American International Aluminum Corp.

National Labor Relations Board - Board Decisions

Nov 30, 1964

149 N.L.R.B. 1205 (N.L.R.B. 1964)

AMERICAN INTERNATIONAL ALUMINUM CORP. 1205
3. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 ( 6) and (7) of the Act.
4. The Company has not engaged in unfair labor practices within the meaning of
Section 8 (a) (2) of the Act.
5. The Company has not engaged in unfair labor practices within the meaning of
Section 8 ( a) (3) of the Act.
[Recommended Order omitted from publication.]
American International Aluminum Corp . and United Steelwork-
ers of America , Local Union 5900 , AFL-CIO. Case No. 12-CA-
d731. November 30, 1964
DECISION AND ORDER
On June 25, 1964, Trial Examiner Stanley Gilbert issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the General Counsel, the Charging Party, and
the Respondent filed exceptions to the Trial Examiner's Decision,
and the General Counsel and the Respondent filed supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning; and
Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, the briefs, and the entire
record in this case,' and hereby adopts the Trial Examiner's findings,
conclusions,2 and recommendations.3
I The Respondent ' s request for oral argument before the Board is hereby denied as, in
our opinion , the record , the exceptions , and the briefs adequately present the issues and
positions of the parties
x For the reasons set forth in the Trial Examiner ' s Decision , rules Nos 7 and 24 are vio-
lative of Section 8 ( a) (1) of the Act . Under no circumstances could the Union ' s consent
to such rules , even if it went to the content thereof , validate them As found by the
Trial Examiner , rule No 30 also violates Section 8 ( a) (1) of the Act in prohibiting activi-
ties without permission of the Respondent in other than working time and working areas,
since the Union did not agree to the terms of the rule but only to the Respondent 's right
to post it . Even if the Union consented to the content of the rule , it would be unlawful
to the extent it prohibits activities on behalf of labor organizations other than the Union.
General Motors Corporation ( Buick-Oldsmobile-Pontiac Assembly Division ), 147 NLRB
509 A majority of the Board has respectfully disagreed with the opinion of the court in
denying entorcenient of Gale Products , Division of Outboard Marine Corp , 142 NLRB
1246, enforcement denied 337 F 2d 390 (CA . 7), and adheres to the Board ' s holding
therein.
Member Leedom, who dissented in the above-cited cases , agrees that on the facts herein
the Respondent violated Section 8(a) (1) of the Act by the posting of these various rules,
149 NLRB No. 115.
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts, as its Order, the Order recom-
mended by the Trial Examiner and orders that the Respondent, its
officers, agents, successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order.
including rule No 30 , in his opinion the acknowledgment there as to the Respondent's
right to post these rules is not tantamount to an agreement, such as existed in the cited
cases, to be bound by the substance of the rules. He deems it unnecessary, however, to
consider herein whether and to what extent rules, other than no-distribution or no-
solicitation rule.,, may be validated by agreement as to substance
3 Like the Trial Examiner, we find no merit in the General Counsel's contention that
the Respondent should be iequired to observe for a period of 4 months the terms of the
collective-bargaining agreement which the Respondent unlawfully terminated 4 months
before its terminal date The reinstatement and backpay tights of the employees found
to have been discriminated against shall, however, be based upon the terms and conditions
of employment which would have been in effect absent the Respondent's unlawful termina-
tion of that agreement Cf Cascade Employers Association, Inc, 126 NLRI; 1014
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on August 29, 1963, by United Steelworkers of America. Local
Union 5900 , AFL-CIO, hereinafter referred to as the Local,' the original complaint
herein was issued on December 6, 1963. Thereafter, the complaint was amended both
prior to the hearing and duiing the course of the hearing . The amended complaint
which raised the issues herein litigated was filed on January 30 , 1964, during the course
of the hearing Said complaint incorporated the amendments ( to the prior amended
complaint ) which were permitted theretofoie by the Trial Examiner duiing the
course of the hearing 2
The complaint, as finally amended , alleges , in essence , that American International
Aluminum Corp ( hereinafter refereed to as Respondent or the Company ) violated
Section 8 ( a)(1), (3), and (5) of the National Labor Relations Act by the following
conduct - 3 (1) Maintaining in effect plant rules which were violative of rights guar-
anteed under Section 7 of the Act; ( 2) canceling its collective -bargaining agreement
with the Union and thereafter failing and refusing to bargain with the Union; (3)
treating the representatives of the Union in a manner calculated to discourage adher-
ence to the Union; (4) discharging employees listed in Appendix A 4 of the amended
1 The charge was signed by William .McCall, staff repiesentatiie of United Steelworkers
of America , .IFL-CIO, hereinafter referred to as the Union , although it was filed in the
name of the Local It should be noted at this point that the pasties to the coilectiie-
baigaming agreement , hereinafter referred to, were the Respondent and the Union The
Local was charteied for the purpose of administering the contract.
' Paragraph 5(c) and certain portions of paragraphs 9(c) and 9 ( d) of the complaint, as
finally amended , were dismissed by the Trial Examiner on motion of Respondent Para-
graph 5(c) alleged unlawful interrogation of employees by Herbert B Mintz, counsel for
Respondent Based upon an offer of proof , the Tilal Examiner concluded that there was
no evidence of unlawful inteirogation by Mintz In paragraph 9(c) it was alleged that
Respondent unilaterally maintained in effect certain disciplinary rules. The allegation
was dismissed in view of the fact that the evidence disclosed that the Union was con-
sulted with respect thereto poor to posting and consented to the posting of the rules
The allegation in paragraph 9(c) that Respondent unilaterally scheduled and canceled
production was also dismissed There was no evidence introduced with respect to what
production was scheduled or canceled The allegation in paragraph 9(d) that Respond-
ent "shouted at" representatives of the Union was dismissed in view of the fact that
these was no evidence introduced of such conduct
The conduct set forth in the allegations which were dismissed, as indicated in foot-
note 2, supra , is not included
4 13y order dated April 24 , 1964 , the name of Augusto Hernandez was added thereto.
AMERICAN INTERNATIONAL ALUMINUM CORP. 1207
complaint and refusing to reinstate them with the exception of those listed in Appendix
B; (5) by its termination of the contract, terminating the rights of recall of the
employees listed in Appendix C who were on layoff status; and (6) locking out
employees on the second and third shifts of August 28, 1963, and on the first shift
of August 29, 1963
Respondent in its answer, as amended.5 denied that it engaged in any conduct vio-
lative of the Act It admitted, however, that it posted the aforesaid rules, but
asserted that the posting was with the consent of the Union Respondent also
admitted that it terminated the aforesaid agreement, that it ceased to recognize the
Union "on and after August 28 and/or August 30, 1963," that it did close its plant
to its employees starting on the second shitt of August 28, 1963, that it did discharge
the employees listed in Appendix A, and that it did recall employees listed in Appen-
dix B, but that its conduct was lawful by reason of conduct of the Union and the
employees, primarily because of an alleged "slowdown " Respondent also challenged
the appropriateness of the unit described in the complaint
Pursuant to due notice, a hearing was held in this matter in Miami, Florida, for 13
days, commencing on January 28 and concluding on February 14, 1964, before Trial
Examiner Stanley Gilbert. At the close of the hearing oral argument was waived.
Within the time designated therefor, briefs were submitted by all of the paities.
Upon the entire record herein, and from my observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Florida corporation, is engaged at its plant in Miami, Florida, in the
manufacture of aluminum extrusions It annually imports, from outside the State of
Florida, raw materials of a value in excess of $50,000 As is conceded by the
Respondent, it is, and has been at all times material herein, an employer engaged in
commerce within the meaning of Section 2 (6) and (7) of the Act
II. THE LABOR ORGANIZATIONS INVOLVED
Both the Local, which is the Chal gin-, Party, and the Union, which is the party to
the collective-bargaining agreement involved herein, are labor organizations within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background and summary of events
Unless otherwise indicated, the facts set forth in this subsection are not in dispute
They provide a framework to which the issues and the testimony can be related.
In 1959 the Union was certified as the collective-bargaining agent for a unit of the
employees of Respondent, and a 1-year collective-bargaining agreement was entered
into between Respondent and the Union in December 1959. A subsequent collective-
bargaining agreement, the one involved in this pioceeding, was entered into between
the two parties dated December 19, 1960, which by its terms was to remain in full
foice and effect for a 3-year period. The Local was chartered to administer and did
administer both contracts. It appears that on occasions representatives of the Union
aided the Local in meetings with Respondent and on occasions met with Respondent
without representatives of the Local being present.
In November 1962, new management (the management involved in this proceed-
ing) assumed control of Respondents From almost the beginning there were differ-
ences between the representatives of the Local and the Union and representatives of
management. There is testimony that, at one of the very first meetings, management
made accusations of a slowdown and that the accusations were denied. There is also
testimony of witnesses for the Respondent that representatives of the Local and Union
threatened retaliatory slowdowns, which testimony was denied. There is no need to
resolve this credibility issue in view of the findings hereinbelow. Up to the date of
5 Respondent filed an amended answer herein on January 30, 1964, in response to the
amended complaint filed on the same date, as noted above
-Apparently iesultmg from a change in oANnership of the corporate stock
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the hearing there were approximately 35 grievances filed against the Respondent, of
which 6 were pending when Respondent terminated the collective-bargaining agree-
ment on August 28, 1963.
On or about February 11, 1963, after consultation with the Union, work rules were
posted at the plant The Union consented to the posting of the rules. It is alleged
that three of the rules were violative of Section 8(a) (1) of the Act in that they inter-
fered with rights guaranteed under Section 7 of the Act. These rules will be con-
sidered hereinbelow.
In the middle of March 1963, Jack Carmel, Respondent's president, spoke to two
assembled groups of employees (in the unit represented by the Union) It is alleged
that by his conduct on said occasions he violated Section 8 (a) (1) of the Act. This
issue is considered hereinbelow.
On August 19, 1963, Respondent requested a meeting with William McCall, staff
representative of the Union, at which meeting Respondent complained of a "slow-
down" in the shipping room. Also at the meeting were members of the grievance
committee of the Local. During the meeting, representatives of Respondent also
complained about keys missing from forklift trucks and the switch being left off on
the cooling tower. The grievance committeeman explained that the reason for low
production in the shipping department was that it was understaffed. It appears that
personnel in the shipping department were frequently drafted to help on the presses.
Carmel issued orders that no more men were to be taken from their work in the
shipping department and that several men were to be recalled from layoff to staff the
shipping department A few days later, Carmel again complained to McCall about
the shipping department, accusing the employees of engaging in a slowdown. McCall
asked for the production records for that day and it is McCall's uncontradicted testi-
mony that the records revealed that "all the crews had packed the amount they agreed
to except one and,this one was just shy a few pounds," and that he told Carmel,
"Apparently we don't have any problem here because it looks like the fellows are
getting the work out "
Starting on August 27, the Respondent had difficulty with production on its two
presses. At the end of the first shift on August 28 (3 p m.) Respondent closed its
plant. It endeavored to prevent the second shift from "punching in" but the second
shift did punch in and went to their work stations Although they were ordered out
of the plant by announcements over the loudspeaker, the employees did not leave.
Police were called and upon instruction of one of the representatives of the Local,
the employees left the plant That afternoon, Respondent sent a telegram to the
Union advising that it was terminating the collective-bargaining agreement because it
had "been breached by ... repeated slowdowns and other unprotected activities of
the employees and Union." On August 30, telegrams were sent to all of the 79 pro-
duction and maintenance employees notifying them that they were discharged because
they had engaged in a slowdown. At the same time notification to report back to work
was sent to 18 of the 79 employees.
In order to understand the production problems with which Respondent had diffi-
culty on August 27 and 28, 1963, a description of the operation of the two presses
involved is set forth. Aluminum billets, which are solid bars of metal, are first heated
in a billet heater. When the billet is in a molten state, pressure is applied to it to force
the metal through a die which may contain one or more holes The holes shape the
metal being forced through them into strips of aluminum The aluminum which is
extruded through the die is then handled by a puller who pulls or guides the metal
along a runout table in order to prevent the strips from twisting or tangling. After
the strips have cooled somewhat on the runout table, they are moved to an adjoining
table where they are handled by stretchers, a head stretcher and a tail stretcher. At
this point the strips are stretched and further cooled. After this process the strips
are moved to the adjoining saw table where they are sawed to the desired length and
then stacked on carts by a sawman and a helper. The complement of the crew operat-
ing each press consists of a foreman and seven or eight men who are classified as
follows: a press operator, a puller and on occasions a puller's helper, two stretcher
men, and the sawman and his helper. There are frequent references in the record to
the presses being forced to stop because of full tables. Obviously, if too much metal
accumulates on the runout tables, i.e., the first table, there is insufficient room for
the press operator to extrude more metal, and the press must be shut down If the
strips are not processed fast enough at any one of the tables, too much metal will
accumulate on the runout table to permit further extrusions.
AMERICAN INTERNATIONAL ALUMINUM CORP. 1209
B The unit involved
It is alleged in paragraph 6 of the complaint (as finally amended) as follows.
All production and maintenance employees, including warehouse employees,
truckdrivers, janitors, leadmen, utility men, receiving and shipping clerks, and
the dispatcher at the Miami, Florida, plant, but excluding office clerical
employees, guards and watchmen, and professional and supervisory employees
as defined in the Act, constitute from March 1, 1963, to date a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9(b) of
the Act.
In its answer to said paragraph, Respondent denies the allegation and alleges that-
Dui ing 1963 and up to the date of filing of the charge herein on August 29, 1963,
there were changes in the ownership of and number of plant or plants of Respond-
ent in Dade County, Florida, and in the operations thereof, and that, after
August 29, 1963, there have been still further such changes
While the collective-bargaining agreement involved herein does refer to employees
in "plants in Miami and Hialeah, Florida," the Charging Party and the General
Counsel contend that during the period material herein the Respondent was operating
only the plant in Miami, Florida, and that the above-described classifications of
employees in said plant comprise the appropriate bargaining unit Apparently some-
time before the period material to the issues in this case the plant in Hialeah ceased
being operated by Respondent so that only the plant in Miami remained to be admin-
istered under the collective-bargaining agreement. Although Respondent denies that
the unit described in the complaint is an appropriate unit, it does admit that it was the
unit that "was properly administered under the contract " There is no showing in the
record that at any time during the period material to the proceeding herein Respondent
challenged the appropriateness of the unit. Although counsel for Respondent indi-
cated that there have been changes in the operations of Respondent, there is no show-
ing in the record as to what such changes were, and how, if at all, they affected the
appropriateness of the aforesaid unit Therefore, it is concluded that the above-
described unit is an appropriate unit for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
C. Resolution of the issues
1. The work rules
As has been indicated, on or about February 11, 1963, work rules were posted at
the plant and remained posted after consultation with the Union and with the under-
standing that the Union "acknowledges the Company's right to post" said rules.? The
rules concluded with the following admonition:
Any violation of any rule may result in discharge if the Company believes such
penalty necessary or appropriate Know these rules. They will be enforced.8
The General Counsel contends that three of the rules were violative of Section
8 (a) (1) of the Act because they interfered with rights guaranteed under Section 7 of
the Act It is concluded that, although the Union consented to the posting of the
rules and there is no showing of any attempt to enforce them, nevertheless their broad
language would reasonably tend to inhibit employees in the exercise of their rights
under Section 7 of the Act a These rules are as follows
7 Falsifying or exaggerating to any person, government agency or other group
or organization any facts or claims against the interests of the company, or falsi-
fying documents, time cards, or company records will be grounds for immediate
dismissal.
24 Employees, as a condition of continued employment, are required to
cooperate with the company's requests and methods or with the company's
4 By Respondent's letter dated February 4, 1963, to the Union, the fact of such an
acknowledgment was asserted and there is no showing that this assertion was ever
challenged
8 There is no showing of an attempt to enforce any of the rules alleged to be invalid
9 The Union's consent to the posting cannot operate as a waiver of the rights affected
by said ruler and the Respondent made no contention that it should
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervisors , lawyers, investigators , insurance company agents or other company
representatives who may be seeking facts or information bearing on any subject
within the company 's business concern. Toward this end, lie detector tests may
occasionally be utilized. Any non-cooperation or falsification of facts or refusal
by any employee will be grounds for appropriate disciplinary action including
discharge.
30 Solicitation by creditors or other non -employees , or wage collections, or
subscription or other collections of fund raising , or the circulating of petitions
at any time on company property without the written consent of the plant
manager is strictly prohibited.
Rule No 7 violates Section 8(a)(1) of the Act because it contains a threat that
employees will be discharged should they, in filing a charge with the Board or in
giving a statement to the Board, state something which Respondent may believe to be
false or exaggerated or which may later be proved to be false or exaggerated This
threat would restrain and coerce employees in the exercise of rights guaranteed under
Section 7 of the Act. The Board stated in Louis Kramer, et al, trading as The
Kramer Company, 29 NLRB 921, 935, a principle which clearly indicates that the
broad language of rule No. 7 is violative of the Act:
Section 8(4) of the Act expressly prohibits discharge or any other form of
discrimination against an employee "because he has filed charges or given testi-
mony under the Act " We have found that the respondents determined not to
reemploy Silvick because she had filed charges which the respondents deemed
"false " The prohibition of the statute against discrimination is effective irre-
spective of whether the employer believes the charges to be false or whether the
ultimate proof sustains their validity To hold otherwise would be to subject
an employee, who invoked the protection of the Act, to the peril of discrimination
without redress in every case where the employer considered the charges false
or where, for whatever reason, the entire proof after a trial upon the mei its
failed to sustain the validity of the charges filed To that extent such holding
would nullify the expiess statutory protection afforded employees against the
unfair labor practice condemned by Section 8 (4) of the Act.
The threat contained in this rule would interfere with the Board 's processes and thus
interfere with the employees ' exercise of their statutory rights, for it would inhibit
employees from cooperating with the Board in its investigatory processes . It is reason-
able to assume that employees would be reluctant to either file charges or give state-
ments to the Board's investigators , for fear that their charges or statements might be
deemed by Respondent to be false or exaggerated , or might later prove to be false or
exaggerated.
Rule No. 24 threatens employees with discharge if they fail to cooperate with
Respondent in giving facts or information , which facts or information might very
well be with respect to their protected activities . The broad language of this rule
would encompass a threat of discharge for failure to submit to interrogation that
would be unlawful under Section 8 ( a)(1) of the Act, and , therefore , is violative
of Section 8 (a) (1) of the Act.
Rule No. 30, in prohibiting the circulation of petitions at any time on company
property without the written consent of the plant manager and threatening discharge
for doing so, is violative of Section 8(a)(1) of the Act, since the prohibition is not
limited to company working time and working areas and there is no showing of any
valid reason for extending the prohibition to nonworking areas and nonworking time.
2. Carmel 's speeches in March 1963
General Counsel elicited credible testimony from five witnesses with respect to
Carmel's conduct in addressing two groups of assembled employees in the middle of
March 1963 10 None of their testimony was contradicted, and Carmel , who was
called as a witness by Respondent , was not questioned with respect to the incidents
10Although the allegation in paragraph 9(d) of the amended complaint to which this
testimony was related was somewhat narrower in scope than the testimony elicited, there
was no objection on that ground to its being received and Respondent did not raise this
point in its brief. Furthermore, it appears that the testimony was sufficiently related to
the allegation to have been received
AMERICAN INTERNATIONAL ALUMINUM CORP. 1211
Employee Florencio Marrero testified. that Carmel addressed a group of assembled
employees shortly before 3 p.m. on March 17. His testimony is as follows:
Well, he got up on a lunch table that we have in the front there and he told us
that he was happy that we were back to work after being laid off and that he
hoped that we were going to behave good and that we were not going to listen to
the union officers no longer or any more, I don't remember the exact words, but
he also said that he was going to have a lot of work for us, but if we were not
going to behave good he was going to give all our orders to Miami Extruders and
Benada.
That we were not going to be there like I said before in December, that our
families was going to suffer because he had money you know and we didn't and
so we were going to suffer for everything we did there wrong, and that's all
he said that I can remember.
Employee Osvaldo Acosta testified, with respect to this afternoon meeting, that in
the course of Carmel's speech he said that if the employees did not give him 8 hours
of work for 8 hours of pay "you are going to be out, by December many of you are
not going to be here." He further testified that Carmel said "not to put any attention
to the union because they were living all right and that we have mothers and kids and
a family to feed."
Employee Daniel Menendez testified with respect to the same meeting, and his
testimony was substantially corroborative of the other witnesses with respect thereto.
Employee Humberto Fernandez testified as to Carmel's conduct during a meeting
with the assembled employees during the morning shift about the middle of March.
His testimony is as follows:
He start making his speech then referring to his background about how tough
it was for him to make his money and all these things that he got in his life, how
he start and how he come up and what he have at present and why, and he said,
he mentioned also that he is supposed to have a meeting that day, that same day,
in the, I believe the Skyways Motel or at another place with the Assistant Director
of Florida of the United Steelworkers of America concerning to Diego Garces'
case, and he used bad expressions, or profane language against the staff director
and he said, they are a bunch of gangsters, that he don't like them, but he don't
have any choice, that he have to go there and meet with him.
He also said, don't listen to them they are trouble-makers I believe he said and
he said he knows most of the people are good employees or something like that,
but there are still some that we have to stir them up you know things like that
and he said, I want to remind you that Diego Garces is already three months
outside of work and he don't have any money in his pocket and these people from
the union they don't give him nothing because they don't care nothing about the
people, and he say also I sold already one press and I am willing to contract all
the work on the outside to Miami Extruders and to Benada if you don't cooperate
with me in this place and there is not going to be any bathrooms left when I
finish with this place.
Q. (By Mr. JONES.) Do you remember anything else that he said?
A. Well, he said in December we have to discuss this contract and I got a lot
of money in my pocket and he just clicked his pocket and says I have got a lot of
money in my pocket to fight this union, if it's necessary, and I just don't care you
know when I do something I don't care how much it costs me, but I do it, so in
December there is only going to be one press operating on the first shift if it's
necessary, and that's all that went on and so forth.
Employee Santiago Valdes testified as to the same meeting, and his testimony was
substantially corroborative of that of Fernandez.
It is concluded that in the course of his speeches to the two groups of employees,
Carmel clearly indicated his hostility toward the union officials and implied that if
the employees followed the guidance of the union leaders he would curtain his opera-
tions in December 1963. It appears that his reference to December was intended to
indicate the time when the then existing collective-bargaining contract would terminate
according to its provisions. It is concluded that Carmel's statements constituted inter-
ference, restraint, and coercion within the meaning of Section 8 (a)( I) of the Act, in
that he implied he would take economic reprisals against the employees if they
followed union leadership. It does not appear that his threat of reprisal was predi-
cated solely upon a failure to give him 8 hours of work for 8 hours of pay. In the
context of his hostile statements about the union officials, reference to the December
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
date (the termination date of the contract), and statements with respect to not
following the leadership of union officials or not paying any attention to them, it is
concluded that the threat of loss of work was calculated to undermine adherence to
the Union.
3. Evidence of slowdown
Although the record discloses that on several occasions management accused
employees of engaging in a slowdown, the record does not disclose a basis for a good-
faith belief that any of the employees engaged in such conduct prior to August 27,
1963. However, starting on August 27, the record discloses that Respondent's produc-
tion on its presses fell considerably below normal, and the record does support a
finding that a basis existed for Respondent's good-faith belief that certain of the
employees deliberately attempted to curtail production. Following is an analysis of
the evidence with respect to the conduct of employees on each of the presses during
the three shifts 11 of August 27 and the first shift on August 28, and in the shipping
department
August 27, press No 1, first shift- Joe Gonzalez, who was the foreman on press
No. I for the first shift, was called as a witness by General Counsel and was cross-
examined by counsel for Respondent with regard to production on his press. There
is no showing that he had any difficulty with production during the first shift on
August 27 on press No. 1.
August 27, press No 2, first shift: Anthony R. Trulli, foreman on press No. 2 for
the second shift, testified that he had to shut the press down at 1:24 p.m because of a
full table His testimony indicated that the runout table became filled because
Humberto Fernandez,12 the sawman, was a bottleneck, and Trulli described the
manner in which Fernandez deliberately worked slowly. Rufus E Stone, plant
superintendent, testified that he observed Fernandez and corrobrated Trulli's testi-
mony as to the pace at which Fernandez worked Fernandez testified that he was not
deliberately working slowly. The testimony of Trulli and Stone that Fernandez was
responsible for the table filling with metal is credited. Fernandez' explanation of
why the table filled with metal is not convincing. Therefore, it is concluded that
Respondent had a reasonable basis for a good-faith belief that Fernandez was deliber-
ately working slowly, and that it has not been demonstrated that Fernandez was
guiltless of such conduct. After the press shut down, four of the crew were retained
to clear the table. According to Trulli's testimony, he sent them home at 2 a m.
because they were not working. However, it appears that they were entitled to a
coffee break between 1:45 and 2 a.m , which they were permitted to take, and Trulli's
testimony as to their conduct does not support a finding that a reasonable basis existed
for a good-faith belief that the four men engaged in a slowdown. Trulh testified that
they stood around and talked for a few minutes after returning from the coffee wagon
instead of going immediately to work It is not clear that their break had ended.
Their slight delay in resuming their work is not convincing evidence that they were
engaged in a slowdown or that Respondent had a basis for a reasonable belief that
they were.
August 27, press No. 1, second shift: John H. Croxson, foreman of press No. 1,
second shift, testified that production was normal for the first couple of hours, but
that, starting in the middle of his shift, he had trouble getting metal off the table.
Although he testified that men were not doing their job at a normal rate, the press
was not stopped during the shift, except for a few minutes because of an incident on
press No 2 involving a quarrel between Hanzel Baker, press operator of that press,
and William Turpin, foreman of press No 2. It is concluded that the record will not
support a finding that a reasonable basis existed for a good-faith belief that any of the
crew of press No. 1, second shift, engaged in a slowdown
August 27, press No 2, second shift: William Turpin, foreman, testified that the
first hour on the shift was spent in clearing the table of metal. Turpin testified that
during the remainder of the shift, there was a bottleneck at the saw and the metal
handling was not the same as usual. He testified that he had to talk to the sawman,
Alexander Mills, repeatedly to get him to clear the table and that Mills said to him,
"I'm trying to do the best I can and I'm catching hell for it." 13 He also testified that
11 The first shift is from 7 a in . to 3 p in. , the second from 3 to 11 p in , and the third
from 11 p in to l am
12 Fernandez was, at the time , president of the Local.
13 This remark by Mills is too ambiguous to permit a reasonable inference It is not
clear whether he meant that lie was " catching hell" from his fellow workers for trying to
do his best , or "catching hell" from Turpin, despite the fact that he was trying to do
his best
AMERICAN INTERNATIONAL ALUMINUM CORP. 1213
Ovidio Ortega, Mills' helper , was not doing his job "the way it should be done" and
told him so. Turpin "pulled" Ortega off the job and replaced him with a man from
shipping. Neither Mills nor Ortega was called to testify. Turpin further testified
that, during the course of the shift , Fernandez , president of the Local , stated to him
that he was "pretty aggravated " about the Company complaining to Fernandez or
accusing Fernandez of a slowdown in the shipping and that Fernandez said, "They
think if they have a slowdown they have something , I'll really show them what a
slowdown is ," and that he indicated that it would also occur on the third shift.
Fernandez denied making such statements . Fernandez ' denial is credited.14 It
appears that the press did not have to be shut down during this shift after the first hour
spent in clearing the table, except for a few minutes following an argument between
Turpin and Hanzel Baker . The argument was precipitated by Baker 's refusal to obey
an order which Turpin had given to him. It is not clear who ordered the presses to
stop, nor is it clear who ordered the men to resume work In any event , the stopping
of the presses at this point does not appear to be of any significance , in view of the
brief period they were shut down and the apparently unusual circumstance which
precipitated the action . It is noted that two of the three men with whom Turpin had
difficulty during his shift , Mills and Baker, were among those who were notified to
return to work at the time of the mass discharge on August 30 It is concluded that
there was a reasonable basis for a good-faith belief that Mills and Ortega were
deliberately working slowly , and there is no showing that they were guiltless of such
conduct.
August 27 , press No. 1 , third shift : Mike B Cooper , foreman of press No 1 for
the third shift , testified that he started the press with a full table and that his bottle-
neck was at the stretcher and saw; that about 12 45 a.m. (August 28) he put the
entire crew on stretching and sawing but that they "did not get anywhere " Cooper
testified as to the moment of production he was able to obtain from his crew during
the shift , both prior to shutting down the press and after he put the entire crew on
stretching and sawing . The amount of production was considerably below normal
and, in the absence of an adequate explanation for it, it is concluded that Respondent
had a reasonable basis foi a good-faith belief that the entire crew was deliberately
working slowly and that the record will not sustain a finding that they were guiltless
of such conduct.
August 27 , press No. 2 , third shift : Billy Owens , foreman of press No. 2 for the
third shift, testified that he started his shift with the table almost full , that around
12.30 a . m he had to close down the press for 20 to 25 minutes because of a full
table; and that he shut down the press at 3 a .m. because he had a full table He
stated that his problem that night was at the saw table. After he shut down the press,
he kept four men, the stretchers and sawmen , to clean off the tables and he testified
that they did not work in a normal way. His testimony as to the amount of produc-
tion, both before and after he shut down the press , disclosed that it was considerably
below normal Therefore , it is concluded that, in the absence of an adequate
explanation for the abnormally low production , Respondent had a reasonable basis
for a good -faith belief that the members of the crew engaged in stretching and sawing
were deliberately working slowly and that the record will not sustain a finding that
they were guiltless of such conduct.
August 28 , press No. 1, first shift : Gonzalez, foreman of press No . 1 for the first
shift, testified that when he reported for work on the morning of August 28 he had a
conversation with Stone , plant superintendent ; and that Stone gave him, for the first
time, a book of warning slips, and told him to "raise a little hell with the men" and
hand out warning slips. Stone also told him that if he had to stop the press for any-
thing to send the men home . At 9 a .m , he had to stop the press because he had a full
table. He testified that he gave Orlando Rodriguez , a stretcher operator , a warning
slip at the time because he was working slowly and was a bottleneck ' He further
testified that he asked Rodriguez "about it " and Rodriguez replied "because of this
[table being full of metal] he was working slow too." Gonzalez also testified that
when he handed Rodriguez the warning slip, he ( Gonzalez) told him, "I 'm sorry, but
I feel you are the one responsible ." When Gonzalez was questioned as to what he
felt Rodriguez was "responsible for," Gonzalez testified, "For not stretching any
faster and I didn't even bother to check the table to see if the man could work any
faster or not, so actually maybe I was to blame there , I don't know ." In accordance
with Stone 's instructions , he sent the entire crew home.
,14Although some of Fernandez ' testimony is not credited , as indicated above , his de-
ineanor and testimony with respect to the content of his conversation with Turpin were
convincing He was aware of the provision in the contract which entitled the Company
to discharge employees for engaging in a slowdown, and appeared to be too astute to have
made such a damaging admission to Turpin
1214 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD
In view of Gonzalez' testimony that Rodriguez was a bottleneck and admitted to
working slowly, it appears that Respondent had a basis for a good-faith belief that
Rodriguez' slowness was deliberate, and there is no showing that he was guiltless of
such conduct. Gonzalez was supplied with another crew (some from press No. I
and others from the shipping department) and apparently worked the remainder of
the shift without incident, except that he had to stop the press "a couple of times . .
because the table got loaded with metal." However, there is nothing in his testimony
that would indicate that these stoppages were caused by any of the new crew deliber-
ately working slowly. Gonzalez also testified that he reported to Stone the fact that
he had given a warning slip to Rodriguez; that later he was called into Stone's office
and questioned about it by counsel for Respondent; and that thereafter, before the
third shift was due, he had a conversation with Stone about the performance on his
press that day and that Stone said to him, "Well we got them out of there, now, we
are going to keep them out."
August 28, press No. 2, first shift: Trulli, foreman of press No. 2 for the first shift,
testified that he started the shift with a table that "wasn't clean but it wasn't full
either." Apparently there was no trouble with production on his press until about
8:15 a.m. when he heard Santiago Valdes, the press operator, call "Fire" and that he
then saw Valdes with a fire extinguisher in his hand putting out a fire at the billet
heater.15 Because of the overheating, the billet melted, thereby destroying the heater
coil. Trulli further testified that he was informed by the maintenance man that it
would take 3 or 4 hours to repair the billet heater, and that he instructed his crew
that they would have to go home, since there was no need for them in the shipping
department. According to Gonzalez' testimony, however, some of the crew, as well
as some men from the shipping department, were put to work on press No. 1 after its
crew had been sent home at 9 a m
Respondent elicited testimony from a master electrician apparently to show that the
burning of the billet was deliberately caused by Valdes. The electrician, who had been
called in by Respondent to examine the press shortly after the incident, testified that
he found no malfunction which would have caused the billet heater to overheat He
also testified that it was possible for an operator to cause overheating deliberately.
While Valdes admitted that it is possible for the operator to overheat the billet in a
matter of seconds by pushing the reset button on the press, he denied that he had done
so. Valdes testified without contradiction that billets had overheated many times
before but he had been able to stop the overheating action more quickly. Stone
admitted that Respondent had had trouble with billet heaters on prior occasions, and
that on one occasion a heater coil had to be replaced Valdes' description of the inci-
dent is as follows:
... I was getting ready to go over to 'the run-out table to check the metal again
and somehow I seemed to note that I was taking a little longer with the billet
or for the billet heater to be hot and after working with the machinery for a
little while you get more or less a sense of the time and you know how long
it takes.
I glanced up at the temperature controller and saw it standing there at 600
degrees,16 and as I got off the stool to get over to the running table, I, from the
corner of my eye, I noticed like flames coming out of the billet heater. I glanced
over there and saw fire and smoke and I saw immediately that the billet was
melting.
So I ran over to the main switch and threw it off and that is the only way that
you can prevent billet from melting any further.
So I picked up a fire extinguisher and that was right there by the billet heater
directly, took the billet and gave it two or three blasts to make sure that no wires
or anything like that would get on fire.
From my observation of Valdes on the stand, his uncontradicted testimony that
billet heaters had overheated a number of times before, and Stone's testimony that, at
least, on one previous occasion a heater coil had been destroyed, it is concluded that
there is insufficient basis for a finding that the overheating was deliberately caused by
Valdes. The electrician's testimony that he was unable to find a malfunction to
explain why the overheating occurred does not appear to be sufficient basis upon
which to predicate a contrary finding, particularly in view of the fact that he testified
that he did not do the work of replacing the coil, could not check out the heat control
16 The part of the press in which the billet is heated to a molten state so that it can
be extruded through the die
16 Six hundred degrees is well below the temperature which would cause the billet to
melt.
AMERICAN INTERNATIONAL ALUMINUM CORP. 1215
unit until after the coil had been replaced, and would not "want" to make the state-
ment that the overheating could not have been caused by something other than the
deliberate act of the operator.
The shipping department- Although evidence was produced by Respondent appar-
ently to show that there was a slowdown in the shipping department, Respondent
does not refer thereto in its brief In view of the practice of borrowing men from the
shipping department to work on the presses, it does not appear that the evidence in the
record of production figures for the shipping department is sufficiently reliable on
which to predicate a finding that there was, in fact, a slowdown However, Respond-
ent elicited testimony from Otis Rawls, a truckdriver (one of the employees who was
notified to return to work at the time of the mass discharge on August 30), bearing
on the matter of a slowdown in the shipping department. Rawls testified that on the
morning of August 28, Osvaldo Acosta, the forklift driver on the first shift, loaded
his (Rawls') truck and that he did not get out on the road until 8:45 or 9 a m.,
although ordinarily he is on the road by 7:30 or 8 a.m Rawls further testified that
he told Acosta to "hurry up" and Acosta asked him, "What are you in a hurry for "
Acosta denied that he was working slowly or that be told Rawls to do so. He further
testified that he loaded two trucks and did not remember whether he loaded Rawls'
truck first or that of the other driver. He also testified, without contradiction, that
the amount of time it takes to load a truck can vary, depending upon various factors
which he described Although there was a foreman in the shipping department, there
is no showing that Acosta was admonished by him for the pace at which he was
working In view of all these circumstances, it is concluded that there was not a
reasonable basis for Respondent to have a good-faith belief that Acosta was deliber-
ately working slowly.
Rawls testified that he returned to the plant around 11 o'clock and helped in the
shipping department. According to his testimony, Rudy V. Alonso, financial secretary
of the Local, said to him, "It's a slowdown." Alonso denied that he made such a
statement to him or the he was working slowly. Rawls further testified that he "felt"
that the men in shipping were working slowly, but he was unable to describe, when
requested to do so, what he observed that led him to this conclusion. There is no
showing that the foreman in the department admonished any of the men for working
slowly, and, by the time Rawls had returned to the shipping department at 11 that
morning, a number of the personnel assigned to that shift had left. Two of them,
Acosta and Miguel Rodriguez, had been sent home by Carmel after Carmel had had
an argument with Acosta and Rodriguez had attempted to intervene, and some of the
shipping men had been detailed to work in the press department. Therefore, it would
appear that, since the department was short-handed, its production was necessarily
affected.
In view of these circumstances and of the fact that Rawls did not appear to be a
convincing witness, Rawls' testimony as to Alonso's statement and the existence of a
slowdown is not credited There is no showing that Rawls had communicated to
Respondent what he testified to on the stand prior to the mass discharge. However,
assuming that he had and that Respondent believed him, nevertheless it is concluded
that the men in the shipping department were not, in fact, engaged in a slowdown.
This conclusion is predicated on the credited denials of Alonso and Acosta and the
absence of any reliable corroborative evidence that the men were deliberately work-
ing slowly 17
4. The action taken by Respondent (August 28 to 30)
Herbert Mintz, counsel for Respondent, testified, in the main, as to the action he
took on behalf of Respondent between August 28 and 30 and the reasons therefor.
Also, William McCall, representative of the Union, and Mintz testified with respect
to their conversations during this period.
Mintz testified that he arrived at the plant about 10:40 a m on August 28 after two
calls from Respondent requesting him to come to the plant Mintz further testified
that Carmel and Stone reported to him what had occurred earlier that morning (such
as Carmel's quarrel with Acosta, the billet heater incident, the press crew being sent
home, and the warning slip which was given to Rodriguez) In Mintz' presence Stone
talked to the maintenance man and an electrician about the billet heater and Mintz
17 The production figures for the first shift of August 28 cannot be relied on, since they
cannot be used to determine what was produced between 11 a m. and 3 p in. (the period
during which Rawls was in a position to observe whether the men were working slowly),
and since the department was short -handed In the circumstances , the fact that the men
were guiltless of a slowdown can only be proved by credited denials of such conduct.
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
advised that they get a photographer to take some pictures of the press. Mintz
further testified that Carmel asked him during the first shift whether the next shift
should be "let in" or whether there was "enough evidence on the Union ." Apparently
Mintz had, prior thereto, made some investigation of what evidence there was of a
slowdown . To continue with Mintz' testimony:
I concluded in the early afternoon that we were not going to let the second shift
come in to work. I also was of the view that afternoon that if the facts are there
in support of the client 's position that we probably were going to fire the work
force, although my mind was not made up with any finality at that point at that
time.
As has been above indicated , Respondent endeavored to prevent the second shift
n from 4'punching in," but was unsuccessful . Employees went to their work stations
and, despite announcements that they leave, remained there until after police were
summoned and a representative of the local had indicated that they should leave.
To return to Mintz' testimony , he made several unsuccessful telephone calls in an
endeavor to reach representatives of the Union , and then composed a telegram to the
Union which was sent that afternoon and which read as follows : '
Please be advised that the Company considers the collective bargaining agreement
to have been breached by the repeated slowdowns and other unprotected activi-
ties of the employees and union stop as a result the Company finds it impossible
to operate profitably or efficiently and is compelled to exercise its right to
terminate and rescind the collective bargaining agreement stop Please get in
touch with the Company immediately upon receipt of this telegram
McCall testified that he was informed that evening that the employees had been
"locked out" of the plant and telephoned Mintz. He asked Mintz why the employees
had been locked out, and Mintz informed him of the telegram which had been sent.
McCall's testimony is substantially in accord with that of Mintz with respect to their
conversation Mintz told him there had been a slowdown . McCall asked him if he
had any proof of it , and stated that, if he had, the contract gave him the right to
terminate the employees involved in the slowdown and that he should have taken such
action, instead of terminating the contract Mintz replied , to quote McCall 's testi-
mony, "that it was pretty hard for them to pinpoint just who were the instigators and
actually who all was involved in this alleged slowdown." Mintz also testified to mak-
ing such a statement . They agreed to meet the next day at 3.30 p in. at the plant.
McCall testified that at 10 the next morning , August 29 , he received a call from
Carmel notifying him that the meeting could not be held at the plant and would be at
the Miami Skyways Motel , instead, at 1 o'clock. Evidently there was some confusion
in either the message or in Mintz ' instruction to Carmel , for Mintz testified that he told
Carmel to notify McCall that he was going out of town and would be back at 1 o'clock
and to make arrangements for a meeting that afternoon . When Mintz failed to arrive
at the motel about 1:45 p.m.; McCall called the plant Shortly thereafter Mintz
returned his call and apologized for the misunderstanding . Mintz testified that he
told McCall that he would "prefer to spend the afternoon looking into the facts
more fully [apparently instead of meeting with McCall] and he [McCall] said to me
that he would have assumed that I would have looked into the facts before I sent that
telegram [terminating the contract ]." Mintz told him that he would call the next day
Mintz testified that he spent the rest of the day looking for evidence of slowdown,
and that he discussed with Carmel two alternatives , whether to use the lockout as a
lesson and take the employees back, or to keep them out. Mintz testified that Carmel
said he did not think the employees "would ever work right ," and that he told Carmel
that in his opinion he had a right to discharge the employees . Mintz further testified
that the next day. August 30, lie arrived at the plant a little after 7 a m ; that he told
Carmel that he could staff the plant and use any personnel he wanted ; and that he
then composed a telegram to be sent to all employees notifying them they were dis-
charged because they and the Union engaged in a slowdown , which telegrams were
sent out to the employees that day.
About 9:30 that morning Mintz called McCall. Although there are some variances
in the testimony of McCall and Mintz as to the content of their conversation, their
testimony is substantially in accord Mintz told McCall that he was convinced that
there was a slowdown and that discharge telegrams were being sent to the employees
McCall testified that he asked Mintz what proof he had, and that Mintz replied, "We
have a picture of the table full of metal and we have statements from some of the
employees that although they did not want to be ' part of the slowdown they were
AMERICAN INTERNATIONAL ALUMINUM CORP. 1217
afraid not to be " 18 McCall further testified that he told Mintz, "If you have these
statements from some of your employees I should say that you ought to terminate
them because your contract gives you that right " McCall suggested that Mintz meet
with him and the Local's grievance committee. Mintz testified that he told McCall
"that the obligation to meet with the five man grievance committee is an obligation
of the contract and that the contract had been terminated," and that McCall disagreed
that the contract had been terminated Both Mintz and McCall testified that Mintz
said that he would meet with McCall as "a matter of courtesy" to him McCall said
that he would call him back, and upon McCalls renewed insistence that the meeting be
with the full committee present and Mintz refusal to do so, their conversation termi-
nated, although according to Mintz, he offered to meet with McCall and one member
of the committee.
It appears that the discharge telegram went to all of the employees listed in
Appendix A of the amended complaint In Appendix B thereof are listed the names of
employees who returned to work the next week Mintz' testimony with respect to
the action taken as to the employees listed in Appendix B is as follows.
Yes, at the same time, that then [ indicated or told Rusty [Stone] that discharge
telegrams are to go to everyone I also told him to make up a list of those
employees, who in his judgment, would be efficient workers and if not, under
the influence of the people who previously were in the plant and exercising a role
of leadership What [ told him was to make up a list of those employees who he
could trust to be good workers and not pull a slow down again
McCall sent a letter to Mintz dated August 30, 1963, which stated in part.
Your refusal today to meet with the members of the Local Union committee
is another indication of the bad faith on the part of the Company I do not
consider a meeting between you and myself as any extension of courtesy. There
is an obligation on the part of the Company to meet with the Committee and
myself to discuss the problem at hand I feel the Committee Membeis are
better qualified than I to discuss the problems in the plant and therefore request
their presence We will gladly meet with you and any other Company repre-
sentatives at any time and await your suggestions as to time and place of meeting.
I wish to further advise that there are several grievances pending (#69 thru
#74) and request an immediate meeting for the purpose of resolving these
grievances.
McCall also sent a letter, dated October 18, 1963, to Carmel requesting the processing
of the grievances referred to in his letter of August 30 There were no replies to
either of said letters. A stipulation was received during the course of the hearing to
the effect that the Union did not represent a majoi ity of the employees at work in the
plant after August 30
Although Respondent admitted that it made certain changes in its operations after
the mass discharge on August 30, the record fails to disclose in what way, if at all, the
changes affected the terms and conditions of employment, except with respect to a
change in the minimum wage to a $1 25 per hour from the $1.60 pre hour provided
under the contract
5. Concluding findings re Respondent's actions (August 28 to 30)
It is, of course, well established that employees who participate in a slowdown
engage in concerted activity not protected under the Act and may be discharged for
that reason However, this principle is not applicable to the circumstances herein,
since it is concluded that Respondent's action in locking out and then teiminaintg the
employment of the entire work force was not motivated by that reason, but was dis-
criminatorily motivated in violation of Section 8(a)(3) and (1) of the Act It is
also concluded that in taking this action and the action preliminary to it without con-
sulting the Union and by refusing to recognize and bargain with the Union after
August 28 Respondent violated Section 8(a)(5) and (1) of the Act
As found hereinabove, there were frequent differences between management and
representatives of the Union and the Local. As was also found hereinabove, Respond-
ent demonstrated its hostility toward the Union and its adherents by Carmels speeches
to the employees in the middle of March 1963, in the course of which he indicated a
desire to be rid of the Union. From Respondent's conduct during the period between
August 28 and 30, 1963, in the context of Respondent's animosity toward the Union
ie No such statements were pioduced at the hearing, nor was there any testimony to this
eaect Rawls was the only employee to testify that lie was told to work slowly, and there
was nothing in his testimony to suggest that he had reason to be afraid not to comply
770-076-65-vol 149 78
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and its adherents, it is inferred that Respondent's termination of the contract, lockout
of its employees on August 28, and the discharge of the entire work force on Au-
gust 30 were not based on a slowdown (which it is found Respondent could reasonably
have believed some of the employees engaged in), but were asserted to be based
thereon as a pretext to get rid of the Union
When Mintz came to the plant in midmorning of August 28, he made a preliminary
investigation which apparently satisfied him sufficiently to assure Respondent that he
had "enough evidence on the Union" so that Respondent did not have to "let in" the
second shift It is indicated in Mintz' testimony that the evidence he had was
"enough" in the sense that it justified a lockout under the contract. However, it
appears from the actions taken by Respondent and conclusions it reached at that time,
which were testified to by Mintz, that it was deemed there was enough evidence not
merely to justify a lockout, but sufficient to afford Respondent a pretext for getting
rid of the Union and its majority representation.
Mintz' testimony indicates that he had come to the conclusion, before the second
shift was due to report on August 28, that, if he could find the facts to "support" doing
so, Respondent would fire the entire work force. He testified that Carmel had
expressed the desire to get rid of the entire work force. In the afternoon of August 28,
before making a thorough investigation (which he did the following day), Mintz sent
a telegram to the Union to notify it that Respondent was terminating the contract
This was done without giving the Union any opportunity to discuss with Respondent
its accusations against the employees and the Union, or to investigate the accusations
and put a stop to the slowdown There is testimony that Mintz made several calls to
union headquarters in an unsuccessful attempt to reach a representative of the Union.
Assuming that he did make such calls, this rather perfunctory acknowledgment of the
Union's interest and responsibility, followed immediately by the telegram terminating
the contract, cannot be considered indicative of good faith on the part of Respondent
in carrying out its bargaining relations with the Union.
When McCall called Mintz on the evening of August 28 and was informed of the
termination of the contract because of a slowdown, he asked Mintz if he had any
proof of the slowdown. When told by Mintz that he had, McCall pointed out to
him that he had the right to terminate the employees involved. This indicated the
Union's disavowal of the slowdown 19 and a willingness to approve of Respondent's
disciplinary action against those guilty thereof However, it appears that Mintz had
already made up his mind that Respondent would not take action against only the
individual employees involved He stated to McCall, on the evening of the 28th, that
he could not "pinpoint" the employees involved in the slowdown. It is inferred
therefrom that Respondent had already deicded to use this as a reason for discharging
the entire work force By the testimony of its foremen, Respondent demonstrated
that it was able to "pinpoint" employees who had given Respondent reason to believe
they were deliberately working slowly (as indicated hereinabove in the subsection
entitled "Evidence of slowdown"). By Mintz' use of the term "pinpoint," it appears
that Respondent did not believe that the entire work force was involved in the slow-
down. The analysis of the evidence elicited with respect to a slowdown demonstrates
the lack of a basis for a belief that the entire work force or even a major portion of it
was involved That Respondent had no intention of discharging, on an individual
basis, those employees who it had reason to believe were engaged in such activity
is further indicated by the fact that Orlando Rodriguez was given a warning slip on
the morning of August 28 and sent home, although his foreman found him to be a
bottleneck in the production of press No 1 and Rodriguez admitted to working
"slow " Likewise, none of the other employees whose foremen found them to be
"bottlenecks" was discharged on an individual basis, but, at most, was disciplined, at
the time, by merely being sent home.
On August 29, when McCall sought to have the meeting with Respondent to which
Mintz had agreed the previous day, instead of carrying out its obligation to bargain
with the Union, Respondent through Mintz, deferred meeting with the Union by
indicating that it would be better for him (Mintz) to spend that afternoon investigat-
ing the facts Thus, it was, at least, implied that he would meet with the Union after
he finished his investigation. However, after Mintz spent the afternoon of the 29th
"looking into the facts more fully," instead of discharging the individual employees
who Mintz' investigation must have revealed could reasonably be deemed to have
been involved in a slowdown, or meeting with the Union as he implied the previous
19 The record will not support an inference that the Union, in fact, instigated, en-
couraged, or condoned the slowdown or had knowledge of it prior to the evening of
August 28 In view of the findings herein, no purpose would be served in considering the
legal aspects of an agency relationship between the officers of the Local and the Union.
AMERICAN INTERNATIONAL ALUMINUM CORP. 1219
day that he would, Mintz had telegrams sent to the entire work force notifying them
of their discharge Taking this action without giving the Union prior notification of
the intention to do so and an opportunity to discuss it is further evidence of Respond-
ent's lack of good faith in carrying out its bargaining relations with the Union
At the same time that it sent the telegrams of discharge, it sent notification to the
18 employees listed in Appendix B of the amended complaint that they report back
to work the following week According to the testimony of Mintz and Stone, these
18 employees were selected on the basis of Stone's judgment that, if they were
removed from the "influence of the people who previously were in the plant and
exercising a role of leadership," they could be trusted not to "pull a slowdown again "
It is inferred from this that those people who were selected were considered by
Respondent not to be strong adherents of the Union Although Mintz was questioned
as to why these 18 employees were given a notice of discharge and, at the same time,
were notified to retui n to work, no reasonable explanation was given therefor The
only reasonable inference that can be drawn from such inconsistent actions is that
Respondent was attempting to give the appearance of a consistent treatment of the
entire work force to support the contention that it could not "pinpoint" which
employees it had reason to believe were actually involved in the slowdown and,
therefore, could with impunity discharge all of the employees 20
In view of all the foregoing findings, it is concluded that the lockout of all of the
employees, commencing with the second shift on August 28, and the mass discharge
of the entire work force were part of a plan of action designed to destroy the Union's
majority representation and rid the Company of the obligation to bargain with the
Union, and were, therefore, violative of Section 8(a)(3) and (1) of the Act.
Although certain of the employees by deliberately working slowly did give Respond-
ent good cause to discharge them, it is concluded that, by their inclusion in the mass
discharge, they were not discharged for engaging in a slowdown, but as part of the
plan to accomplish the above-described discriminatory objective 21 It is well estab-
lished that it is a violation of the Act to discharge an employee for a discriminatory
reason, even though good cause may have existed for his discharge
It is further concluded that Respondent's conduct with respect to the Union was in
contravention of its obligations to bargain with the Union in violation of Section
8(a)(5) and (I) of the Act When assured that it had evidence on August 28 that
some of the employees were deliberately working slowly. Respondent immediately
terminated the collective-bargaining agreement without more than a perfunctory
attempt to call a representative of the Union before doing so On the evening of
August 28, when McCall called Mintz and was informed by him that Respondent had
evidence of a slowdown, McCall demonstrated the Union's disavowal of the slowdown
by clearly indicating that the Union would approve disciplinary action against the
employees involved, and requested an opportunity to discuss the matter Although
arrangements were made for a meeting the next day (August 29) at the plant, the
meeting was canceled by Respondent. In lieu of meeting that day, Mintz indicated
to McCall that he (Mintz) might better spend the time in making a further investiga-
tion of the facts Then, the next morning (August 30), without giving the Union an
opportunity to discuss the matter, and without prior notice to the Union, Respondent
sent notices of discharge to the entire work force Mintz offered on that day to meet
with McCall only as "a matter of courtesy" to him Respondent stated in its answer
that "on and after August 28 and/or August 30" there was no further obligation on
the part of Respondent to recognize and bargain with the Union and that it did not,
in fact, do so It is concluded that Respondent did have an obligation to recognize
and bargain with the Union, not only during the period between August 28 and 30,
but also thereafter, in view of the finding that the Union's loss of majority representa-
tion was caused by the discriminatory discharge of the employees listed in Appendix
B It is further concluded from the haste with which Respondent acted and its failure
to give the Union an opportunity to discuss the actions Respondent contemplated prior
to its taking such actions, Respondent did not bargain with the Union in good faith
in accordance with the aforesaid obligation.
c0 In view of the findings of the pretextual nature of the reason advanced by Respond-
ent tor the mass discharge, no purpose would be served in going into the validity of Re-
spondent's position that it could, for such a reason, discharge all the employees, even
though there was no basis for a good-faith belief that all were engaged in a sloe dois n
As above indicated, the iecoid discloses that there was no basis foi such a belief with
respect to a large majority of those discharged.
"'This should not, however, be construed as condonation by the Trial Examiner of the
conduct of said employees in engaging in a slowdown.
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is alleged in the complaint that by termination of the contract the employees
listed in Appendix C of the amended complaint, who were on layoff status at the time,
were discriminatorily deprived of their rights of recall provided under the contract
The record discloses that Respondent by its termination of the contract considered it
had no further obligation to comply therewith. Therefore, it appears that these rights
were discriminatorily terminated, in view of the finding hereinabove that the termina-
tion of the contract was discriminatorily motivated However, the record does not
disclose whether all, or any, of said employees would have been entitled to be
recalled, had the Respondent not committed the unfair labor practices found herein
This problem is discussed hereinbelow in section V titled "The Remedy."
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section 111, above, occurring in con-
nection with its operations described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and tend
to lead to labor disputes burdening and obstructing commerce and the free flow
thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, it
will be recommended that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act
Attached hereto are appendixes containing names of employees in three different
categories Appendix B contains the names of employees who were discharged on
August 30 and were never reinstated; Appendix C contains the names of employees
who were discharged on August 30 and were reinstated on the dates appearing oppo-
site their names, Appendix D contains the names of the employees who were on layoff
status at the time of the termination of the collective-bargaining agreement on Au-
gust 28 and who were deprived of their rights of recall by reason of the termination
of the contract which provided therefor.
Having found that the employees listed in Appendix B were discriminated against
in respect to their hire and tenure of employment, it will be recommended that the
Respondent be ordered to offer them immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to their seniority or other
rights and privileges It will be further recommended that Respondent make them
whole for any loss of earnings they may have suffered because of the discrimination
against them, by payment of a sum equal to the amount they normally would have
earned as wages from the date they were locked out of the plant 22 to the date of the
offer of reinstatement, together with interest thereon as provided below The loss of
pay should be computed in accordance with the formula and method prescribed by
the Board in F W Woolworth Company, 90 NLRB 289, and the interest, payable in
accordance with Isis Plumbing & Heating Co., 138 NLRB 716, should be computed at
the rate of 6 percent per annum on the amount due in each instance for each calendar
quarter (under the Woolworth formula) beginning with the end of the first calendar
quarter and continuing with each succeeding calendar quarter until payment of such
amount is properly made.
Having found that the employees listed in Appendix C were discriminated against
with respect to their hire and tenure of employment from the date they were locked
out until the date they were recalled to work, it will be recommended that the
Respondent make them whole for any loss of earnings they may have suffered because
of the discrimination against them by payment of a sum of money equal to the amount
they normally would have earned as wages from the date they were locked out to
the date they were recalled to work, less their net earnings during said period,
together with interest thereon at the rate of 6 percent per annum.
Having found that the employees listed in Appendix D were discriminatorily
deprived of their rights of recall by reason of the discriminatorily motivated termina-
tion of the contract, an order will be recommended that, if it be determined that any
of them would have been recalled had the Respondent not committed the unfair labor
=Inasmuch as it was found hereinabove that the lockout, which commenced with the
second shift on August 28, was part of the plan to accomplish the discriminatory objec-
tive of destroying the Union's majoiity repiesentation, the backpay should start at the
date they would have worked had their various shifts not been locked out
AMERICAN INTERNATIONAL ALUMINUM CORP. 1221
practices found herein, they shall be offered immediate and full reinstatement to the
positions to which they would have been recalled, without prejudice to their seniority
and other rights and priveleges, and made whole for any loss of earnings they may
have suffered because of the discrimination against them, by payment of a sum of
money equal to the amount they would have earned as wages from the date they
would have been recalled to the date of the offer of reinstatement, less their net earn-
ings during said period, together with interest thereon, said amount to be computed in
the manner hereinabove described 23
Having found that Respondent refused to recognize and bargain with the Union in
violation of the Act, an order will be recommended that, upon request, the Respondent
bargain collectively with the Union as the bargaining representative of the appropriate
unit described in section I11, above, and, if an understanding is reached, such under-
standing be embodied in a signed agreement
It was requested by the General Counsel, as a further remedy, that the collective-
bargaining agreement be ordered reinstated for a period of time equivalent to the
amount of time it was to remain in force from the date it was terminated by Respond-
ent (August 28, 1963) to the date provided in the contract for its termination (Decem-
ber 19, 1963) It is not considered that this requested i emedy is necessary to effectu-
ate the policies of the Act, since it appears that the recommendations made herein con-
stitute an adequate remedy for the untair labor practices committed
Inasmuch as the unfair labor practices committed by the Respondent are of a
character striking at the root of employees' rights safeguarded by the Act, it will be
further recommended that the Respondent cease and desist from infringing in any
manner upon the rights guaranteed its employees in Section 7 of the Act.
CONCLUSIONS OF LAW
I By maintaining rules Nos. 7, 24, and 30 of its "Working Rules and Regulations,"
Respondent interfered with, restrained, and coerced its employees in violation of
Section 8(a) (1) of the Act.
2 By threatening employees with economic reprisal should they continue to adhere
to the Union (by speeches made by its president, Jack Carmel, in the middle of March
1963), Respondent violated Section 8(a) (1) of the Act
3 By terminating its collective-bargaining agreement with the Union on August 28,
1963, and refusing thereafter to recognize and bargain in good faith with the Union as
the collective-bargaining representative for the appropriate unit described in section
III, above, Respondent violated Section 8 (a) (5) and (1) of the Act
4 By discriminatorily locking out its employees commencing with the second shift
on August 28, 1963, discriminatorily discharging the employees listed in Appendixes
B and C hereto, and discriminatorily terminating the rights of recall of employees
listed in Appendix D hereto, Respondent violated Section 8 (a) (3) and (1) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law and the entire
record in the case, and pursuant to Section 10(c) of the National Labor Relations Act,
as amended, it is recommended that the Respondent, American International Alumi-
num Corp , its officers, agents, successors, and assigns, shall:
1 Cease and desist from-
(a) Interfering with, restraining, or coercing its employees in the exercise of their
rights guaranteed under Section 7 of the National Labor Relations Act, as amended, by
maintaining in effect rules Nos 7, 24, and 30 of its "Working Rules and Regulations."
=r It should be noted, as a matter of caution , that their contractual rights of recall
terminated on various past dates It remains necessary to determine whether they would
have been recalled before such terminal dates, had the unfair labor practices found herein
not occurred To illustrate , assuming the right of recall of one of the employees in this
category terminated on November 1, 1963, it must be determined whether he would have
been recalled prior to that date, had the employees listed in Appendix B never been dis-
charged In other words , it cannot be consideied that an Appendix D employee was en-
titled to be recalled to a position for which an Appendix B employee has been awarded
backpay.
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Interfering with, restraining, or coercing its employees by threatening them
with economic reprisals should they continue to adhere to the United Steelworkers of
America, AFL-CIO, and United Steelworkers of America, Local Union 5900, AFL-
CIO.
(c) Refusing to recognize and bargain with the United Steelworkers of America,
AFL-CIO, as the collective-bargaining representative for the following appropriate
unit:
All production and maintenance employees, including warehouse employees, truck-
drivers, janitors, leadmen , utility men, 'receiving and shipping clerks, and the dis-
patcher at the Miami, Florida, plant, but excluding office clerical employees, guards
and watchmen, professional, and supervisory employees as defined in the Act.
(d) Discouraging membership in the above-named labor organizations, or in any
other labor organization of its employees, by discriminating in regard to their hire
or tenure of employment or any term or condition of employment.
(e) In any other manner interfering with, restraining, or coercing its employees in
the exercise of the right to self-organization, to join, form, or assist labor organiza-
tions, including the above-named labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection, or to refrain
from any or all of such activities.
2 Take the following affirmative action which it is deemed will effectuate the
policies of the Act:
(a) Upon request, bargain collectively with the United Steelworkers of America,
AFL-CIO, as the exclusive representative of the employees in the aforesaid unit, and,
if an understanding is reached, embody such understanding in a signed agreement.
(b) Offer to the employees listed in the attached Appendix B immediate and full
reinstatement to their former or substantially equivalent positions, without prejudice
to their seniority and other rights and privileges, and make them whole for any loss
of earnings they may have suffered as a result of the discrimination against them, as
provided in the section of this Decision entitled "The Remedy."
(c) Make the employees listed in the attached Appendix C whole for any loss of
earnings they may°have suffered as a result of the discrimination against them, as
provided in the section of this Decision entitled "The Remedy."
(d) Offer to the employees listed in the attached Appendix D immediate and full
reinstatement to the positions, or substantially equivalent positions, if any, to which it
is determined they would have been recalled had not Respondent committed the
unfair labor practices found herein, and make such employees whole in the manner
provided with respect to them in the section of this Decision entitled "The Remedy"
for the loss of pay they may have suffered, if any, by reason of Respondent's discrimi-
natory termination of their rights of recall.
(e) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to make the
determination required in paragraph (d), above, and to analyze the amount of back-
pay due under the terms of this Recommended Order.
(f) Post at its plant in Miami, Florida, copies of the attached notice marked
"Appendix A," 24 as well as copies of Appendixes B, C, and D. Copies of said
notice , to be furnished by the Regional Director for Region 12, shall, after being
signed by an authorized representative of the Respondent, be posetd immediately upon
the receipt thereof, and be maintained by it for a period of 60 consecutive days there-
after, in conspicuous places, including all places where notices to employees are
customarily posted.
(g) Notify said Regional Director , in writing, within 20 days from the receipt of
this Trial Examiner's Decision, what steps the Respondent has taken to comply
therewith.25
24 If this Recommended Order is adopted by the Board, the words "a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Examiner"
in the notice. If the Board's Order is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "a Decree of
the United States Court of Appeals, Enforcing an Order" for the words "a Decision and
order "
25 If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for Region 12, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith "
AMERICAN INTERNATIONAL ALUMINUM CORP. 1223
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT maintain in effect rules Nos. 7 , 24, and 30 of our "Working
Rules and Regulations."
WE WILL NOT threaten our employees with economic reprisals should they
continue to adhere to United Steelworkers of America, AFL-CIO, and United
Steelworkers of America, Local Union 5900, AFL-CIO.
WE WILL NOT discourage membership in, or protected activity on behalf of,
the above labor organizations , or in any other labor organization of our
employees, by discriminating in regard to their hire or tenure of employment or
any term or condition of employment
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization , to join, form , or assist
labor organizations , including the above -named labor organizations , to bargain
collectively through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all such activities.
WE WILL offer to the employees listed in Appendix B immediate and full rein-
statement to their former or substantially equivalent positions, without prejudice
to their seniority and other rights and privileges , and make them whole for any
loss of earnings they may have suffered as a result of our discrimination against
them.
WE WILL make the employees listed in Appendix C whole for any loss of earn-
ings they may have suffered as a result of our discrimination against them.
WE WILL offer to the employees listed in Appendix D immediate and full rein-
statement to the positions , or substantially equivalent positions , if any, to which
it is determined they would have been recalled, had we not discriminated against
them by terminating their rights of recall , and make them whole for the loss of
pay they may have suffered, if any, by reason of said discrimination.
WE WILL, upon request, recognize and bargain with United Steelworkers of
America, AFL-CIO, as the collective -bargaining representative of the following
unit of our employees:
All production and maintenance employees , including warehouse employ-
ees, truckdrivers , janitors,- leadmen , utility men, receiving and shipping
clerks, and the dispatcher at the Miami, Florida , plant, but excluding office
clerical employees , guards and watchmen, and professional and supervisory
employees as defined in the Act.
WE WILL, if an understanding is reached , embody such understanding in a
signed agreement.
All our employees are free to become or remain members of United Steelworkers of
America, AFL-CIO , and United Steelworkers of America , Local Union 5900, AFL-
CIO, or of any other labor organization , or to refrain therefrom.
AMERICAN INTERNATIONAL ALUMINUM CORP.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NOTE -We will notify the employees entitled to reinstatement , if presently serving
in the Armed Forces of the United States, of their right to full reinstatement upon
application in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948 , as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Ross
Building, 112 East Cass Street, Tampa, Florida, Telephone No. 223-4623, if they have
any question concerning this notice or compliance with its provisions.
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
Joe Kurocki Mario Martinez Carlos M. Falcon
Dick Emerson Rudy Alonso Julian D'Costas
Santiago Valdes Roger E. Scott Roberto Martinez
Diego Garces Ramon S. Pola Ollie Scott
A. Dario Jimenez Adolfo Chao Clinnie Brinson, Jr.
Gerardo Barreto Arnaldo Silverio Candido Sanchez
Orlando Rodriguez Pedro Martinez Attic Harris
Osvaldo Acosta Rafael Fernandez Ramon Sanchez
Jose S. Martinez Florencio Marrero Pablo Garcia
Manuel Torres Juan C. Moreno Lugerico Lopez
Petro Beacham Waldo Quesado Evelio Machado
Miguel Rodriguez Guillermo Mirabal Ramon Pardo
Humbarto Fernandez Luis Barandiaran Armando Granado
Polio Torres Adolfo Colombo Jorge Machado
Vincente Garcia Ovidio Ortega Emiliano Sosa
Zoilo Gonzales Angel Tamargo Robustiano Gonzalez
Miguel Hernandez Jose Ramirez Jesus Diaz
Marcelino Cambra Hector A. Ortiz Gervasio Gomez
Jose Sarmiento Daniel Menendez Augusto Hernandez
Osvaldo Labrador Jose R. Gort Alcibiades Mujica
Raul Martinez
APPENDIX C
James Gentry__________ 9/3/63 Roscoe Gibson_________ 9/3/63
Charles B. Felton________ 9/3/63 Lawrence Cochran______ 9/3/63
Reynaldo Perez_________ 9/4/63 Jesse Jones_____________ 9/3/63
Ardell Sykes___________ 9/3/63 Frank Hartley__________ 9/3/63
Otis Rawls_____________ 9/7/63 Peter Casey____________ 9/3/63
Hanzel Baker___________ 9/3/63 Grant Spence___________ 9/3/63
Melvin Outler___________ 9/3/63 James W. Brown________ 9/3/63
John Cummings-------- 9/3/63 Alexander Mills--------- 9/3/63
John Gordon, Jr-------- 9/3/63 Frank Dabroski_________ 9/3/63
APPENDIX D
Major Lee Garret Raul Martinez Elias George Schwartz
Jose Santiesteban Rafael Freyre Walter Collier
Manuel Casallasz Robert W. Foote F. P. Enriquez
Columbus Building and Construction Trades Council , AFL-CIO
and The Kroger Co.'
Local Union No. 683 , International Brotherhood of Electrical
Workers, AFL-CIO and The Kroger Co.
Local Union #98, Sheet Metal Workers International Associa-
tion , AFL-CIO and The Kroger Co.
Local Union #200, United Brotherhood of Carpenters and Join-
ers of America , AFL-CIO and The Kroger Co.
Local #423, International Hod Carriers ', Building and Common
Laborers ' Union of America , AFL-CIO and The Kroger Co.
Cases Nos. 9-CC-331-1, 9-CC-331-2, 9-CC-331-3, 9-CC-331-4,
and 9-00-331-5. November 30, 194
DECISION AND ORDER
On February 27, 1964, Trial Examiner Samuel Ross issued his
Decision in the above-entitled proceeding, finding that Respondents
' Herein called Kroger.
149 NLRB No. 117.