-
spondent violated Section 8(a)(3) and (1) by failing to offer
Preece a day shift position, the theory being that day and
night shifts are not substantially equivalent. This would
seem to presuppose that Preece was an unfair labor prac-
tice striker, unqualifiedly entitled to reinstatement, for
there is no disagreement as to the nonexistence of day shift
openings in his classification on and after April 23. Preece
having been an economic striker, this contention perforce
fails.
The General Counsel's second contention, apparently, is
that Preece was warranted in refusing night shift offers on
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nonequivalency grounds; therefore, that Kriplani's Sep-
tember 10 letter in essence removing him from further con-
sideration for recall, day or night, violated Section 8(a)(3)
and (1). This contention raises considerably more problems
of analysis than the first. Had Preece rejected Roullier's
April 23 offer on the ground of night-shift nonequivalency,
as he did the later ones, he would have been on solid
ground and Respondent could not then lawfully have ex-
cluded him from further consideration. Cf. Stanley Building
Specialties Co., a subsidiary of The Stanley Works, 166
NLRB 984, 986 (1967). It must be inferred from the cir-
cumstances, however, that he then had no idea of being
marked for night work, and that his only reason for not
accepting was to support the Union's all-or-none posture.
That is, Preece chose to continue striking in protest of
Respondent's failure immediately to recall all of the strik-
ers.
In this, too, Preece would have been on solid ground had
all the strikers been entitled to immediate reinstatement.
As the Board stated in Southwestern Pipe, Inc., 179 NLRB
364, 365 (1969):
A striker may refuse an offer of reinstatement, without
losing his status as a striker, because the employer has
not made a similar offer to other strikers who are also
entitled to immediate reinstatement. The striker is
thereby engaging in protected concerted activity.
But many and perhaps all of those denied recall were not
entitled to immediate reinstatement, being either economic
strikers for whom there were no openings, or disqualified,
by strike misconduct.41 It follows that Preece's first rejec-
tion of recall, on the ground of all-or-none, was not validly
premised, relieving Respondent of further duty to him, re-
gardless of the underlying inadequacy of Roullier's offer.
Cf. Research Designing Service, Inc., 141 NLRB 211, 216
(1963).
Respondent, however, did not leave it at that. It instead
continued to offer Preece night jobs, and to hold forth the
prospect of day shift recall should an opening arise, until
Kriplani's cutoff letter of September 10. Preece, mean-
while, had abandoned the strike on April 24, shifting his
reason for rejection of the night offers to the valid one of
nonequivalency. Thus, Respondent tacitly condoned
Preece's first rejection and his 1-day continuation of the
strike; and, by so doing, revived its duty to recall him to a
substantially equivalent job should one open. Cf. Confec-
tionery Drivers Union v. N.L.R.B., 312 F.2d 108, 113 (C.A.
2, 1963); Union Twist Drill Co., 124 NLRB 1143 (1959).
Respondent therefore violated Section 8(a)(3) and (1) by
terminating Preece's recall rights on September 10. Brooks
Research & Manufacturing, Inc., 202 NLRB 634 (1973); The
Laidlaw Corporation, 171 NLRB 1366 (1968), enfd. 414
F.2d 99 (C.A. 7, 1969).
41 The "many and perhaps all" usage allows for the possibility that some
of the three earlier found wrongfully to have been deprived of recall rights
would have been recalled Arpil 23 but for Respondent's misconduct against
them.
CONCLUSIONS OF LAW
1. By terminating the job recall rights of E. Henthorn, J.
Martin, and T. Stratton as of April 23, 1973, and those of
Harry Preece on September 10, 1973, Respondent in each
instance violated Section 8(a)(3) and (1) of the Act.
2. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
3. Respondent did not violate the Act in any other way.
REMEDY
To effectuate the policies of the Act, it is recommended
that Respondent be ordered to cease and desist from the
unfair labor practices found.
Affirmatively, it is recommended concerning Henthorn,
Martin, and Stratton that any who would have been re-
called on or after April 23, 1973, but for Respondent's un-
lawful conduct, be ordered immediately reinstated to the
position in which he would have been placed (displacing
the present occupant of that position if necessary), without
prejudice to his seniority or other rights and privileges, and
make whole for any loss of earnings and other benefits
suffered by reason of the discriminatory failure to reinstate
him.42 The same recommendation is made concerning
Preece , the operative date being September 10, 1973, rather
than April 23. Losses of earnings and other benefits shall
be computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), and Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
Should compliance with the preceding paragraph fail to
achieve immediate reinstatement for all, it is further rec-
ommended that Respondent be ordered to preserve the re-
call rights of the affected employees; and, as vacancies oc-
cur for which any is qualified, to offer him that position
unless he has obtained other regular and substantially
equivalent employment.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
42 In its brief , Respondent argues in effect that , even if there were an
improper termination of recall rights as to some strikers, there was no un-
lawful failure to recall, and thus no backpay obligation, in view of the
conditionality of the Union's offer to return . Accepting the premise that the
all-or-none character of the Union's offer made it conditional , licensing
Respondent to reject it, the all-or-none unity quickly gave way to individual
applications, which were accepted. By April 24. nearly all of those offered
recall April 23 had been restored to their jobs, and Respondent continued
thereafter to recall all but those it deemed disqualified as openings arose.
There can be little doubt , assuming openings . that Henthorn, Martin, and
Stratton likewise would have been recalled but for Respondent 's unlawful
conduct toward them. Nor can there be much doubt , given that conduct.
that it would have been futile for them individually to have made uncondi-
tional applications to return . A remedy without retroactive sanctions in
these circumstances would reward Respondent for unlawfully discouraging
these employees from curing the defects in.the first offer . The Board, treat-
ing with an analogous situation in Winn Dixie Stores Inc., 206 NLRB 777.
778 (1973). stated:
To require the fired employee [ which Henthorn , Martin, and Stratton
in reality are] to apply to the employer whc has evinced no retreat from
his unlawful conduct appears hardly reasonable, and also contrary to
the well-established legal principle that a condition once established-
the employer 's refusal to employ the employee-is presumed to contin-
ue in the absence of evidence showing a change has occurred.
ALCAN CABLE WEST 251
ORDER43
Respondent, Alcan Cable West, a Division of Alcan
Aluminum Corporation, Rocklin, California, its officers,
agents, successors , and assigns , shall:
1. Cease and desist from terminating the recall rights of
economic strikers who did not engage in disqualifying
strike misconduct.
2. Take the following affirmative action:
(a) Rescind its termination of the recall rights of E.
Henthorn, J. Martin, T. Stratton, and Harry Preece.
(b) Offer immediate and full reinstatement with back-
pay, as set forth above in "Remedy," to any employee who
would have been recalled but for Respondent's unlawful
termination of recall rights.
(c) Should compliance with the preceding paragraph fail
to achieve immediate reinstatement for the four affected
employees, preserve their recall rights; and, as vacancies
occur for which any is qualified, offer him that position
unless he has obtained other regular and substantially
equivalent employment.
43 All outstanding motions inconsistent herewith are denied . In the event
no exceptions are filed as provided by Sec. 102 . 46 of the Rules and Regula-
tions of the National Labor Relations Board, the findings. conclusions, and
recommended Order herein shall, as provided in Sec . 102.48 of the Rules
and Regulations, be adopted by the Board and become its findings, conclu-
sions , and Order, and all objections thereto shall be deemed waived for all
purposes.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amounts of backpay due under the
terms of this Order.
(e) Post at its Sunset Whitney Ranch, Rocklin, Califor-
nia, plant and mail to Henthorn, Martin, Stratton, and
Preece copies of the attached notice marked "Appen-
dix." 44 Copies of said notice, on forms provided by the
Regional Director for Region 20, after being duly signed
by Respondent's authorized representative, shall be posted
by it and mailed to said employees immediately upon re-
ceipt thereof, and the posted copies maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(f) Notify the Regional Director for Region 20, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
Except to the extent that violations herein have been
found, the complaint is dismissed.
44 In the event this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."