Dazey Corp.

National Labor Relations Board - Board Decisions

Aug 4, 1953

106 N.L.R.B. 553 (N.L.R.B. 1953)

DAZEY CORPORATION
APPENDIX B
NOTICE
TO ALL MEMBERS OF CHEMICAL WORKERS' BASIC
UNION, LOCAL NO. 1744 AFFILIATED WITH THE
BROTHERHOOD OF PAINTERS, DECORATORS, AND
PAPERHANGERS OF AMERICA, A.F.L., AND TO ALL
EMPLOYEES OF NATIONAL LEAD COMPANY, TI-
TANIUM DIVISION
553
Pursuant to the recommendations of a Trial Examiner of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby
notify you that:
WE WILL NOT cause or attempt to cause National Lead Company, Titanium Division,
its officers , agents, successors , or assigns , to discharge or otherwise discriminate
against its employees in regard to their hire or tenure of employment , or any term or
condition of employment , to encourage membership in our labor organization in violation
of Section 8 (a) (3) of the Act.
WE WILL NOT in any like or related manner restrain or coerce employees of National
Lead Company, Titantium Division , its successors or assigns , in the exercise of the
rights guaranteed in Section 7 of the Act , except to the extent that such rights may be
affected by an agreement requiring membership in a labor organization as a condition of
employment , as authorized by Section 8 (a) (3) of the Act.
WE WILL make C. C. Wilson and S. J. Carter whole for any loss of pay they may have
suffered because of the discrimination against them
CHEMICAL WORKERS' BASIC UNION, LOCAL 1744, Affiliated
with the BROTHERHOOD OF PAINTERS, DECORATORS
AND PAPERHANGERS OF AMERICA, A.F.L.,
Labor Organization.
Dated ..... . By .
(Representative)
.... ....... .. .
(Title)
This notice must remain posted for 60 consecutive days from the date hereof , and must
not be altered , defaced , or covered by any other material
DAZEY CORPORATION and INTERNATIONAL ASSOCIATION
OF MACHINISTS, DISTRICT NO. 9, AFL. Case No. 14-CA-
884. August 4, 1953
DECISION AND ORDER
On April 23 , 1953, Trial Examiner Albert P. Wheatley is-
sued his Intermediate Report in the above - entitled proceeding,
finding that although the Respondent had violated Section 8 (a)
(1) of the Act , the record as a whole does not warrant the is-
suance of a remedial order . He also found that the Respondent
had not engaged in other unfair labor practices , as alleged
in the complaint , and recommended that the complaint be dis-
missed in its entirety , as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter , the General
106 NLRB No. 84.
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel filed exceptions to the Intermediate Report with a
supporting brief.
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 Intermediate Report, the exceptions and briefs,
and the entire record in the case, and hereby adopts the Trial
Examiner's findings, conclusions, and recommendations inso-
far as they are consistent with our decision herein.
The Trial Examiner found, and we agree, that the Donovans
acted in derogation of the authority of the exclusive bargain-
ing representative. We further find that the concerted activity
for which the Donovans were allegedly discharged was not
protected under the Act and provides no basis for an 8 (a) (3)
violation of the Act on the part of the Respondent.
The activity of a minority group of employees in an effort
to usurp the functions of the duly authorized bargaining agent
selected by all the employees has been held not to be protected
by the Act. i An application of this principle to the instant
proceeding demonstrates the validity of the finding and con-
clusion hereinabove noted with respect to the activity in
question. It is apparent from the evidence that the Donovans
sought to induce the Respondent to act unilaterally without
first consulting the bargaining representative in a matter
clearly covered by the existing bargaining agreement; 2 and
that the Donovans had refused either to deal with the UE, the
bargaining representative, or to utilize the grievance pro-
cedure provided in the bargaining agreement. s In so doing,
particularly where the demand upon the Respondent was ac-
companied by a strike threat (which was tantamount in its
effectiveness to an actual strike), the Donovans were clearly
and deliberatively engaged in activity having as its primary
objective the forcing of the Respondent to deal independently
with them to the detriment of the UE's statutory position as
exclusive bargaining representative.4
IN. L. R. B. v. Draper Corporation, 145 F. 2d 199 (C. A. 4).
2Article IV, sec. 16 of the contract with the UE sets up specific classifications and rates
for the projectile department including three classifications and rate ranges for the screw
machine section. Section 18 deals with employees who are transferred from one classifica-
tion to another. Section 19 provides that new classifications must be established by ne-
gotiation.
It does not appear affirmatively that either step would have been futile or without benefit
to the minority group headed by and including the Donovans.
4Cf. N. L. R. B. v. Nu-Car Carriers, Inc., 189 F. 2d 756 (C. A. 3) enforcing 88 NLRB 75,
where the Board held that the discharge of the spokesman of a minority group which was
dissatisfied with certain provisions in the contract dealing with the owner-operator system
of truck transportation, constituted a violation of the Act. The Board pointed out that the
dissidents attempted to induce their union tochangea working condition and that the discharge
was an interference with the efforts of the minority group to effectuate such change. That case
is clearly distinguishable from the instant case, where as noted above, the minority group
made no attempt to utilize the services of the bargaining representative or the grievance
procedure provided in the contract.
DAZEY CORPORATION 555
Furthermore, it is a violation of the essential principle of
collective bargaining and an infringement of the Act for an
employer to disregard the bargaining representative by ne-
gotiating with individual employees.5 Viewed in the light of
this principle, the illegality and resulting unprotected character
of the conduct described above is apparent when considered
in relation to its effect upon the Respondent who, if it had
yielded to the minority's request, would have committed a
violation of the Act. Thus, if the Respondent had taken any
action on the subject of job classification to the satisfaction
of the minority group, the Respondent would have laid itself
open to an 8 (a) (5) charge under the Act, which makes it the
duty of the Employer to bargain collectively with the chosen
representative of his employees. Moreover, if the Respondent
had ignored the UE as the employees' exclusive bargaining
representative, it would have encouraged the minority group
to abandon the UE and would have violated Section 8 (a) (1)
of the Act.6
The General Counsel contends, however, that the activity in
question was protected upon the ground that what the minority
group sought was not primarily a change in classification, but
an opportunity to utilize such change in order to leave the
bargaining unit represented by the UE. This, he urges, is a
matter outside the bargaining contract, and under Section
9 (a) 7 of the amended Act, the group had the right to take their
grievance directly to the employer.
We find no merit in this contention. Section 9 (a) gives the
right to individuals and minority groups to take certain
grievances directly to the employer independent of the recog-
nized bargaining representative. However, to invoke the pro-
tection of Section 9 (a), such grievance must be outside of and
not covered by the collective-bargaining agreement. 8 Further-
more, not only must the grievance sought not be covered by
the agreement, but the adjustment sought in such procedure
must not be inconsistent with such agreement.' In the instant
case, as noted above, the minority group sought action on a
subject clearly set forth in the contract and subject to ne-
gotiation by the parties.10 It is clear, therefore, that the adjust-
ment sought, namely, an opportunity to abandon the Union
could not be effected consistent with the agreement which
5 Medo Photo Supply Corporation v. N. L. R B., 321 U S. 678 , enforcing 43 NLRB 989
6Medo Photo Supply Corporation , supra
7" .. any individual employee or group of employees shall have the right at any time
to present grievances to their employer and to have such grievances adjusted , without the
intervention of the bargaining representative , as long as the adjustment is not inconsistent
with the terms of a collective bargaining contract or agreement then in effect " and provided
further "that the bargaining representative has been give opportunity to be present at such
adjustment."
8Douds v. Local 1250, 173 F. 2d 764.
9 Elliott , et al v . American Mfg. Co . of Texas, 203 F 2d 212 (C. A. 5).
10 See footnote 2, supr.
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
provided for the continuous recognition of the Union as the
bargaining representative of all the employees in the unit.
Because we have found that the activity described above
was, under the circumstances of this case not protected by
the Act, we find it unnecessary to consider whether the
Donovans were discharged for dual unionism.' We agree with
the Trial Examiner that, although the Respondent president's
statement that he would discharge William Donovan if "he
opened his mouth about any other union," constituted a violation
of the Act, we do not believe that this isolated statement and
the record as a whole, warrants us in issuing a remedial
order.' We shall, therefore, as recommended by the Trial
Examiner, dismiss the complaint in its entirety. 13
[The Board dismissed the complaint. ]
Chairman Farmer and Member Styles took no part in the
consideration of the above Decision and Order.
ti There is no substantial evidence indicating a discruninatory motive in the discharge of
the Donovans. No other unfair labor practices were filed against the Respondent. In addition,
knowing the antagonism of the UE to the Donovans, the Respondent nevertheless sought the
employment of William Donovan Furthermore, there is no evidence that the Respondent
interfered with the activities of the IAM in the plant.
12 Waffle Corporation of America, 103 NLRB 895.
is We agree with the General Counsel that the cases cited by the Trial Examiner in con-
nection with his discussion of the non-strike clause of the contract are not relevant. As there
was no actual strike prior to the discharges, we shall not pass upon the question raised by the
General Counsel as to whether or not the threat to strike constituted a violationg of the no-
strike clause Cf. Pepper & Potter, Inc., 104 NLRB 197.
Intermediate Report
During the term of an employment contract between Dazey Corporation, herein called
Respondent, and United Electrical, Radio and Machine Workers of America, Local No 810,
herein called UE, a group of employees in the screw machine section of Respondent's pro-
jectile department sought to become a craft group and to become severed from the production
unit, represented by the UE Ike Donovan, the spokesman for this group and his son, William
Donovan, a member of this group, were discharged October 24, 1952, and the principal
question in issue herein is whether they were discharged because of Respondent's resent-
ment against this concerted activity (and whether it was concerted activity protected by the
National Labor Relations Act, as amended, herein called the Act)
For some years Respondent had recognized UE as the exclusive bargaining agent of its
production employees. During the fall of 1951 organizing efforts on behalf of the international
Association of Machinists, AFL, herein called IAM, were conducted by the Donovans in an
effort to secure separate representation for screw machine operators. These efforts were
opposed by the UE which circulated a leaflet referring to the Donovans as "The Screwy
Screw Machine Donovan's" and as "Sell out Artists" because of their attempt "to set up a
separate unit in the shell department" and warning them to pay their UE fines "or be
taught the lesson the hard way. If you don't like it at the Dazey plant, go to an IAM plant,
no one will miss you." On November 15, 1951, the IAM filed with the National Labor Relations
Board, herein called the Board, a petition for certification of representatives, seeking a
unit of screw machine operators in the screw machine section of Respondent's projectile
department On December 5, 1951, the IAM requested permission to withdraw its petition
DAZEY CORPORATION 557
because the contract between Respondent and the UE, expiring in June 1952, was a bar to
further proceedings. Permission to withdraw was granted and this case (Case No 14-RC-
1663) was closed on December 5, 1951 Efforts on behalf of the IAM were discontinued and
there was no activity on its behalf when the current contract between Respondent and the UE
was negotiated and executed. This contract, effective from June 1. 1952, to June 30, 1954,
recognizes the UE as the exclusive bargaining representative for Respondents' production
employees, including employees in the projectile department, and contains, inter alia, union-
security and checkoff provisions, a grievance procedure and a clause stating "during the
term of this agreement there shall be no lockouts by the Company and no strikes or stoppages
of any kind for any reason by the Union or any of its members "
In December 1951 William Donovan voruntarily left Respondent's employ. In March 1952
L. J. Miller, Respondent's plant manager, called upon Ike Donovan, at the latter's home, and
asked whether William was interested in returning to Respondent's employ. Within a few
days (and on a Wednesday afternoon) William Donovan was interviewed by Arthur R. Brownlie,
Sr , Respondent's personnel manager, and told to report to work on the following Monday.
On the Friday immediately preceeding the date William was to report to Respondent, William
Gundelfinger, president of Respondent, called Ike Donovan to his office and told him he
(Gundelfinger) "was afraid for Bill to come back," that the UE "was either going to beat
him up or wreck his automobile or something " Ike Donovan thereupon telephoned his son
at his then place of employment and advised him to stay there and cancel his plans to return
to Respondent's employ, which William Donovan did
On or about July 26, 1952, William Donovan was again interviewed for employment by
Personnel Manager Brownlie and arrangements were made for him to begin work with
Respondent on July 28, 1952, which he did During this interview Brownlie told William
Donovan that in view of the current contract, he "would have to get along with the UE"1 and
William Donovan agreed to do so On or about August 28, 1952, John Farlow, the UE's chief
shop steward, and William Donovan had a discussion concerning William Donovan's back
dues (dues for the months he was not employed by Respondent) and certain unpaid fines im-
posed by the UE in 1951. William Donovan refused to pay these but offered to "pay the
reinstatement like a new employee would coming in " Farlow then informed William Donovan
that he (Farlow) "would get my [William Donovan's] job." A few minutes thereafter
Gundelfinger, president of Respondent, asked what the "trouble was" and was informed of the
dispute concerning the back dues and fines Gundelfinger remarked that he (Gundelfinger)
had promised the UE that if William Donovan opened his mouth about any other union he
(Gundelfinger) would fire him. 2 About an hour later Brownlee, Respondent's personnel
manager, told William Donovan he would not have to pay the back dues and fines but "would
be expected to pay the "initiation fee" or "reinstatement charges." William Donovan there-
after paid the UE initiation fee and current dues 3
Around September 1952, the employees in the screw machine section of the projectile de-
partment became dissatisfied with the UE and thereafter sought ways to get from under its
jurisdiction. As previously noted herein, Ike Donovan acted as their spokesman.4
During the early part of October 1952, and after talks among the men in the screw machine
section, Ike Donovan had prepared a statement reading:
We, the undersigned, hereby notify the Dazey Corporation that we are severing all
relations with United Electrical and Machine Workers Local #810 and demand that no
iBrownlie was aware of the UE's resentment of the Donovans' activity on behalf of the LAM.
2 The evidence concerning Gundelfinger's remarks is conflicting and contradictory Never-
theless, upon the basis of the entire record the undersigned believes and finds the facts to
be as stated above. In determining credibility in this proceeding the undersigned has con-
sidered inter alia: the demeanor and conduct of witnesses, their candor or lack thereof;
their apparent fairness, bias, or prejudice; their interest or lack thereof; the ability to know,
comprehend, and understand matters about which they have testified; whether they have been
contradicted or otherwise impeached; and consistency and inherent probability of testi-
mony.
3His dues were deducted pursuant to the checkoff provisions of the aforementioned con-
tract
4 This record reflects that Ike Donovan initiated and was responsible for development of a
movement to obtain for screw machine operators a skilled craftsman's classification and
that throughout the events herein outlined he acted as the spokesman for this movement.
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
more dues or assessments, etc. be deducted from our checks. This local Union's stand
at their Cleveland Convention makes the above action imperative. 10-8-52
Dated
Fourteen of the approximately fifteen employees in this section signed the above state-
ment On or about October 8, 1952, Ike Donovan and Charles Heyls (also a signer) took the
statement to Personnel Manager Brownlie's office and told him that the signers of the above
statement were satisfied with their relations with Respondent but were not satisfied with
their relations with the UE and that the purpose of the statement was "to get out of the UE."
Within the next few days Ike Donovan mailed a duplicate of the above statement to the UE and
William Donovan and Charles Heyl took another duplicate to the offices of the Labor Board.
On or about October 10, 1952, Ike Donovan was called to President Gundelfinger's office,
and in the presence of Plant Manager Miller, Personnel Manager Brownlie, UE Chief Shop
Steward Farlow, and others, told (by Gundelfinger) that Respondent was bound to abide by
the contract between Respondent and the UE and that the employees must continue to pay dues
to the UE. It was suggested that those signers of the statement quoted above who had been
employed by Respondent more than a year sign a new dues deduction authorizations and a
statement for their signatures was prepared. The statement, signed at that time, reads as
follows:
We, the undersigned, under date of October 8, 1952, along with 15 other persons signed
a petition asking the Dazey Corporation not to deduct dues for Local 810.
We wish to rescind this order at the moment as we are taking the matter up with our
union direct and will advise you later as to our decision.
s/ Ike Donovan
s/ Gregoria E Carmona
s/ Charles Heyl
s/ Emil Gumper
October 10, 1952
Thereafter, Ike Donovan sought advice from an attorney (not in any manner associated
with Respondent) as to how these employees could get out from under the jurisdiction of the
UE and was advised that possibly such could be accomplished if the screw machine em-
ployees were classified as skilled craftsmen, a classification other than the one then in
effect.
On or about October 14, 1952, Ike Donovan told Plant Manager Miller that he (Ike Donovan)
had been told that if the screw machine employees were reclassified as skilled craftsmen
they could get out of the UE and asked Miller to help get reclassifications. Miller stated he
didn't think screw machine employees were skilled craftsmen and that he didn't see how
they could be classified as such Nevertheless, Miller called a machinist (Johnson) nearby
and the three of them (Ike Donovan, Miller, and Johnson) discussed the qualifications of
skilled craftsmen.
On or about October 16, 1952, the UE distributed an article attacking "that certain group
employed on screw machines" and the "leader of the click" (Ike Donovan) for "their Union
busting tactics," for trying ,to disrupt and divide UE membership employed by the Dazey
Corporation" and for seeking representation by the IAM. This leaflet came to the attention
of Personnel Manager Brownlie
On or about October 16, 1952, Plant Manager Miller indicated to Ike Donovan or Charles
Heyl that he (Miller) would contact some of the other companies in the area and see how they
classified their screw machine operators and would advise the employees the results of the
survey
5Heyl, a UE steward for this secton, was one of those seeking a way to get out of the UE.
6 It was stated that those with less than a year's service did not need to sign a new au-
thorization since they had signed one with in the year.
DAZEY CORPORATION 559
About a week before October 24, 1952, Ike Donovan and screw machine operator Gerald
Schutz indicated to Personnel Manager Brownlie that employees in the screw machine section
were dissatisfied with their classification and with their failure to receive certain pay
raises negotiated concurrently with the contract but subject to approval by the Wage Stabiliza-
tion Board Schutz stated he was contemplating leaving Respondent's employ unless something
was done about these matters. Brownlie indicated the pay matter was pending before the
Wage Stabilization Board and would be forthcoming as soon as that Board approved the
increases Brownlie further indicated that Plant Manager Miller was making a survey of
how other concerns classified their screw machine operators and that the employees could
expect, within a week, a definite statement from Respondent concerning their request for re-
classification as skilled craftsmen. 7
During the morning of October 24, 1952, William Donovan and 3 to 6 other screw machine
operators,8 on different occasions, requested to be paid early that day and to be excused
for the rest of the day It was unusual for such a large number of operators to make such a
request Foreman Virgil Rutter reported the situation to Plant Manager Miller and to Per-
sonnel Manager Brownlie and was told the checks would not be ready until about 2:30 After
receipt of the above information from Rutter and after the conversation with Heyl, herein-
after noted, wherein Heyl indicated the men were contemplating a "walk out" or"'strike,"
Miller telephone President Gundelfinger and told him "that something would have to be done
to prevent production from stopping "
At about 10.30 a m on Friday, October 24, 1952, Ike Donovan, in the presence of William
Donovan, stated to Charles Heyl, UE steward for the screw machine section but one of those
seeking reclassification, that the men in the screw machine section were "much dissatisfied"
and were talking about "knocking off' that day unless they got answers as to when they
could expect pay raises and whether they would be reclassified as skilled craftsmen Ike
Donovan indicated something would have to be done about the situation immediately lleyl
told Plant Manager Miller what Ike Donovan had said, including the statement that "that day
was the deadline" for Respondent's answer to the requests for reclassification. Miller and
Heyl then telephoned other concerns and inquired as to how those concerns classified screw
machine operators. Those concerns reported they did not classify them as skilled craftsmen.
Heyl reported this information to Ike Donovan and "the boys in the screw machine" section
and Ike Donovan expressed disappointment and stated he knew there were other concerns
that classify screw machine operators different from the classification existing at Respondents'
plant
While Miller and Heyl were contacting other concerns, as noted above, Brownlie, on a
routine trip through the plant, stopped at Miller's office. Shortly thereafter and before noon
on that day Ike Donovan, in the presence of other screw machine operators, including his son
William, indicated to Brownlie that the men would "have to have an answer" to their re-
quests for reclassification that day,9 that the men "wanted to leave" and he (Ike Donovan)
could not hold them any longer At this time William Donovan indicated the men wanted a
"journeyman's card " Brownlie told the group that the Company's hands were tied and the
only way to get reclassification was through the U.E. ii This discussion ended abruptly
when Brownlie was called to answer the telephone Immediately after this meeting Brownlie
reported, via telephone, to President Gundelfinger that there "was something brewing in
the projectile department," that there was a "lot of unrest out there" and that the men were
threatening to strike
Upon receipt of the reports from Miller and Brownlie, Gundelfinger arranged for a con-
ference with the UE shop committee and Miller and Brownlie. At this conference, which
began about 1 p. m. that day, Gundelfinger asked Miller and Brownlie to repeat what they had
said to him (Gundelfinger) and they stated there was a lot of unrest in the screw machine
section, that a lot of the employees had asked for the afternoon off with no apparent reason,
that there were threats of a walk out and that they "were very much apprehensive about the
department" and didn't know what was going tc happen. Gundelfinger asked Heyl whether
7 Brownlie denied that he promised to "let them know in a week." In the light of the en-
tire record it appears probable that Brownlie did make some such commitment and his
denial is not credited by the undersigned.
8 There were from 8 to 10 operators on this shift.
8 The employees wanted a written statement from Respondent
10 The current contract provides: "new or omitted classifications and rates shall be estab-
lished by negotiation and agreement between the Company and the Union [the UE ]"
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there was a "lot of unrest and disturbance " and upon receiving an affirmative reply and a
statement that the men were "going to walk out" asked who was causing the "disturbance
and unrest " Heyl named Ike and William Donovan as the leaders Gundelfinger then told
Brownlie that he was to " fire" the Donovans and remarked that he was not going to let a few
people " stand in the way" of Respondent " completing their contract with the govern-
ment." ii
At about 1:45 p . m on October 24,1952, Ike and William Donovan were called to Brownlie's
office and discharged . William Donovan asked the reason for the discharges and Brownlie
said for "agitation" and causing a disturbance or disruption in the screw machine section.
When pressed for a more specific reason, Brownlie said for "union activity " 12 William
Donovan requested a written statement giving the reason for the discharges and Brownlie
agreed to prepare such while they (the Donovans) were checking out their tools Later that
day (about 3 p.m.) Brownlie offered the Donovan letters stating:
We are terminating your employment with this Company as of today for good and suf-
ficient cause . We are sorry we found it necessary to take this step
William Donovan protested that the letters did not reflect what he anticipated they would re-
flect , because of the earlier conference , i. e., because the letters did not say they were dis-
charged for "union activities." Brownlie refused to give them any other letters and walked
away.
At all times material herein the IAM has been the recognized bargaining representative
for employees in Respondent 's toolroom and the record reflects that Respondent was not
opposed to the IAlvl and did not attempt to restrain activities on its behalf except as outlined
in this report.
Conclusions
It is apparent from the facts outlined above that the employees in question , acting in con-
cert with a view toward eliminating their recognized bargaining representative , sought from
Respondent a statement ( in writing) that they were skilled craftsmen 13 and threatened to
cease work unless Respondent met their demand There is no doubt that Respondent was
aware of these concerted activities , the purpose thereof , and that the Donovans ( especially
Ike Donovan) were considered the leaders of this activity It is also clear that the Donovans
were discharged for this conduct
While it is per se a violation of the Act for an employer to discharge employees for en-
gaging in concerted activity protected by the Act, not all concerted activity may be engaged in
with impunity To be afforded the shelter of the Act the conduct must fall within the protection
of Section 7 of the Act, 14 and be what is generally referred to as "protected concerted
activity " The question herein is a narrow one, namely , did the aforementioned conduct of
the discharged employees fall within the protection of the Act? If it did, the discharges on
"Respondent , a Missouri corporation having its principal office and place of business in
St. Louis, Missouri , engages in the manufacture and sale of household appliances, and in
addition , at all times material herein, produced "vital defense material for use by the
United States Armed Forces." The Board's jurisdiction is not contested.
12 There is a dispute as to whether Brownlie use the phrase "union activity" and on the
basis of the entire record the undersigned finds he did. However , it appears from the record
herein that this phrase had reference to the activities herein above outlined and not to ac-
tivities on behalf of any particular labor organization , more particularly not to activities
on behalf of the IAM.
19 In the light of the facts noted above , the undersigned cannot conclude that these em-
ployees were indifferent as to the wording of the statement , i. e., as to whether the state-
ment said they were or were not skilled craftsmen , and believes and finds that at the time
of the threat to strike they sought a statement that they were skilled craftsmen
i4Section 7 of the Act states: "Employees shall have the right to self - 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,
and shall also have the right to refrain from any or all of such activities except to the ex-
tent that such right may be affected byan agreement requiring membership in a labor organi-
zation as a condition of employment as authorized in Section 8 (a) (3) "
DAZEY CORPORATION 561
account thereof are clearly violative of the Act If it did not, the discharges were justified 15
and furnish no basis for a finding of unfair labor practice.
In effect the screw machine operators, a minority group within the unit of production em-
ployees, were seeking to reclaim part of the duties delegated to the exclusive bargaining
representative and were about to resort to strike action to accomplish this purpose. In view
of the provisions of the contract, had they engaged in a strike their conduct would not have
been protected. See N. L. R. B v Rockaway News Supply Co., Inc, 345 U.S. 71, and
N. L. R. B v. Draper Corporation, 145 F 2d 199 (C. A. 4). i6
While this record reflects an intention by the screw machine operators not to seek to
bargain through the IAM until the end of the contract term , such was not communicated clearly
to Respondent Furthermore, as indicated above, their relations with Respondent were
indicative of a purpose to terminate immediately the authority of the bargaining repre-
sentative to act on their behalf and indicative of a purpose to act in derogation of the rights
of the exclusive bargaining representative and compel Respondent to capitulate to the demands
of the screw machine operators, as such In addition, they had expressed to Respondent
unequivocal threats 17 to cease work concertedly (not to work in accordance with their con-
tract) to
Under all the circumstances of this particular case the undersigned deems the action of the
screw machine operators as destructive of the stable collective bargaining and industrial
peace, which the Act seeks to achieve (in contravention of the basic policies of the Act to
encourage employment contracts binding on employers and their employees) and the under-
signed is of the opinion that the aforesaid activities are not the sort of concerted activities
which Congress intended this Board to protect. Accordingly, the undersigned recommends
that the allegations of the complaint with respect to the discharges of the Donovan's be
dismissed
The remarks of President Gundelfinger on or about August 28, 1952, that he had promised
the UE he would fire William Donovan if he (William Donovan) opened his mouth about any
other Union violated Section 8 (a) (1) of the Act However, upon consideration of the entire
record, especially Respondent's amicable relations with the IAM and the absence of other
evidence indicative of a predilection to commit other unfair labor practices in the future,
it is believed that this incident is not sufficient to warrant issuance of a remedial order.
See Waffle Corporation of America 103 NLRB 895.
[Recommendations omitted from publication.]
15 The wisdom of such action is not before the undersinged.
i6 In National Electric Products, 80 NLRB 995, the Board majority held:
The right to strike, although protected by th Act, may be waived by the employees in an
agreement concluded through the collective bargaining process.... As we have hereto-
fore emphasized, "no- strike" clauses . . . are designed to forestall the use of even
permissive economic weapons and to substitute settlement by collective bargaining, and
tend to realize the purposes of the Act by encouraging the practice and procedure of
collective bargaining rather than resort to industrial warfare.
In Scullin Steel Company, 65 NLRB 1294, and Joseph Dyson , Sons, Inc., 72 NLRB 446,
both cited with approval in Mastro Plastics Corps, 103 NLRB 511, the Board held that economic
strikes in violation of no-strike clauses are not protected activity. In both the Scullin and
Dyson cases, the Board noted the absence of any prior breach of contract or unfair labor
practices on the part of the employer. In the Mastro Plastics case the Board held that a
strike in protest against unfair labor practices apart from the terms, meaning an applica-
tion of the contract and in no manner an attempt to circumvent the arbitration provisions
of the agreement or an effort to alter other provisions and guarantees was not a breach of
the contract and was not unprotected activity.
i7Under all the facts in this case the threat to strike cannot be considered a tactical
maneuver lacking actual, or apparent, intent to effect a strike. Whether such a maneuver is
a repudiation of a contract and outside the protection of the Act need not be, and is not,
answered herein
18 An effective discharge for repudiation by employees of their agreement may be made
without violating the Act. See N L R. B. v. Rockaway News Supply Co., supra, and N. L R. B.
v. Sands Mfg. Co., 306 U. S. 332.