Delsea Iron Works, Inc.

National Labor Relations Board - Board Decisions

Mar 21, 1962

136 N.L.R.B. 453 (N.L.R.B. 1962)

DELSEA IRON WORKS, INC. 453
Delsea Iron Works , Inc. and Local 676, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America. Cases Nos. 4-CA-2369 and 4-RC-4619. March 21,
1962
DECISION AND ORDER
On November 27, 1961, Trial Examiner Sidney Sherman 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 copy of the
Intermediate Report attached hereto. Thereafter the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
Briefs in support of the Intermediate Report were filed by the Gen-
eral Counsel and the Charging Party.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, 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 exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner With the following additions and
modifications.
1. The Trial Examiner found that the Company's President Charles
Jublou's statement to employee Elmer Martin at 2 p.m. on May 8,
that, ". . . if you leave now I'll consider that you're quitting," consti-
tuted a discharge of Martin. He found that Jublou's statement that
the strikers "had quit and he was going to replace every one of them"
to Iron Workers Union Representative Arthur Lee at 5 p.m. Monday,
May 8, amounted to a discharge of the other claimants. Contrary to
this latter finding of the Trial Examiner, insofar as it included
claimants Charles Carr and James Shafer, we find that their respec-
tive discharges did not occur at 5 p.m. on May 8.
Employee James Shafer did not learn of the walkout until he re-
turned to the Respondent's plant from working elsewhere at 7:30 p.m.
on May 8, and it cannot be said that he participated in the strike on
that day. However, Shafer did join the strike the next day, May 9.
1 The Trial Examiner ruled that he had no authority to consider whether there was an
adequate showing made to support the petition in Case No . 4-RC-4619. We are satisfied
that the Union had an adequate showing of interest in the unit found appropriate herein.
0. b. Jennings & Company, 68 NLRB 516.
136 NLRB No. 41.
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 9, striker Ronald Shafer made an anonymous call to Jublou
claiming to speak for the employees. Jublou told him that "as far as
he was concerned the men in the shop had all quit." We find that this
statement of Jublou was not only a reaffirmation of his discharges of
those who had struck the preceding day, but constituted a discharge
of James Shafer, too. Employee Carr did not walk out on May 8.
He worked not only that day but the next day, too. It was not until
the 10th that Carr, because of the picket line, first withheld his serv-
ices. On May 11, Jublou told Teamsters Representative Jackson that
the men had "walked off the job, and that [although he had not in fact
done so] he had replaced them with other men." Jublou, thus, not
only again affirmed the earlier discharges but thereby discharged
Carr, too.
2. We agree with the Trial Examiner that in striking to protest the
Respondent's no-smoking rule the employees were engaging in a pro-
tected concerted activity. Washington Aluminum Company, Inc.
126 NLRB 1410.1 In that case, the Board held that the walkout of a
group of employees in protest of cold working conditions in the plant
was a protected activity, even though, as here, no demand had been
presented to the Employer prior to the walkout. We note, moreover,
that here, the Respondent, in effect, told at least two employees that
if they did not like the rule against smoking they could look for work
elsewhere. Further, it is clear from the record here that shortly after
the walkout and prior to discharging any employee, the Respondent
was fully aware of the reason for the employees' action. Thus, the
record shows that 30 minutes after the walkout began employee Carr
told Jublou the reason for it was "on account of this smoking."
ORDER
Upon the basis of 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 the Respondent,
Delsea Iron Works, Inc., Millville, New Jersey, its officers, agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in any labor organization of its
employees by discriminating in regard to their hire, tenure, or any
other term or condition of employment.
(b) In any other manner, interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join or assist any labor organization, to bargain collectively
through representatives of their own choosing, to engage in concerted
2Enforcement denied 291 F . 2d 889 (C.A. 4) ; 370 U. S. 9, reversing and remanding
291 F. 2d 869.
DELSEA IRON WORKS, INC. 455
activities for the purposes of collective bargaining or other mutual aid
or protection, or to refrain from any or all such activities, except
to the extent that such right is affected by the proviso in Section
8(a) (3) of the Act.
2. Take the following affirmative action, which is necessary to ef-
fectuate the policies of the Act :
(a) Offer the employees named in Appendix B, attached hereto,
except Carr and Hackleton, immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges; offer such reinstatement to
Hackleton upon appropriate application by him; and make all these
employees whole in the manner set forth in the section of the Inter-
mediate Report entitled, "The Remedy."
(b) Preserve and, make available to the Board or its agents, upon
request, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amount of backpay due.
(c) Post at its plant at Millville, New Jersey, copies of the notice
attached hereto marked "Appendix A." 9 Copies of such notice, to be
furnished by the Regional Director for the Fourth Region, shall, after
being duly signed by an authorized representative of the Respondent,
be posted immediately upon receipt thereof, and be maintained by it
for a period of 60 consecutive days thereafter in conspicuous places,
including all 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.
(d) Notify the Regional Director for the Fourth Region, in writ-
ing, within 10 days from the date of this Order, as to what steps the
Respondent has taken to comply herewith.
3In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order "
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in any labor organization
by discriminating in regard to hire, tenure of employment, or any
other term or condition of employment of any of our employees.
WE WILL NOT in any other manner interfere with, restrain,
or coerce our employees in the exercise of their right to self-
organization , to form a labor organization, to join any labor
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization , to bargain collectively through representatives of
their own choosing , and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any and all such activities , except to
the extent that such right is affected by the proviso to Section
8(a) (3) of the Act.
WE WILL offer George Hockenbury, Samuel Kelley, Jr., Richard
Langley, Orrin Lord, Philip Wolfe, Elmer Martin, William Bruce
Reed, Elmer Shafer, James Shafer, Richard Shafer, and Ronald
Shafer immediate and full reinstatement to their former or sub-
stantially eqivalent positions without prejudice to their seniority
or other rights and privileges and make them whole for any loss,
of pay suffered as a result of the discrimination against them-
We will offer such reinstatement to Howard Hackleton upon
application by him.
DELSEA IRON WORKS, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, 1700 Bankers Securities Building, Walnut and Juniper Streets,
Philadelphia 7, Pennsylvania, Telephone Number, Pennypacker
5-2612, if they have any question concerning this notice or compliance
with its provisions.
APPENDIX B
Charles Carr
Howard Hackleton
George Hockenbury
Samuel Kelly, Jr.
Richard Langley
Orrin Lord
Philip Wolfe
Elmer Martin
Elmer Shafer
James Shafer
Richard Shafer
Ronald Shafer
William Bruce Reed
INTERMEDIATE REPORT
This proceeding was heard at Philadelphia , Pennsylvania, on September 21 and 22,
1961 . The issues litigated were whether the Respondent violated Section 8(a)(3)
and (1) of the Act by the discharge of 13 employees , and whether such employees
or their replacements were eligible to vote in a Board-directed election. After the
bearing, briefs were submitted by the Respondent , the General Counsel, and the
Charging Party.
Upon the entire record and my observation of the witnesses , I adopt the following
findings:
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a corporation organized under the laws of New Jersey, with
its principal plant in Millville , New Jersey , where it manufactures steel products.
DELSEA IRON WORKS, INC. 457
Respondent annually ships from the plant to out-of-State points products valued in
excess of $50,000.
I find that the Respondent is engaged in commerce within the meaning of the Act
and that it will effectuate the policies of the Act to assert jurisdiction herein.
H. THE LABOR ORGANIZATION INVOLVED
Local Union 676, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, hereinafter called the Charging Union or the
Union, is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The amended complaint alleges that on or about May 8, 1961, 13 named em-
ployees of Respondent concertedly ceased work and struck, that on the same date
the Respondent discharged such employees, and has refused to reinstate them, be-
cause they engaged in concerted activities for mutual aid and protection and that
the Respondent thereby violated Section 8 (a) (3) and (1) of the Act.
Respondent's answer admits that 11 of the employees named in the amended
complaint ceased work concertedly, but neither admits nor denies that they struck,
alleging that Respondent has not been informed at any time of the reason for such
concerted work stoppage. The answer states further that when the aforesaid 11
employees failed to report for work, the Respondent treated them "as having vol-
untarily quit" and refused to reinstate them "because they voluntarily left their jobs
without permission and without notifying Respondent as to the reason or reasons for
such cessation of work." As to the two remaining individuals named in the amended
complaint (Can and Hackleton), Respondent's answer avers that they were granted
a "leave of absence" during the week of May 8, which leave was still in effect.
A. The facts
On May 8, the Respondent had 15 production employees, of whom 11 were that
day working in its shop, and 4 were employed on outside jobs-2 at the plant of a
customer, Shield-Alloy, and 2 at Bordentown State Reformatory. None of the
employees was at that time represented by any union. The principal officers of
the Respondent were Charles Jublou and his wife. There is no dispute that between
9 and 9:30 a.m. on May 8, Mrs. Jublou told each of the 11 employees in the shop
that the Respondent had adopted a no-smoking rule.' Two of the employees testified,
without contradiction, and I find, that Mrs. Jublou told them in effect that if they
did not like the no-smoking rule, they would have to look for other employment.
Later the same morning 9 of the 11 employees in the shop discussed among them-
selves the new rule as well as other unsatisfactory conditions in the shop and decided
to leave the plant in a body and contact a union to represent them in dealing with
the Respondent in connection with the various unsatisfactory working conditions.
Accordingly, all nine walked out at noon, at the beginning of the 30-minute lunch
break. Seven of the nine proceeded to contact the two employees who were working
on the Shield-Alloy job and solicit them to join in the group action. The other two,
Can and Hackleton, remained outside Respondent's plant, where they ate their
lunch. About 12:30 p.m., the Jublous, who had gone out for lunch, returned to the
plant and engaged in conversation with Carr and Hackleton. According to Mrs.
Jublou's pretrial affidavit, which was adopted in this respect by Mr. Jublou at the
hearing, Carr and Hackleton informed the Jublous that the nine employees had
left the shop "after announcing that they were going to have a meeting about the
no-smoking rule" with the two employees at Shield-Alloy. Hackleton testified,
without contradiction, and I find, that he told the Jublous that he and Can were
"going to go home because the fellows walked out . . . and come back when it's
all over," and that, when Mr. Jublou directed him to return to work, Hackleton said,
"No, I have to work with them fellows when they come back . . . I'm not going
to go back when the fellows stay out from work." At this point, either Mr. or Mrs.
Jublou remarked, "they don't work here anymore now; they're done." Hackleton
did not return to work. Carr testified, without contradiction, and I find, that in the
1 Mrs Jublou's pretrial affidavit, which was introduced in evidence, so states In addi-
tion there was uncontradicted testimony by several of the employees that they and others
were informed by Mrs Jublou of the no-smoking rule in the morning of May 8
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
course of the foregoing conversation he told the Jublous that he was considered going
home because "the fellows have walked out and there 's some kind of strike or some
trouble," and that the employees' action was "on account of this smoking." 2 Carr,
however, agreed to return to work that afternoon, but, when the picket line (see
below ) appeared on May 10, he refused to cross it and has not since worked for
Respondents
Meanwhile , the nine other "claimants" 4 contacted Elmer Martin and Richard
Shafer at the Shield-Alloy job and induced them to join in the group action. About
2 p.m., Martin returned to the Respondent 's shop and told Mr . Jublou that "the
men were on strike" and he was joining them .5 Thereupon Jublou stated , "... if
you leave now I'll consider that you 're quitting."
Meanwhile the claimants contacted the Iron Workers Union and one of them
informed Lee, a representative of that union, that they had struck because of the
no-smoking rule and other matters and wanted the Iron Workers to represent them.
About 5 p.m. on May 8, Lee called Mr. Jublou and promised that the claimants
would return to work provided that Respondent recognized and negotiated with
the Iron Workers as the bargaining agent of its employees . Jublou answered, ac-
cording to Lee, that "the men had come out on strike at noon of that day .. . that
as far as he was concerned ithey had quit and he was going to replace every one of
them." Jublou then referred Lee to his attorney, who informed Lee the next day
that Respondent's position was as already stated by Jublou. Mr. Jublou's version
-was that he told Lee that the men had "walked out" without telling Jublou why,
and that as far as he was concerned they had quit. Jublou however, denied telling
Lee that the men had struck, asserting that he did not know at the time whether
they had struck. I credit Lee's version, as, unlike Jublou, he had no apparent im-
mediate interest in the outcome of the instant case.6 Moreover , in view of the
findings above as to the explanations for the employees ' action given to him by
Hackleton , Carr , and Martin , I do not credit Jublou 's denial that he was not aware
that the men had struck. All three of these employees were participants in the
group action, they had told Jublou, more or less explicitly, that the defecting em-
ployees were engaging in a strike ,7 and Jublou vouchsafed no reason at the hearing
for doubting the accuracy of their statements.
Accordingly, I find that about 5 p.m., on May 8, Jublou told Lee that the claimants
had struck and would be treated as having quit, thereby, in effect, announcing to a
representative of the claimants that they were discharged. On May 9 Lee conveyed
Jublou's position to one of the claimants, after it had been confirmed by Jublou's
attorney.
About 7: 30 p.m. on May 8 , James Shafer , who had been employed on an out-
side job all day, returned to the shop, and was informed by Mrs. Jublou of the walk
out. According to James Shafer's undenied testimony, which I credit, Mrs. Jublou
told him "that she didn't know why they walked out-but that she had gone around
and told them that they could not smoke any longer in the shop." When James
Shafer stated that he could not return to work until he learned the reason for the
walkout , Mrs. Jublou announced, "As far as I'm concerned , the men quit ." James
proceeded to his home where he found three of the claimants, who informed him
that they had struck because of the no-smoking rule and other adverse working con-
ditions . James did not return to work.
2 Mr. Jublou 's testimony corroborates Carr , admitting that Carr had mentioned the
no-smoking rule as the reason for the walkout
3 Carr admitted that he had intended to quit the Respondent 's employ, in any event,
on May 12, 1961
'This term is used hereinafter to refer to the individuals alleged in the complaint to
have been unlawfully discharged
5 Mr. Jublou testified that Martin announced , upon his return from Shield-Alloy, that
he was "going home " However, he was not questioned about , and so did not deny,
Martin's reference to a "strike."
O After May 8, there were no further communications between the claimants and the
Iron Workers , and that union took no action on their behalf after May 9.
4 Jublou testified that lie did not decide that the men had quit until the morning of
May 9, when they failed to report for work "and no one had contacted me as to whether
they were coming in or not" However, Jublou admitted that Lee called him on May 8
and requested that he reinstate the men If Jublou was in fact in doubt before Lee's call
as to whether the men had quit or struck, Lee's offer of a return to work in exchange for
negotiations should have satisfied Jublou that the claimants had not abandoned their
,employment
DELSEA IRON WORKS, INC. 459
On May 9, Jublou received a telephone call from one of the claimants , Ronald
Shafer, who stated that he was speaking for the Respondent 's employees and would
like to meet with Jublou to discuss their problems . Jublou retorted that "as far
as he was concerned the men in the shop had all quit . That's all there was to it."
No meeting ensued.8
On May 10, the claimants began to picket Respondent's plant with a sign pro-
testing substandard working conditions . On May 11, four of the claimants, who
had been selected by the others ,to represent them, met with Jackson , a representative
of the Charging Union . After some discussion , Jackson called Jublou. According
to Jackson , he asked Jublou to reinstate the claimants , 9 but Jublou refused , stating
they had "walked off the job, and that he had replaced them with other men." 10
Jublou's version of this conversation was that Jackson told Jublou "he had some
of my men signed up"; that Jublou commented , ". . . it looks to me like you're
going to have to find them a job"; and that Jackson referred to a contract which he
wanted Jublou to sign . At the hearing, Jublou adopted as true a statement in his
wife's pretrial affidavit which attributed to Jublou an admission that he had rejected
Jackson's request for reinstatement of the claimants , asserting that they had quit and
been replaced.
There seems, therefore , to be no substantial dispute that Jublou on May 9, refused
to reinstate the claimants , asserting that they had quit and had all been replaced,
although only four had in fact been replaced . While , for reasons already indicated,ii
I do not regard this action of Jublou as the rejection of a valid request for reinstate-
ment, I do regard it as proof that on that date Respondent intended to replace all
the claimants regardless of any valid request they might make for reinstatement,12
and that Respondent regarded the employer -employee relationship between it and
the claimants as having been severed.
On May 15, the pickets adopted a new sign which announced a strike sponsored
by the Charging Union. On May 25 counsel for the Union sent a letter to Respond-
ent, which unconditionally requested reinstatement for all the claimants except
Hackleton and Carr . None of the claimants has been rehired.
On May 29 the Union filed a petition for an election among the Respondent's em-
ployees,13 and an election was held upon this petition on August 21, 1961. The tally
of ballots shows that no votes were cast for , and 2 were cast against , the Union, and
that 22 ballots were challenged . Eleven of the 22 ballots, comprising the ballots of
11 of the 13 claimants herein , were challenged by the Respondent . The remaining
11 challenges were by the Union and were directed against the ballots cast by re-
placements for the claimants.
B. Discussion
1. Case No. 4-CA-2369
The General Counsel 's primary position is that the Respondent in effect dis-
charged the claimants on May 8 for engaging in a protected concerted activity. Re-
spondent counters that (1 ) there was no strike but only a concerted quitting of
work; 14 ( 2) if there was a strike , it was not protected; and (3 ) in any event , Respond-
ent at no time discharged the claimants.
8 Mr. Jublou did not testify about this incident, but Mrs Jublou ' s pretrial affidavit,
which was adopted by him at the hearing, contains some reference to the matter, which
conflicts with Ronald Shafer 's testimony , I credit Shafer
0 Jackson at first testified that this request for reinstatement was his "own idea." I do
not credit his subsequent confused retraction of this admission , particularly in view of the
testimony of one of the members of the committee iepresenting the claimants that the
request for reinstatement was not authorized in advance by the committee While there
was testimony by this claimant that he overheard Jackson's plea to Jublou for reinstate-
ment and offered no objection , and that he was willing to return to work unconditionally,
the same witness testified that he would not have returned unless the conditions that
caused the walkout were removed , and that he did not discuss with the other claimants
the conditions under which they would return On this record , I am unable to find that
Jackson's request for reinstatement was authorized or ratified by any of the claimants
'° As a matter of fact, by May 11 Respondent admittedly had hired only four replacements.
u See footnote 9, supra
Jublou was not aware , so far as the record shows , of any defect in Jackson 's authority
to request reinstatement , and the only reason he gave for not granting the request was that
the claimants had "quit" and been "replaced
13 Case No 4-RC-4619
14 The Board has held that a concerted quit is not protected by the Act Crescent Wharf
and Warehouse Company, and its successor, West Coast Terminals Co , Inc., 104 NLRB
860, 861-862
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to (1), the evidence is overwhelming that the strikers did not intend to quit but
intended only to absent themselves from work pending a resolution of their differ-
ences with the Respondent. This appears from the testimony of certain of the claim-
ants at the hearing that their purpose in walking out was to obtain union representa-
tion in negotiating with the Respondent about their working conditions, particularly
the no-smoking rule. Had they intended to abandon their employment, they would
have had no interest in changing the conditions of such employment. That such was
in fact their objective is corroborated by their subsequent conduct in soliciting first
the Iron Workers, and then the Charging Union, to represent them in dealing with
the Respondent, and in picketing at the Respondent's premises with signs protesting
the working conditions. Moreover the Jublous were amply apprised by the state-
ments of Hackleton, Carr, and Martin on May 8 that the claimants regarded them-
selves as being on strike, and Mr. Jublou's own characterization of the action of the
claimants is not consistent with a belief that they had quit. In fact in his conver-
cation with Lee on May 8 he referred to the group action as a "strike." While on
other occasions he referred to such action as a "quit," he almost invariably qualified
this by the phrase "as far as I am concerned" or the equivalent.
Thus, Mr. Jublou told Lee and Ronald Shafer, that "as far as he was concerned"
the men had quit. Mrs. Jublou's remark to James Shafer on May 8 was in the
same vein. By his own admission, Mr. Jublou told Martin on May 8, that if he did
not return to work Jublou would "consider that" Martin was "quitting."
The foregoing are not the sort of statements that an employer makes about
employees who are in fact quitting, but smack rather of the reaction of an employer
to an employee's leaving his work for reasons of which the employer does not approve.
In fact, the Respondent's answer to the amended complaint carefully refrains from
alleging that the group action of May 8 was a quit, or that the Respondent so
believed, and asserts only that the Respondent "treated [the claimants] as having
voluntarily quit their employment."
In view of all these circumstances, I find that ,the claimants did not quit but struck,
that the strike was precipitated by the no-smoking rule, and that this was known
to the Respondent at all times here relevant.
The Respondent's second contention-that, if the group action of May 8 was a
strike, it was unprotected-presents a somewhat novel legal question. Respondent
argues that there was lacking here an essential ingredient of a protected strike namely,
"notice or demand made upon the employer coupled with an effort to reach an
amicable settlement." Respondent relies principally on two court decisions, denying
enforcement of Board orders.15
It is true that in the Washington Aluminum case, supra, the court, in finding a
strike unprotected, relied in part on the failure of the strikers to make any demand
upon management before walking out. While the court noted that the Board had
found that individual employees had prior to the walkout complained to manage-
ment about the working condition which precipitated the walkout-inadequate beat
in the plant, the court stressed the failure of the employees "to attempt to make
inquiry concerning the causes of their physical discomfort or to present their claims
or demands to the company prior to the walkout."
It thus appears to have been the position of the Board in that case that mere
complaints prior to the walkout sufficed, whereas the court's position seems to
have been that it was incumbent upon the employees to do something more before
striking-either inquire into the cause of the inadequate heat or demand that man-
agement remedy the condition.
The aforestated position of the Board sheds little light on the instant problem.
Here, there was not even a prior complaint. The claimants walked out a few
hours after the no-smoking rule was announced and because of that rule, but
without having individually or collectively told management that they had any
objection thereto, and a fortiori, without having satisfied the requirement of the court
m N.L.R.B v Ford Radio & Mica Corporation , 258 P 2d 457 (C.A. 2) ; N L.R B. v.
Washington Aluminum Company, Inc, 291 F. 2d 869 (CA 4), 370 U S. 9 reversing and
remanding 291 F 2d 869 The Ford case seems distinguishable on the ground that the
court there stressed, not the lack of prior notice of the strike, but the persistent refusal of
the strikers to inform management of their grievances even after the strike had begun.
Here, however, the Respondent on May 9 rejected a request by a striker (Ronald Shafer)
to meet and discuss the grievances which gave rise to the walkout Moreover, here, unlike
the situation in the Ford case, the Respondent was informed within a half hour after the
walkout that it was occasioned by the no-smoking rule and had no reason to believe that
the objective of the strikers was such as to render the strike unprotected.
DELSEA IRON WORKS, INC. 461
in Washington Aluminum that they inquire into the reason for the rule or demand
that the rule be rescinded or modified.
However, it has been here found that about 5 p.m. on May 8, after having been
advised by Carr and Hackleton that the walkout was because of the no-smoking
rule, Mr. Jublou in effect announced to Lee that the claimants had been discharged.
It is thus clear that Jublou reached the decision to discharge the claimants after
be had been put on notice of their grievance.le
On these facts, the Board precedent most nearly in point appears to be the case
of Solo Cup Company,17 Where the Board found that the respondent violated the
Act by discharging four employees because, without having made any prior com-
plaint or demand, they shut down their machines and left their work stations for
about an hour, refusing to return until they had obtained a promise that manage-
ment would explain to them the discharge of two fellow employees.
,In enforcing the Board's order in that case, the court said:
The employees might well have exercised better judgment by sending a com-
mittee to the management at a more convenient time for making their protest
and demand, but we are unable to conclude that ill judgment or lack of con-
sideration adds up to illegality. Regardless of what we may think about the
activities of the employees and the manner and time of making their protest
and demand, we must conclude with the Board that their protest came within
the protective purview of the Act. (p. 526)
While there is considerable force in ,the view of the court in Washington Aluminum
that aggrieved employees ought to afford their employer an opportunity to avoid
a strike by presenting their demands in advance of any strike action, that would seem
to be a matter for legislative consideration. Section 7 of the Act establishes the
right of employees to engage in "concerted activities for the purpose of . . . mutual
aid or protection." The exercise of this right is not conditioned on the submission of
any prior demand to the employer.
Section 13 of the Act provides:
Nothing in this Act, except as specifically provided for herein, shall be con-
strued so as either to interfere with or impede or diminish in any way the right
to strike, or to affect the limitations or qualifications of that right.
However salutary would be such a limitation on the right to strike as the court
imposed in Washington Aluminum, I believe that Section 13 of the Act precludes it.
It is possible to conceive of a case where employees walk out of a plant and engage
in picketing for reasons unknown to the employer and which they refuse at any
time to divulge to him. In fact, that appears to be what happened in the Ford Radio
case supra, as the court viewed the facts. Such a case may well arouse administra-
tive or judicial ire. However, that is not this case. Here, Respondent was informed
within a matter of minutes after the walkout of the reason therefor, and the very
next day rejected an overture by one of the strikers looking toward adjustment of the
strikers' grievance or grievances.la
1e The General Counsel contends that the discharge occurred about 12.30 pin. on May 8,
when as already found, one of the Jublous, after conversing with Haekleton , announced
that the strikers were "done." However, I credit Mr Jublou's testimony that he told
both Carr and Hackleton at that time to go back to work and he would get the matter
"straightened out." Accordingly, whatever else he may have said at that time, I do not
believe that Jublou finally decided to terminate the strikers until a few hours later when
he admittedly told Martin, upon his refusal to return to work, that Jublou would con-
sider that he had quit The announcement to Lee at 5 p.m. that day promulgated this
decision as to the other claimants.
17114 NLRB 121, enfd. 237 F. 2d 521 (C.A. 8).
1BThe General Counsel contends that any prior demand or complaint was excused in this
case because of its apparent futility. He points to the evidence that Mrs. Jublou coupled
her announcement of the no-smoking rule with the admonition that those who did not
like it could look for other employment However, there was no testimony that this
admonition or its equivalent was addressed to more than three of the claimants (Ronald
Shafer, Lord, and Hockenbury) nor was there any testimony that such admonition
accounted for the failure of any of the claimants to protest the no-smoking rule before
the walkout. Upon this state of the record, I do not believe that the General Counsel
has sufficiently proved that the claimants' failure to make such protest was due to a
conviction that it would be futile to do so. The record warrants the inference only that
they believed that a protest by them while at work would be less effective than one made
by a union on their behalf while they were on strike.
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly , I find that the claimants engaged in protected concerted activity
when they walked out on May 8.
As to Respondent's final contention-that it at no time discharged the claimants,
but merely replaced them, as it claims it was privileged to do-I have already set
forth my reasons for regarding Jublou's statement to Lee on May 8 as effecting
the termination of the claimants . Moreover , the Jublous ' constantly reiterated state-
ments, and the admission in ,the answer , that the claimants were regarded as having
quit amply attest that the Respondent regarded the employment relation of the
claimants as having been permanently severed . Since it has been found that such
severance was not in fact effected by any voluntary quit , there remains no alternative
but to find that it was effected solely by the action of the Respondent.
In conclusion , I find that the Respondent on May 8 discharged the claimants for
engaging in protected concerted activity , thereby violating Section 8 (a)(3) and (1)
of the Act, and that its disregard of the request of May 25 for reinstatement similarly
violated the Act.
2. Case No. 4-RC-4619
In the order of the Acting Regional Director consolidating the instant cases for
hearing, I was authorized to resolve , in addition to the issues in Case No. 4-CA-2369,
the issues raised in Case No. 4-RC-4619 , by the challenges to 22 ballots cast in the
election held on August 21, 1961 , of which 11 were cast by individuals who partici-
pated in the strike beginning on May 8 10 and 11 by their replacements . As I have
found that all the claimants were unlawfully discharged on May 8 , 1 find that the 11
claimants whose ballots were challenged were eligible to vote on August 5, ,the
applicable eligibility date,20 and that the challenges to their ballots should be over-
ruled . As the 11 replacements whose ballots were challenged were hired as a conse-
quence of the Respondent 's unfair labor practice in discharging and refusing to
reinstate the claimants , I find them ineligible to vote, and sustain the challenges to
their ballots.21
The Respondent contends that the election was invalid because a sufficient show-
ing of interest was not submitted to the Regional Director by the Union and the
waiver of such a showing in Section 8(b)(7)(C ) of the Act is not applicable here
The short answer to this contention is that this issue was not referred to me by the
Acting Regional Director , and I therefore have no authority to consider it.
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 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 commerce
and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent engaged in unfair labor practices in
violation of Section 8(a)(3) and ( 1) of the Act , it will be recommended that the
Respondent cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
19 The 11 comprised all the claimants , except Carr and Langley
21 Even if the claimants be viewed as permanently replaced economic strikers, they would
still be eligible to vote under Section 9 (c) (3) of the Act.
Respondent contends that Hackleton , one of the challenged voters, was on indefinite
"leave of absence" on the eligibility date , and therefore not eligible to vote The record
shows only that Hackleton on May 12 told Mrs Jublou that he planned to enter the "halt
business ," that after July 1 he did engage In that business for 2 days a week He testified,
and I find, that if he had continued to work for the Respondent he would have engaged in
that business only outside of his regular working hours There Is accordingly insufficient
basis for Inferring that, absent his discharge, he would have quit or taken an indefinite
leave of absence, or that he did not desire reemployment on the eligibility date (While
his name does not appear on the list of claimants whose reemployment was requested on
May 25, by the Union , the reason for such omission was not litigated There Is an intima-
tion in the Respondent 's brief that Hackleton's name unlike that of the other claimants,
did not appear on the "eligibility list for the election ," but no evidence was adduced at
the hearing to that effect.)
21 See Bear Brand Hosiery Co., 40 NLRB 807, 808 It Is accordingly unnecessary to
determine to what extent , if any, these 11 were pel manent replacements for the claimants
POTTSVILLE COMMUNITY HOTEL CO., INC. 463
It has been found that the Respondent on May 8 , 1961, discriminatorily discharged
the employees whose names are set forth in Appendix B. I will recommend that the
Respondent be required to offer all of them except Carr and Hackleton 22 immediate
and full reinstatement to their former or substantially equivalent positions , without
prejudice to their seniority or other rights and make them whole for any loss of
pay suffered as a result of the discrimination against them by payment to them of a
sum of money equal to the amount they would have earned from the date of their
application for reinstatement 23 to the date of Respondent's offer of reinstatement,
less net interim earnings , to be computed on a quarterly basis in the manner estab-
lished by the Board in F. W . Woolworth Company, 90 NLRB 289 . Actual earnings
in any particular quarter shall have no effect upon the backpay liability for any
other such period . It will also be recommended that the Respondent preserve and
make available to the Board , upon request , payroll and other records to facilitate
the computation of the backpay due.
As the unfair labor practices committed by the Respondent .are of a character
striking at the root of employee rights safeguarded by the Act, it will be recom-
mended that the Respondent cease and desist from infringing in any manner upon
the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I adopt the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of .the Act.
2. By discriminating in regard to the hire and tenure of the employees listed in
Appendix B, the Respondent has engaged in unfair labor practices within the meaning
of Section 8(a) (3) and ( 1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication. ]
r, As to Carr and Hackleton , see footnote 23.
n As the claimants were on strike when discharged , they are entitled to backpay only
from the date that they validly applied for reinstatement . I find that such date for all
the claimants , except Carr and Hackleton, was May 26 , 1961 , when the Respondent re-
ceived a letter from counsel for the Union unconditionally requesting reinstatement of
all the claimants , except Carr and Hackleton. As for Hackleton , there was no evidence
that he has as yet applied for reinstatement. Accordingly , he must be deemed to be still
on strike, and his right to reinstatement and backpay will run from the date that he
makes such application . As for Carr , as already noted, he testified that if he had not been
discharged on May 8, he would have quit, in any event , on May 12. It follows that even
if be should hereafter apply for reinstatement , he would not be entitled thereto or to any
ba.ckpay, by reason of his discriminatory discharge.
Pottsville Community Hotel Co., Inc. and Bartenders, Hotel and
Restaurant Employees Union , Local 391, AFL-CIO. Case No.
4-CA-f394. March 21, 1962
DECISION AND ORDER
On November 30, 1961, Trial Examiner James V. Constantine is-
sued his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had engaged in and is engaging in the unfair
labor practices alleged in the complaint and recommending_ that he
,cease and desist therefrom and take certain affirmative action, as
set forth in the Intermediate Report attached hereto. Thereafter,
the Respondent filed exceptions to the Intermediate Report and
13.6 NLRB No. 43.