Baldwin County Electric Membership Corp.

National Labor Relations Board - Board Decisions

Jan 29, 1964

145 N.L.R.B. 1316 (N.L.R.B. 1964)

1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, Seventh
Floor, Falls Building , 22 North Front Street, Memphis, Tennessee , Telephone
No. 527-5451 , if they have any question concerning this notice or if they have
information that its provisions are being violated.
Baldwin County Electric Membership Corporation and Inter-
national Brotherhood of Electrical Workers, Local No. 505,
AFL-CIO. Case No. 15-CA-2208. January 29, 1964
DECISION AND ORDER
On July 12, 1963, Trial Examiner C. W. Whittemore issued his
Intermediate Report 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 certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Fanning and Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the Respondent's exceptions and brief, and the en-
tire record in this case, and finds merit in some of the exceptions of
the Respondent.' Accordingly, the Board adopts the findings, con-
clusions, and recommendations of the Trial Examiner only to the
extent consistent with this Decision and Order.
The facts, as found by the Trial Examiner, are set forth in the Inter-
mediate Report. In brief, the Union was certified as representative
of the Respondent's employees on May 24, 1961, and thereafter en-
tered into a 1-year contract with the Respondent, effective from Octo-
ber 1, 1961, to September 30, 1962. Negotiations for a new contract
began in early September 1962 and there were a number of bargaining
sessions . On November 8, 1962, 12 of Respondent's 17 employees went
on strike. On the day of the strike and on the following day, officials
of the Respondent visited employee Wiggins, who had not participated
1 The Respondent 's exceptions to the Intermediate Report and supporting brief are in
large measure directed to the credibility resolutions of the Trial Examiner . The Board has
held that it will not overrule the Trial Examiner 's credibility resolutions unless a clear
preponderance of all the relevant evidence establishes that these resolutions were incorrect.
Upon the entire record, we find that such conclusion is not warranted here. Standard
Dry Well Products , 91 NLRB 544 , enfd 188 F . 2d 362 (C.A. 3)
145 NLRB No. 125.
BALDWIN COUNTY ELECTRIC MEMBERSHIP CORP . 1317
in the picketing, and solicited his return to work. On November 13,
the Respondent discharged a number of employees who were on strike.
A final bargaining session between the parties took place on Decem-
ber 3, at which time the Union asked whether the strikers could go
back to work under the conditions then prevailing at the Respond-
ent's operation. The Respondent refused, saying that they had all
been replaced. The picketing ceased on December 4, 1962.
1. The Trial Examiner found, and we agree, that the Respondent,
by certain remarks, detailed in full in the Intermediate Report, made
to employees between July 1962 and November 8, 1962, threatening
employees with reprisals if they joined the Union, promising benefits
to employees if they refrained from joining the Union, interrogating
employees about union activity, and seeking to induce an employee to
engage in surveillance of a union meeting, violated Section 8 (a) (1)
of the Act. We also agree with the Trial Examiner that the Respond-
ent further violated Section 8(a) (1) by soliciting employee Wiggins,
one of the strikers, to return to work by means of threats of reprisal
and promises of benefit.
2. The Trial Examiner also found that the Respondent refused to
bargain in good faith with the Union in violation of Section 8 (a) (5)
of the Act. He based this conclusion on various statements made by
the Respondent to employees and found by him to be violative of Sec-
tion 8 (a) (1) which indicated that the Respondent did not intend to en-
ter into any collective-bargaining agreement with the Union. We do
not agree. In reaching this conclusion, we rely on the fact that, apart
from these statements, all of which took place away from the bargain-
ing table, there was no substantial evidence that the Respondent failed
to bargain in good faith with the Union. In this connection, the record
Shows that after the expiration of the prior contract, the Respondent
and the Union by two bilateral agreements, extended their contract
for short periods in an effort to reach a new agreement. Bargaining
sessions had been held throughout September, October, and Novem-
ber, and there is no evidence in the record that the Respondent failed
to meet and bargain with the Union at all times. Nor is it disputed
that during negotiations the Respondent made several bargaining con-
cessions. Indeed, according to the uncontradicted testimony of the
Union's representative, the evening before the strike on November 8,
the negotiating parties had reached an understanding as to contract
terms, which was thereafter submitted to, and rejected by, the union
membership.2 Further, during the strike, the Respondent and the
Union met on December 3 in the presence of officials of the Federal
Mediation and Conciliation Service in an effort to reach an agreement.
'Although the record is not wholly clear as to this point, it appears that, in the pre-
liminary stages of negotiations, the Respondent offered a 2-percent wage increase and the
Union sought a 2Y2-percent wage increase and that after the strike the Union had shifted
its bargaining position to the extent of seeking two successive 21/5-percent increases.
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although under some circumstances an employer 's statements away
from the conference room may be utilized to explain otherwise ambig-
uous conduct at the bargaining table, this is not such a case. Here
the Respondent 's bargaining conduct does not appear to have been
ambiguous in any way . As the record in our view establishes clearly
the Respondent 's good-faith bargaining at the bargaining table, we
find no basis for concluding on the strength alone of the Respondent's
statements away from the bargaining table that its otherwise lawful
bargaining conduct was converted into a violation of Section 8(a) (5).
As we have found, in disagreement with the Trial Examiner, that
the Respondent did not violate Section 8 (a) (5) by refusing to bargain
in good faith with the Union , we disagree with his further finding
that the Respondent 's strike, commencing on November 8, was pre-
Icipitated by the Respondent 's unlawful refusal to bargain and was
therefore an unfair labor practice strike from its inception . We also
do not agree with the Trial Examiner that the Respondent provoked
the strike through the above-found violations of Section 8 (a) (1)
of the Act . The record establishes , and we find , that the strike grew
out of the Union 's wage increase and other demands, and was clearly
an economic strike at its inception .' Further, as the record contains
no evidence that the strikers knew of the solicitation of Wiggins or
continued the strike on that account , we do not find that the Respond-
ent's conduct in unlawfully soliciting employee Wiggins to return to
work on November 8 and 9 converted the strike into an unfair labor
practice strike.
3. We find, in agreement with the Trial Examiner, that by dis-
charging certain of its employees on November 13 because they had
gone out on strike, the Respondent violated Section 8 ( a.) (3) and (1)
of the Act . We also find that these unfair labor practices by the
Respondent operated to aggravate and prolong the strike and there-
fore that the Union 's strike, although economic at its inception, was
converted into an unfair labor practice strike on November 13, 1962.
It follows that all strikers discharged on November 13, who had not
been replaced prior to that date, were entitled to reinstatement upon
their unconditional application therefor . We find that such un-
conditional application was made on December 3 , 1962, when the
Union asked the Respondent whether the strikers could go back to
work under the conditions then prevailing at the Respondent 's opera-
tion. As the Respondent failed to reinstate any of the strikers on
that date , including those who had not been replaced , we find that
by such conduct the Respondent further violated Section 8 (a) (3)
and (1).
3 In this connection , we deem significant the credited testimony of striker Lewis that he
told Assistant Manager Stevens just before the strike that the employees were going on
strike "for more money."
BALDWIN COUNTY ELECTRIC MEMBERSHIP CORP.
THE REMEDY
1319
Having found that the Respondent has violated the Act, we shall
order that it cease and desist therefrom and take certain affirmative
action in order to effectuate the policies of the Act.
We have found that the strike, which began as an economic strike
on November 8, was converted into an unfair labor practice strike on
November 13. We have also found that the Respondent unlawfully
discharged certain of its employees on November 13 for engaging in
a strike and that on December 3 the Union made an unconditional
application for the reinstatement of those employees who had been
unlawfully discharged. The Trial Examiner recommended that the
Respondent reinstate 12 strikers who he found had been unlawfully
discharged on November 13.4 However, as the record shows that four
of the strikers had been lawfully replaced prior to November 13,5 we
shall order that the eight employees who went on strike on No-
vember 8, and who were not replaced prior to November 13, when
they were unlawfully discharged by the Respondent, be offered im-
mediate and full reinstatement to their former or substantially equiv-
alent positions, dismissing, if necessary, any employees hired since
November 13 to replace them. If, after such dismissal, there are not
enough positions remaining for all these employees, the available posi-
tions shall be distributed among them, without discrimination because
of their union membership, activity, or participation in the strike.
Those strikers for whom no employment is immediately available
after such distribution shall be placed upon a preferential hiring list,
and shall thereafter, in accordance with such list, be offered rein-
statement as positions become available, and before other persons are
hired for such work.
The Trial Examiner also recommended that these discriminatees be
awarded backpay from the date of their discharge on November 13
until the date of their reinstatement. However, under existing Board
precedent, employees are not entitled to backpay while on strike.'
We shall, therefore, order the Respondent to reimburse these em-
ployees for any loss of pay they may have suffered by reason of the
Respondent's discrimination against them, by payment to each of
them of a sum of money equal to the amount which he normally would
have earned as wages during the period from December 3, the date
of the Respondent's refusal to reinstate the strikers upon their un-
conditional application for reinstatement, to the date of the Respond-
d The Trial Examiner did not order the reinstatement of Perkins since Perkins had been
reinstated prior to the hearing.
5 These employees are Perkins, Brown, Wiggins , and Johnson
6 Sea-Way Distributing, Inc., 143 NLRB 460. Member Brown, however, would affirm the
Trial Examiner ' s award of backpay from the date of discharge for the reasons stated in his
dissenting opinion in the Sea-Way case.
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent's offer of reinstatement, or placement on a preferential hiring list,
,as the case may be, in the manner hereinbefore described, less his net
earnings during said periods. Such loss of pay shall be computed on
the basis of separate calendar quarters, in accordance with the policy
enunciated in the Woolworth, case,' and shall include interest at the
rate of 6 percent per annum computed in the manner set forth in
Isis Plumbing ct Heating Co., 138 NLRB 716.
As we have found, in disagreement with the Trial Examiner, that
Respondent did not violate Section 8 (a) (5), we shall modify the
Recommended Order accordingly.
ORDER 11
The Board adopts as its Order the Recommended Order of the
Trial Examiner, with the following modifications:
(1) Section 1(a) of the Order shall be deleted, and the remaining
paragraphs shall be renumbered accordingly.
(2) Section 2(a) of the Order shall be deleted and the remaining
paragraphs shall be renumbered accordingly.
(3) Section 2(b) of the Order shall be modified to read as follows:
Offer immediate and full reinstatement to employees S. C.
Lewis, Dwight Vaughn, W. R. Harrison, D. O. Beech, A. O.
Mitchell, H. C. Boone, Clayton Harville, and Tommie Cain to
their former or substantially equivalent positions without preju-
dice to their seniority or other rights and privileges, and make
them whole for any loss of pay they may have suffered because
of the discrimination against them, in the manner set forth in the
section of the Intermediate Report entitled "'The Remedy" as
modified by this Decision and Order.
(4) The fourth full paragraph of the notice ("WE WILL, upon re-
quest . . .") shall be deleted.
(5) The last paragraph of the notice appended to the Intermediate
Report shall be modified to read as follows :
WE WILL offer immediate and full reinstatement to employees
:S. C. Lewis, Dwight Vaughn, W. R. Harrison, D. O. Beech, A. O.
Mitchell, H. C. Boone, Clayton Harville, and Tommie Cain to
their former or substantially equivalent positions, without preju-
dice to their seniority or other rights and privileges, and make
them whole for any loss of pay they may have suffered by reason
of the discrimination against them.
7 F. W. Woolworth Company, 90 NLRB 289
8 The Recommended Order in the Trial Examiner's Intermediate Report is hereby amended
,by substituting for the first paragraph therein the following paragraph:
Upon the entire record in this case, and pursuant to section 10(c) of the National
Labor Relations Act, as amended, the National Labor Relations Board hereby orders
that Respondent, its officers, agents, successors, and assigns , shall:
BALDWIN COUNTY ELECTRIC MEMBERSHIP CORP. 1321
IT IS FURTEIER ORDERED that the complaint herein, insofar as it al-
leges violations of the Act not found in this Decision and Order, be,
and it hereby is, dismissed.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed on December 6, 1962, by the above-named labor organization,
the General Counsel of the National Labor Relations Board issued his complaint
and notice of hearing on April 4, 1963. The Respondent filed its answer on
April 17, 1963. The complaint alleges and the answer denies that the Respondent
has engaged in unfair labor practices in violation of Section 8(a) (1), (3), and (5)
of the National Labor Relations Act, as amended. Pursuant to notice a hearing
was held in Mobile, Alabama, on June 3 and 4, 1963, before Trial Examiner C. W.
Whittemore.
At the hearing all parties were represented and were afforded full opportunity
to present evidence pertinent to the issues , to argue orally , and to file briefs . Briefs
have been received from General Counsel and the Respondent.
Upon the record thus made and from his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Baldwin County Electric Membership Corporation is an Alabama corporation
engaged in the production and distribution of electrical power in Alabama.
During the year 1962 the Respondent rendered services valued at more than
$50,000 to customers engaged in interstate commerce , and during the same period
purchased materials valued at more than $50,000 which were shipped to it directly
from points outside the State. of Alabama.
The complaint alleges, the amended answer admits, and it is here found that the
Respondent is engaged in commerce within the meaning of the Act.
II. THE CHARGING UNION
International Brotherhood of Electrical Workers, Local No. 505, AFL-CIO, is a
labor organization admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Setting and issues
All of the issues posed in this case arose in the fall of 1962, when the Charging
Union, as the conceded bargaining representative of the Respondent's employees
in an appropriate unit, was attempting to negotiate a new contract , the first such
agreement having expired on September 30, 1962.
It is General Counsel's contention, in substance, that by various means and
methods agents of the Respondent strove to deprive its employees of rights
guaranteed by the Act. It is claimed that: (1) employees were threatened with-
economic reprisals to discourage union membership and activity ; (2) by unlawful
conduct the Respondent caused employees to strike and then unlawfully discharged
them; and (3) by discharging all striking employees the Respondent failed and,
refused to bargain collectively with the Union.
B. Events before the strike of November 8, 1962
The preponderance of credible evidence supports the following findings as to,
certain pertinent conduct and remarks of management representatives occurring
before a strike which began on November 8, 1962. Some of such conduct and re-
marks are not only violative of Section 8(a)(1) of the Act but also plainly and
accurately forecast unlawful action which was taken by the Respondent immediately
after the strike 's beginning.'
(1) Sometime in March 1962, about 2 months after he began work for the
Respondent , employee George Johnson was approached by Manager A. M. Redd who
asked him if he had yet joined the Union. Redd added that he would not advise
I Section 10(b) of the Act prevents finding as unlawful conduct occurring before June 6,.
1962. An expression of intent , or forecast , is plainly relevant to later events,
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him to join , since his employment would be temporary for the first 6 months, and he
would probably be wasting his money . He further told the employee that there
"might be a mess like they had at Woodhaven," which Johnson understood to refer
to Woodhaven Dairy, nearby, where employees had gone on strike and had been
replaced. Later, in July, after Johnson had been transferred to another station of
the Company, Redd again asked him if he had joined. Johnson replied that he
had not. Redd declared, "Well , you know you are still temporary and you can
be replaced. I've warned you about that thing. You're down here now where
you can think for yourself. You can do what you want to about it." 2
(2) After a safety meeting held in February 1962, Manager Redd told the State
safety engineer , in the hearing of employee W. A. Brown, that although a union then
represented the employees, "after the first of the year we won't have one anymore." 3
In August, as a storm cloud drew near, Redd remarked to Brown: "Well, looks like
we might have some trouble out of that cloud. I hope you boys haven't got a meet-
ing tonight ." Brown replied that the only meeting he had that night was with his bed,
he was tired. Redd then commented, "That's good, that's good. You got no busi-
ness going to those meetings anyway. You ain't got no business letting those people
across the water handle your business and your money. You got no business with
the union anyway." 4
(3) In July or August, when Redd was apparently trying to have employees
Tommie Cain and Leonard Vaughn start work early one morning, Cain remarked
that according to the existing contract they were not supposed to start until 8 o'clock.
Redd said, according to the credible testimony of Cain, corroborated by Vaughn,
"That contract, I am going to ram it down somebody's throat; by the end of the
year there won't be no union. Won't be a union man here." 5
(4) In August, during a conversation regarding vacations , Redd remarked to em-
ployee Perkins, according to the latter's credible testimony, that he did not "know
who was his friends." Perkins asserted that he was a friend. Redd replied, "No,
there's a fence between us now. You all are union . You all are on another side of
2 The findings as to Redd 's remarks to Johnson , both in July and shortly after his hire,
are based upon the credible testimony of the employee , now serving in the Armed Forces
Redd at first flatly denied ever mentioning the Union to the employee After much pressing
by Respondent ' s counsel to repeat detailed denials, Redd finally added, "Johnson was a
good employee. I don't remember making any of these statements " l;ecause of the
6-month bar the March incident , of course , is not found as an unfair labor practice
3The finding is relevant as an accurate forecast of events later described, but because of
the 6-month bar is not found to have been a violation of the Act.
4 The quotations are from Brown's credible testimony Redd 's denials are not credited.
The Trial Examiner ' s inability to place reliance upon Redd's testimony is based , in part,
upon his observation of the manager while in the small courtroom listening to one after
another of his former employees testify as to remarks made by him Redd displayed
neither concern nor surprise . His demeanor was attentive but unperturbed as his former
employees , facing huh , quoted his several antiunion remarks and threats It was not a
situation where , as a result of being made aware of such possible accusations during the
investigation period, Redd might have fortified himself by effort of will against the actual
testimony As the record shows, General Counsel was promptly discouraged in conducting
a full investigation shortly after the charge was filed . It is the testimony of C G. Lowe, a
professional "industrial relations consultant to management" retained by the Respondent,
when he was approached by a Board representative on February 4, 1963, that: "When lie
first came in he had said-I don ' t recall the exact words , but the gist of it was, what kind
of arrangements could he make to talk with Mr. Redd , and I told him that I didn't see
that there was any point in talking to Mr Redd . . . . " In passing , the Trial Examiner
considers wholly uncalled for the accusation of Counsel Carter , of the Respondent, in his
brief, reflecting upon the character of Board agents and their conduct of the case. He
states: "The only alternative left was to advance a mass of manufactured 8(a) (1) mate-
rial, combined with a fabricated version of discharge statements to strikers . . . Be-
cause it was only after the Board found that the bargaining had been properly conducted
that it then became necessary to adopt a different theory." Such accusations ill become
one who , himself , for many years was a trial attorney for the National Labor Relations
Board
6 For reasons described in the footnote above the Trial Examiner does not credit Redd's
denial of these remarks.
BALDWIN COUNTY ELECTRIC MEMBERSHIP CORP. 1323
the fence. You could be my friend. When you have a problem come to me with
it, don't go to Tom Druey." Druey was the union representative.6
(5) In March or April, while in Redd's office, employee George Wiggins was told
by the manager, "Well, the Union got a contract and they won the first round, but
I haven't given up. I'll fight the Union if I have to fight it until I die." About
2 weeks before the beginning of a strike in early November Redd asked Wiggins to
"see the boys and talk to them because if they went on strike he had men to take
their place and if they struck they could strike on their own." (The quotations are
from Wiggins' credible testimony. Redd's denials are not credited.)
(6) Negotiations for a new contract began in early September 1962. A number
of such meetings were held between them and November 8, when the strike began.
Shortly after negotiations began Service Supervisor Harry Hampton, admittedly a
representative of management, asked employee Wiggins to attend the union meetings
to "find out what was going on."
(7) Not long before the strike H. C. Boone, a lineman of long service with the
Respondent, was approached at lunch by Hampton, and was asked how the Union
"was getting along." Boone told him "Fine." Hampton then declared that he would
hate to lose him and others, and added, "I told you here a while back that the
Union wasn't any good and it wouldn't help you any." He further said: "Rather
than see you fired I can promote you to foreman." Boone asked if there was any
more money involved. Hampton said "No." Boone, who had previously served
for a time as foreman, then said that he "would stay with the boys in the union." 7
(8) On or about October 15 Assistant Manager N. G. Stevens asked S. C. Lewis,
also an employee of long service , whether or not the employees were going on strike.
Lewis evaded the question. Stevens declared that "we know you're going on strike."
The employee then said, "Well, for more money." Stevens declared, "Well, I'm
afraid you're not going to get it. We have the Irby Contractors in here to start with
and we expect you all to give us trouble, and we expect to have line trouble and we
are going to repair them." Stevens further told Lewis that due to the fact that the
contract had expired the Company had another crew ready the minute they walked
out on strike. He said the employees would promptly be fired and replaced and
they would lose their jobs, which he would hate to see happen .8
(9) A day or two before the strike, while riding with Stevens to a job, employee
Wiggins asked the assistant manager if he thought they would get a contract.
Stevens replied in the negative, and said that "they had Irby Construction" and
were "just waiting." He declared that there would be no contract and warned that
if the men struck they could just keep on striking." 9
C. The strike and mass discharge
As had been accurately forecast by Redd and Stevens to various employees,
negotiations failed to bring agreement and on November 8. 12 of the 17 employees
then on the payroll went on strike. These 12 were:
S. C. Lewis Donald Beech Clayton Harville
George Wiggins William A. Brown E. W. Perkins
Dwight Vaughn Alex O. Mitchell George R Johnson
William R. Harrison H. C. Boone Tommie Cain
Most, if not all, of the above-named except Wiggins promptly began picketing.
On Thursday, the day the strike began, Wiggins was visited at his home by Jim
Swoboda, a trustee of the Respondent corporation and, as he said, "kind of like a
9 Redd admitted having the conversation about vacations, but denied the other remarks
attributed to him. Particularly in the case of Perkins does there appear to be no conceiv-
able reason for "manufactured 8(1) material ," as contended by counsel for the Respondent.
Perkins is the one employee to be reinstated, shortly before the hearing opened, of the
entire crew which was discharged in early November 1962. Since he has been returned to
his job, it is hardly likely that he would lie about a matter occurring nearly a year ago."
'Hampton ' s denials of the remarks and inquiries attributed to him by Wiggins and
Boone are not credited.
8 Stevens admitted talking to Lewis on this occasion , but said that the employee opened
the subject by asking what he thought would happen . When asked by his counsel if any-
thing had been said about the construction company, he at first replied, "I don't know,
sir," and then added , when pressed for a negative answer, "I say I don 't think so " The
findings are based upon the employee 's credible testimony. Stevens' warnings as to what
would happen in the event of the strike were fully carried out, as found later in the
Intermediate Report.
8 Stevens admitted the occasion , but denied discussing union affairs . His denials are
not credited.
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
director of a corporation ." According to Wiggins ' credible testimony , corroborated
by that of his wife, who was present, Swoboda opened his remarks by saying,
"George, I want you to go back to work. Forget about this humbug. You've got a
good chance of going up in the company." Wiggins declared that he needed time
to think it over-to "see which is right or wrong." The trustee urged Wiggins:
"We don't want to lose you. You are a good family man. We want to keep you
if we can, and I hope you make the right decision." He then warned Wiggins
that if he ever repeated his remarks their friendship would cease.
The next morning, Friday, Redd, Hampton, and Stevens all appeared at the
Wiggins home. Redd told him to come back to work the following Monday, promis-
ing him that he would lose no time for the days off. He assured the employee that
he was the only one he was "coming to see." Wiggins told the management officials
that he was still undecided, and would need more time to think it over. That after-
noon Redd returned, this time alone, and asked him to "pick up a truck ." Wiggins
declined, adding that he did not think it was right to "push me between the men."
Redd repeated that he was the only one he was going to see, and that he was not
going to take any of the others back.
About 11 o'clock that same Friday night, Redd called Wiggins by telephone, and
urged him to meet a crew and go to work at a substation which was "out." Wiggins
again declined , and has not been reinstated.io
10 The findings as to the efforts of the four management representatives to persuade
Wiggins to cease participating in the strike are based upon the credible testimony of the
employee , his wife, and a near neighbor In the first place, the four officials made it
clear in their own testimony that they held Wiggins in high esteem and both needed and
wanted him back on the job It is hardly reasonable that one held in so high regard
should falsify his account and persuade both his wife and a neighbor to corroborate him.
That all four visited the Wiggins home is admitted by them. While the testimony of
these four is far from consistent, it appears that the Respondent would have it believed
that they only visited Wiggins because Swoboda received telephonic word from an insur-
ance agent , one Huggins , that Wiggins wanted to go back to work the following Tuesday
and wanted to talk to some company representatives. Huggins himself was a most un-
certain and unconvincing witness He at first claimed that lie had gone to the Wiggins
home "the first or second day" after the strike began on Thursday, which would ha%e
placed it on Friday or Saturday. He explained his visit as having been made pursuant to
a previously made arrangement with the family, on insurance business Mrs Wiggins
testified that she had made the appointment with Huggins, but that it had been made for,
and was kept, on Saturday, because her husband was "off every Saturday afternoon."
And on cross-examination Huggins admitted his lack of memory by stating that his visit
was between the time the strike began, on Thursday, and the following Tuesday Finally
he admitted that it could have been on Saturday, which is consistent with Mrs Wiggins'
testimony. Further discredit upon the claim that Swoboda only went to the Wiggins
home because Huggins suggested it is cast by the facts that: (1) as a witness Swoboda
at first replied flatly "I did not," when asked by his own counsel if lie had made the visit
"pursuant to that telephone conversation with Mr. Huggins" ; and (2) a letter dated
February 6, 1963, submitted to Board agents by Lowe, previously identified as in charge
of management's relations with the Union , which states , in part:
Striker George Wiggins sent word through his brother-in-law that lie wanted to
talk with company representatives about returning to work. This occurred on
November 10 When he was contacted on November 12 or 13, he indicated he had
sent such word and was told his job was still available . However, lie never did re-
port for work and was, accoidingly, replaced as of November 10 when be failed to
appear the next week
That Lowe ' s explanation was either based upon misinformation received by him , imagina-
tion, or intent to mislead appears clear from the letter itself According to company
records, in evidence , Wiggins was replaced on November 10, which was 2 or 3 days before
he was told, according to Lowe's letter, on November 12 or 13 that his "job was still
available " Furthermore, Manager Redd added discredit upon Lowe, who claimed that he
had received from the manager himself the information that on "November 12" Wiggins
had sent in word through his brother-in-law. As a witness for the Respondent Redd flatly
denied that "striker Wiggins" sent word "through his brother-in-law." He as flatly
denied that anyone else besides Swoboda sent him to see Wiggins . And Huggins is not
related in any way to Wiggins. In view of the obvious contradictions in the testimony of
the Respondent's witnesses as to how they happened to visit Wiggins, or as to when the
visits occurred, the Trial Examiner can place no reliance upon the versions given by the
four management representatives as to what they said when at the Wiggins home --versions,
which are, of themselves , inconsistent in a number of respects.
BALDWIN COUNTY ELECTRIC MEMBERSHIP CORP. 1325
Unsuccessful in persuading Wiggins to abandon his fellow workers , Redd , Stevens,
.and Hampton proceeded to carry out Redd 's announcement to Wiggins that none
of the other strikers would be "taken back." On Tuesday, November 13, the next
working day after Redd's visit to Wiggins (Monday being a holiday), Redd himself
gave final paychecks to striking employees Brown, Mitchell, Harrison, Vaughn,
and Cain, telling them that they were "fired for walking out on him." Hampton
went to the Bay Minette substation where employees Perkins and Harville were
picketing. He gave each of the two his check, and told them it would be their last
because they were fired. He said that he had tried to talk Redd "out" of such
action, but could not. Stevens came to a company warehouse where employees
Beech and Lewis were picketing. As he gave them their checks he announced
that they were "terminated" and would "never work here any more." Johnson's
final paycheck was mailed to him by Redd, the employee being off the picket line
when Redd delivered the others. Being informed by the others of their firing, John-
son made no effort to seek reinstatement . (Subpenaed to attend the hearing,
Johnsonw as then serving in the Armed Forces.) Although employee Boone went on
strike with the others involved herein, as a witness he was not asked about his dis-
charge by General Counsel, apparently an oversight. Because Redd told Wiggins
immediately after the strike began that he would "take back" no other employee but
him, the Trial Examiner infers and finds that Boone was effectively discharged, as
were the others, on November 13.
As to Wiggins, it has been noted that he declined Redd's offer to be the only em-
ployee permitted to return to work. In effect, Wiggins refused to become a party
to the unlawful discrimination proposed by Redd, even though he would have been
the beneficiary of such discrimination. The Trial Examiner concludes that Wiggins
was, on November 13, constructively discharged by the Respondent, and that such
discharge, like the others of that date, was motivated by an unlawful purpose.11
In short, the Trial Examiner concludes and finds that all 12 employees listed above
were discharged on November 13, 1962, because they were engaging in concerted
protected activities and to discourage union activity, thereby interfering with, re-
straining, and coercing employees in the exercise of rights guaranteed by Section 7
of the Act.
D. Subsequent relevant events
The employees, despite having been told they were discharged, continued to picket
at various company locations.
A final meeting between company and union representatives was held on Decem-
ber 3. Union Representative Druey at first asked for a small economic increase as
a condition of removing the pickets. Lowe, the Respondent's representative, re-
fused to grant the proposal. Finally the union representative abandoned all demands
and, according to his credible testimony, asked Lowe: "Then if these proposals are
not accepted, then how about our people going back to work under the conditions
which you are now paying?" Lowe declared that there were not jobs available, that
all strikers had been replaced. Three days later the Union filed its charge, and it
appears that there have been no later meetings.12
While the document itself is not entirely clear on its face, a letter dated February 6
from Lowe to a Board agent accompanying a full listing of strikers and their replace-
ments shows that, whatever Lowe told Druey on December 3 to the effect that all
strikers had been replaced as of that date, in fact neither Vaughn nor Harville was
actually replaced until early January 1963.
n The Trial Examiner considers the circumstances here distinguishable from those exist-
ing in N .L.R.B v. New England Tank Industries , Inc. (302 F. 2d 273 (C.A. 1), enfg. 133
NLRB 175, cert denied 371 U.S. 875 ), heard by the same Trial Examiner, where in an
unlawful mass refusal to hire three applicants were actually offered jobs but declined to
accept when all others were refused hire . There, in effect , it was found by the Board
and the court that the three became unfair labor practice strikers , and the employer was
ordered to grant them immediate employment upon their unconditional offer to abandon
their strike. Here , as will be described hereinafter, all employees , including Wiggins, be-
came unfair labor practice strikers upon failing to work on November 8 The Trial
Examiner believes, and it will be recommended , that Wiggins, like the others , must be
made whole from the date of November 13, 1962, in order to effectuate the policies of
the Act.
12 The quotations are from and the findings are based upon Druey 's credible testimony,
corroborated in part by Lowe.
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. Conclusions
Findings in section III, B , above, fully support the conclusion that management,
as early as the spring of 1962, announced plainly to employees that any hope of a
continuing contractual relationship with the Union was futile. In March Redd
openly expressed his intention of maneuvering matters toward a strike and replace-
ment of strikers when he told Johnson that he would be wasting his money in joining
the Union and referred to the "Woodhaven" situation . He emphasized that intention
in midsummer , when he told employees Vaughn and Cain that he would "ram" the
contract down somebody 's throat, and that by the end of the year there would be no
union. Earlier he told Wiggins that although the Union had "won the first round"
by getting a contract , he would "fight" the Union until he died . After negotiations
had begun at the bargaining table, Webb's assistant , Stevens, told Wiggins that the
employees would not get a contract , and that the Company already had replace-
ments waiting to take their places as soon as they struck. Stevens announced simi-
lar plans for the loss of jobs to Lewis.
As to the strike , in his complaint General Counsel alleges that the Respondent
caused it by the conduct found above as having occurred before November 8,
"and/or" prolonged it by promising Wiggins benefits to abandon it and by discharg-
ing strikers after that date.
In his brief counsel seems to have abandoned his "and/or" position between two
stools, and now contends that it is his "theory " that by the conduct after November 8
the Respondent "converted the strike into an unfair labor practice strike."
The Trial Examiner considers it unnecessary to ponder overlong either on the
prolongation or conversion "theory."
Whatever negotiating motions were made at the bargaining table between the
expiration of the old contract and November 8, and despite General Counsel's
allegation that it was on November 9 and thereafter that the Respondent iefused to
bargain with the Union , the facts described herein , which were fully litigated , depict
a much simpler situation than General Counsel 's various "theories" involve. To the
Trial Examiner , from his review of the record and observation of the witnesses, it
appears most clear that from the very beginning of negotiations management had
not the slightest intention of reaching an agreement with the Union but that, on the
contrary, "somebody's" throat would be "rammed " with the contract , all would be
out of a job , and by the end of the year there would be no union in the plant. This
situation seems to be covered by the well-chosen words of the Fifth Circuit Court
of Appeals , in N.L R.B. v. Herman Sausage Company, Inc. (275 F. 2d 229) :
. .. bad faith is prohibited though done with sophistication and finesse. Con-
sequently , to sit at a bargaining table, or to sit almost forever, or to make con-
cessions here and there , could be the very means by which to conceal a purpose-
ful strategy to make bargaining futile or fail . Hence, we have said in more
colorful language it takes more than mere "surface bargaining " or "shadow
boxing to a draw" or "giving the Union a runaround while purporting to be
meeting with the Union for the purpose of collective bargaining."
Here, of course, the "purposeful strategy to make bargaining futile or fail" was not
concealed , but was openly expressed by Redd and others of management.
In short, the Trial Examiner concludes and finds that the Respondent has failed
and refused to bargain in good faith from September 30, 1962, the date of the previ-
ous contract 's expiration . It is further concluded and found that the strike of
November 8 was caused by the Respondent 's unfair labor practices , described hereto-
fore and including its refusal to bargain in good faith.
In summary , the Trial Examiner concludes and finds that by the conduct of
management agents described in section III, B , above, occurring within the 6-month
period before December 6, 1962, by the refusal to bargain in good faith with the
Union, conceded as having been the exclusive bargaining representative of all
employees in an appropriate unit, by promising Wiggins certain benefits to abandon
his participation in a strike caused by the unfair labor practices , and by discharging
the 12 employees named herein , the Respondent has interfered with , restrained, and
coerced employees in the exercise of rights guaranteed by Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent , set forth in section III, above , occurring in con-
nection with the operations of the Respondent 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 com-
merce and the free flow of commerce.
BALDWIN COUNTY ELECTRIC MEMBERSHIP CORP. 1327
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Brotherhood of Electrical Workers, Local No. 505, AFL-CIO,
is a labor organization within the meaning of Section 2(5) of the Act.
2. All linemen, groundmen, helpers, and leadermen employed by the Respondent
at its Robertsdale, Alabama, operation, excluding all office clerical employees, guards,
watchmen, professional employees, and supervisors as defined by the Act constitute
a unit appropriate for the purpose of collective bargaining within the meaning of
Section 9 (b) of the Act.
3. By virtue of Section 9(a) of the Act the above-named labor organization at
all times since May 1961 has been, and now is, the exclusive representative of all
employees in the said unit for the purpose of collective bargaining with respect to
rates of pay, wages, hours of employment, and other terms and conditions of
employment.
4. By refusing, since October 1, 1962, to bargain collectively in good faith with
the said labor organization as the exclusive representative of all employees in the
said appropriate unit, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5) of the Act.
5 By discriminating in regard to their tenure of employment against the 12
employees named herein, thereby discouraging membership in and activity on behalf
of the above-named labor organization, the Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(3) of the Act.
6. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the
Trial Examiner will recommend that it cease and desist therefrom and take certain
affirmative action to effectuate the policies of the Act.
It has been found that the Respondent unlawfully discharged the 12 employees
listed herein on November 13, 1962. As noted, one employee, Perkins, has been
reemployed. It will be recommended that the Respondent offer all said discharged
employees, except Perkins, immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to their seniority and other
rights and privileges, and make them, including Perkins, whole for any loss of
earnings they may have suffered by reason of the discrimination against them, by
payment to each of them of a sum of money equal to that he would have earned
as wages, absent the discrimination, from November 13, 1962, to the date of offer
of reinstatement, in the manner prescribed by the Board in F. W. Woolworth Com-
pany, 90 NLRB 289. The backpay obligations of the Respondent shall also include
the payment of interest at the rate of 6 percent to be computed in the manner set
forth in Isis Plumbing & Heating Co., Inc , 138 NLRB 716.
It will also be recommended that the Respondent, upon request, bargain collec-
tively with the Union in good faith and, if any understanding is reached, embody
such understanding in a signed agreement.
Finally, it will be recommended, in view of the extended and continued nature
of the Respondent's unfair labor practice, that it cease and desist from in any
manner infringing upon the rights of employees guaranteed by Section 7 of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record, the Trial Examiner recommends that Baldwin County Electric
Membership Corporation, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith with International Brotherhood
of Electrical Workers, Local No. 505, AFL-CIO, as the exclusive representative of
all its employees in the following appropriate unit:
All linemen, groundmen, helpers, and leadermen employed at its Robertsdale,
Alabama, operation, excluding all office clerical employees, guards, watchmen,
professional employees, and supervisors as defined by the Act.
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Interrogating employees concerning their union membership, activities, and
-sympathies in a manner violative of Section 8(a)(1) of the Act; threatening em-
ployees with loss of employment if they participate in union activities; and promising
promotions or other benefits to discourage employees in the participation of such
activities.
(c) Discouraging membership in and activity on behalf of the above-named or
any other labor organization by discharging or refusing to reinstate any of its
employees because of their union membership or activities, or in any other manner
discriminating in regard to hire or tenure of employment or any term or condition
of employment.
(d) In any other manner interfering with, restraining, or coercing employees in
the exercise of the right to self-organization, to form labor organizations, to join
.or assist the above-named or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or protection,
,or to refrain from any or all such activities.
2. Take the following affirmative action to effectuate the policies of the Act:
(a) Upon request, bargain collectively in good faith with the above-named labor
,organization as the exclusive bargaining representative of the employees in the above-
described appropriate unit, and embody any understanding reached in a signed
agreement.
(b) Offer immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority and other rights and privi-
leges, to the employees listed herein as having been discriminatorily discharged
(except Perkins) and make them (including Perkins) whole for any loss of pay
they may have suffered because of the Respondent's discrimination against them in
the manner set forth in the section above entitled "The Remedy."
(c) Preserve and, upon request, make available to the National Labor Relations
Board or its agents, for examination and copying, all payroll records and other
records necessary for the determination of the amounts of backpay and interest due
and the right of reinstatement under the terms of this Recommended Order.
(d) Post at its Robertsdale, Alabama, operation copies of the attached notice
marked "Appendix." 13 Copies of said notice, to be furnished by the Regional
Director for the Fifteenth Region, shall, after being duly signed by the Respondent's
representative, be posted by it immediately upon receipt thereof and maintained by
it for 60 consecutive days thereafter in conspicuous places, including all substations
and places where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director for the Fifteenth Region, in writing, within 20
days from the date of the receipt of this Intermediate Report and Recommended
Order, what steps the Respondent has taken to comply herewith.14
"In the event that this Recommended Order be 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."
14 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read : "Notify the Regional Director for the Twenty-third Region, in
writing, within 10 days from the date of this Order, what steps the Respondent has taken
to comply herewith."
APPENDIX
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, as amended, we hereby notify you that:
WE WILL NOT discourage membership in and activity on behalf of Inter-
national Brotherhood of Electrical Workers, Local No. 505, AFL-CIO, or in
any other labor organization , by discharging, laying off , or refusing to reinstate
any of our employees because of their union membership and activities, or in
any other manner discriminate in regard to their hire or tenure of employment,
,or any term or condition of employment.
SOUTJIWIRE COMPANY 1329
WE WILL NOT interrogate employees concerning their union membership,
activities, and sympathies in a manner violative of Section 8(a) (1) of the Act;
nor threaten loss of employment if they participate in union activities; nor
promise promotions and other benefits to discourage participation in such
activities.
WE WILL NOT in any other manner interfere with, restrain, or coerce em-
ployees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist the above-named or any other labor organization, to
bargain collectively through representatives of their own choosing, and to en-
gage 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, upon request, bargain collectively in good faith with the above-
named labor organization as the exclusive representative of the employees in
the appropriate unit described below, and embody any understanding reached
in a signed agreement:
All linemen, groundmen, helpers, and leadermen employed at our Roberts-
dale, Alabama, operation, excluding all office clerical employees, guards,
watchmen, professional employees, and supervisors as defined by the Act.
WE WILL offer immediate and full reinstatement to:
S. C. Lewis D. O. Beech Clayton Harville
George Wiggins W. A. Brown G. R. Johnson
Dwight Vaughn A. O. Mitchell Tommie Cain
W. R. Harrison H. C. Boone
to their former or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges, and make them and E. W. Perkins whole
for any loss of pay they may have suffered by reason of the discrimination
against them.
BALDWIN COUNTY ELECTRIC MEMBERSHIP CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify any of the above-named who may be serving in the Armed
Forces of the United States of their right to full reinstatement upon application after
discharge from the Armed Forces, in accordance with the Selective Service Act and
the Universal Military Training Service Act of 1948, as amended.
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.
Anyone having any question concerning this notice or compliance with its provi-
sions may communicate directly with the Board's Regional Office, T6024 Federal
Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana, Telephone No.
529-2411.
Southwire Company and International Union of Electrical,
Radio & Machine Workers, AFL-CIO. Cases Nos. 10-CA-5142
and 10-CA-5159. January 29, 19641
DECISION AND ORDER
On September 12, 1963, Trial Examiner Arthur E. Reyman issued
his Trial Examiner's Decision in the above-entitled proceeding, find-
ing that the Respondent had engaged in and was engaging in certain
unfair labor practices and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in his attached
Decision. Thereafter, the Respondent and the General Counsel filed
exceptions to his Decision and supporting briefs.
145 NLRB No. 127.
734-070-64-vol. 145-85