Dorsey Trailers, Inc.

National Labor Relations Board - Board Decisions

Nov 22, 1948

80 N.L.R.B. 478 (N.L.R.B. 1948)

In the Matter of DORSEY TRAILERS, INC. and INTERNATIONAL UNION7
UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, LOCAL 773, C. 1. O.
Case No. 15-C-1315.-Decided November 02, 1948
DECISION
AND
ORDER
On September 10, 1947, Trial Examiner John H. Eadie 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 Inter-
mediate Report attached hereto.' He also found that the Respondent
had not engaged in certain other unfair labor practices alleged in the
complaint and recommended dismissal of those allegations. There-
after the Respondent and the Union filed exceptions to the Inter-
mediate Report and supporting briefs. The Respondent's request
for oral argument is hereby denied, because the record and briefs, in
our opinion, adequately present the issues and positions of the parties.
The Board has reviewed the rulings of 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 recommen-
dations of the Trial Examiner, except insofar as they are inconsistent
with the Decision and Order herein.
1. It is undisputed that Boutwell, a union steward, was given a
3-day disciplinary lay-off in January 1946 for attending to a grievance
on company time, arising out of Respondent's failure to pay the con-
tract premium rate for holiday work. The Trial Examiner found
that Boutwell's conduct was in accordance with the collective bargain-
I The provisions of Section 8 (1) and ( 3) of the National Labor Relations Act, which
the Trial Examiner found were violated , are continued in Section 8 (a) (1) and 8 (a) (3)
of the Act, as amended by the Labor Management Relations Act, 1947.
80 N. L. R. B., No. 89.
478
DORSEY TRAILERS, INC. 479
ing agreement, but recommended dismissal of that allegation of the
complaint, on the ground that Boutwell had failed to utilize the
grievance machinery of the contract to protest his lay-off. We agree
that this allegation should be dismissed, but for different reasons.
Contrary to the Trial Examiner, we do not find that Boutwell's con-
duct was in accordance with and protected by the contract. Under its
terms, Boutwell, as a union steward, was privileged to use company
time for union business only in connection with Step 1 of the griev-
ance machinery? It is clear from the record that Boutwell left his
department without the permission of his foreman in connection with
a dispute which had not yet reached the first step of the grievance
procedure .3 We accordingly find that the Respondent was privileged
to discipline Boutwell for his unauthorized use of company time for
union business, and shall dismiss that allegation of the complaint.
2. The Trial Examiner found, and we agree, that in May 1946, the
Respondent locked out its employees for 4 days to penalize them for
engaging in a short spontaneous strike arising over the disciplinary
action of the Respondent against employee Robbins for violating a
no-smoking rule. However, the Trial Examiner recommended that
this allegation of the complaint be dismissed, because the "Union did
not see fit to exhaust its remedies under [the grievance and arbitration
provisions] of the contract." We do not agree with the Trial Exam-
iner's recommendation.
It is axiomatic that employees' right to strike is guaranteed and
protected by the Act and that employers are enjoined from penalizing
employees for exercising that right, unless the strike itself be viola-
tive of the Act or the collective bargaining agreement. In the instant
case, the contract then in effect did not contain a no-strike clause,
although it did provide for a grievance procedure. The strike was
lawful in all other respects. We accordingly find that the employees
were discriminatorily locked out by the Respondent for 4 days in
violation of Section 8 (3) and (1) of the Act and that it will effectu-
2 Supplement 1, Art. 3 of the 1945 contract provides as follows :
The Company agrees to pay committeemen at their regular straight time rate for
the handling of grievances in the first step of the grievance procedure . The amount
of time that may be used by a Committeeman for this purpose shall not exceed one
hour per day averaged over the week with the understanding that this privilege will
not be abused , and that committeemen will devote such time to the prompt handling
of legitimate grievances. [Italics supplied.]
Step 1 : Any employee or group of employees having a grievance shall present the
grievance to the foreman, with or without the Department Committeeman at the em-
ployee's option . If the Committeeman is requested by the employee , such request shall
be made known to the foreman ; the foreman will then get the Committeeman and he will
negotiate with the foreman in an attempt to adjust the matter satisfactorily. If the
grievance is not adjusted satisfactorily with the foreman , it shall be reduced to writing
on forms provided by the Company and signed by the employee involved, the Committee-
man and the foreman.
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ate the policies of the Act, as ordered below, to award back pay to the
locked-out employees for the period in question.4
We emphasize, however, that we, no less than our dissenting col-
league, Member Gray, recognize the legal and moral obligation of
parties to abide by the terms of a collective agreement. Indeed, this
view has been the basis of a line of Board cases denying relief to
employees who violate an agreement not to strike.5 Our difference
with the dissenter goes to the question of whether this strike was in
fact violative of the agreement. The view of the dissent that the
employees violated their agreement by resorting to strike action in-
stead of first using the grievance procedure of the contract, is based
on the premise, here advanced for the first time, that a provision for
grievance procedure in a contract includes an "implied covenant" not
to strike. We do not agree. A grievance procedure is designed, of
course, to afford the employees a peaceful avenue for attempting to
settle disputes with employers. In practice, generally, it operates as
an effective deterrent of strikes. It is indeed regrettable that the em-
ployees here involved elected to resort to strike action. But the fact
that the grievance procedure did not have the desired effect in the
instant case is no reason to conclude that the employees as a matter of
law had no right to strike. The entire scheme of statutory collective
bargaining contemplated by the Act was designed to eliminate strikes
and industrial unrest, but the Congress nevertheless specifically pre-
served and protected the right to strike.6
It is well recognized that the right to strike may be waived through
a no-strike clause in the collective bargain. We have no reluctance
in denying the protection of the Act to employees who strike in the face
of such a commitment. But we are unwilling to visit this extreme
penalty upon employees and thereby deprive them of a right guaran-
teed by the Act, in the absence of a clear showing of such a waiver by
them. We find no waiver in this case. Admittedly, the 1945 contract
did not contain a no-strike clause; no showing was made that the em-
ployees agreed or intended that disputes would be resolved only
* Member Murdock would not award back pay to the employees for this period because
the Union , acting in their behalf , not only admitted that they were "in the wrong" but
agreed with the Respondent that the 4 -day lay -off was a reasonable penalty. In effect,
the grievance over the Respondent 's proposal to impose a 2-week lay -off was thus settled
through collective bargaining . Member Murdock believes , therefore , that the policies
of the Act would be better served by leaving the situation undisturbed . He agrees, how-
ever with the majority ' s conclusion that the contract in effect at the time of this strike
did not contain a no-strike clause , express or implied.
5 Matter of Scullin Steel Co , 65 N. L. R. B . 1294 ; Matter of Joseph Dyson cE Sons, 72
N. L R B 445; Matter of Fafnir Bearing Co ., 73 N. L. R B. 1008 . See also N. L. if. B.
v. Sands Mfg . Co, 306 U. S. 332.
6 Section 13 of the Act provides : "Nothing in this Act, shall be construed so as either to
interfere with or impede or diminish in any way the right to strike , or to affect the limita-
tions or qualifications on that right."
DORSEY TRAILERS, INC. 481
through the grievance procedure. To suggest that a grievance proce-
dure in a contract also constitutes a no-strike commitment is to ignore
the real and practical aspects of collective bargaining as developed
over the years. Traditionally, grievance clauses are demanded by
the bargaining agent for the benefit of employees, and no-strike pro-
visions by the employer for its own protection. That these two types
of clauses , when not used jointly, have a different and distinct meaning
in the field of industrial relations, and that this was understood by
the parties hereto, is established by the very record in this case. The
1945 contract contained only the grievance provisions, while the 1946
contract contained in addition a no-strike clause, to be discussed below.
We are unprepared to say that the inclusion of the no-strike clause
was mere surplusage.? On the contrary, we believe that it established
a definite and new obligation on the employees, which was not in the
first contract and may well have been the quid pro quo for the grant
of union security by the Respondent in the 1946 contract.8
3. The Trial Examiner found, and we agree, that under the circum-
stances set forth below, the Respondent did not discriminatorily lock
out the night shift on the evening of November 19, 1946.
As fully set forth in the Intermediate Report, a dispute arose be-
tween the Union and the Respondent as to whether, under the terms
of their agreement, employee Hudson, as well as others,9 should be
paid immediately the contract rate for the new job classification to
which he had been promoted. The Union unsuccessfully processed
the Hudson grievance through all four steps of the grievance proce-
dure, as required by the contract. On the afternoon of November 19,
1946, the Union held a meeting to consider strike action on the Hud-
son grievance. The night shift met at about 2 p. in., and after voting
to strike, decided to continue the meeting so that the day shift could
attend and participate in the vote. At about 3: 15 p. m., Union Pres-
ident Nevels notified the Respondent that the night shift was being
7 A recent survey of some 1 , 300 collective bargaining agreements shows that practically
all such agreements contain grievance procedures , while only 80 percent also contain no-
strike clauses See 22 L R R M 283.
8 We are unable to agree with Member Gray that the holding of the Supreme Court in
N. L. R B. v . Sands Manufacturing Company, 306 U. S . 332, supports his view. In the
Sands case the employees struck to compel the employer to violate the express terms of
their contract. leaving the employer with "no alternative but to operate the plant in the
way the men dictated , in the teeth of the agreement , or keep it closed entirely , or have a
strike " ( 306 U S , at p 343 ) In the present case, however , the employees were seek-
ing not to change the terms of the contract , but merely to compel the Respondent to
recognize the validity of their grievance As the grievance itself involved no demand in-
consistent with the substantive terms of the contract and as this contract did not explicitly
retrict the employees ' right to strike, their refusal to work did not constitute a "repudia-
tion" of their agreement , within the meaning of the Sands case.
9 The evidence is uncontradicted that there were some 75 to 100 employees affected by
the Hudson grievance. which was brought as a test case.
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
held over because of this meeting and would report for work at 6 p. m.,
2 hours later than the usual reporting time.
Resolving a conflict in testimony, the Trial Examiner found, as do
we, that Prescott, the Respondent's superintendent, advised Nevels
that because the men would not report at the regular time, the plant
would be closed that night, but that the men could report the next
day. The combined shifts then voted, 148 to 119, not to strike. Despite
Prescott's message , Nevels instructed the night shift to report for
work at 6 p. m., to demand 2 hours' reporting pay if they were not
permitted to work, and if this demand was not granted, then to picket
the plant.
When the night shift arived at the plant, they found that the gates
were closed. Prescott spoke to the men and told them that he had
informed Nevels there would be no work that night, and that he was
surprised the men did not get his message. A request was made for
2 hours' reporting pay, and Prescott replied that he could not give an
immediate answer. In protest, pickets were immediately placed
around the plant. On the following morning, November 20, the day
shift, instead of reporting for work at the plant, joined the picket line.
The picketing continued until November 26, when all employees aban-
doned their concerted activity and unconditionally offered to return
to work.
We agree with the Trial Examiner that there was economic justifica-
tion for the Respondent's decision, of which the Union had advance
notice, to call off the night shift on the afternoon of November 19
rather than operate it on a part-time basis to suit the Union's con-
venience. We also find on the basis of the entire record that, at least
from November 20 to November 26, the employees were engaged in an
economic strike and wilfully abstained from working. We further
find, as did the Trial Examiner, that the immediate cause of the strike
was the Respondent's failure to grant the 2 hours' reporting pay on
November 19, and not the Hudson grievance over which the men had
voted not to strike.
4. The Trial Examiner found, and we agree, that inasmuch as the
employees struck over the reporting pay dispute without first exhaust-
ing the grievance procedure, the strike was violative of the terms of
the 1946 collective bargaining agreement 10 However, the Trial Ex-
aminer further found that the Respondent had previously breached
the agreement by its substantive disposition of the Hudson grievance
and concluded, in effect, that such breach constituted legal justification
10 Clause 18d of the agreement is as follows :
The Union agrees that it will not cause nor sanction any slow down or work
stoppage before the grievance machinery has been exhausted.
DORSEY TRAILERS, INC. 483
for the employees' subsequent breach of the no-strike clause. Whether
the Respondent violated the contract in connection with the Hudson
grievance, is indeed a close question which we are not called upon to
decide. It was not the Hudson matter, but intervening events, that
caused the strike. Therefore, in our opinion, the former could not
excuse the employees from honoring their no-strike commitment. We
are not here required to, nor do we, decide whether a different result
would obtain had the strike actually been caused by the employer's
prior breach of the collective agreement.
5. The Trial Examiner found that the delay in reopening the
plant from November 26, when the employees offered to return to
work unconditionally, to January 6, was due to economic reasons
and therefore not unlawful, but that the failure on January 6 to
reinstate the three union officers, Nevels, Logan, and Boutwell, be-
cause of their leadership in the strike was in violation of the Act.
We agree with the Trial Examiner's conclusions, but only for the
following reasons :
Unlike the Trial Examiner, we deem it immaterial whether the
Respondent delayed opening the plant for economic reasons or to
discipline the employees for striking, because of our finding that
the strike was violative of the contract. Such a strike constitutes a
form of unprotected activity; consequently the Respondent's delay
in reopening the plant could not here be the basis of an unfair labor
practice. While it is also true, as the Respondent argues, that it
had the legal right to discharge any or all of the strikers because
they struck in violation of the contract, we do not believe that such
a defense is now available to the Respondent respecting its refusal
to reinstate Nevels, Logan, and Boutwell on January 6.
The employee status of strikers, within the meaning of the Act,
is not automatically severed because a strike is in violation of their
agreement; but such status may be terminated by affirmative and
timely action of their employer." However, after the abandonment
of the strike in the instant case, the Respondent did not seek to dis-
charge the complainants because of their leadership in the strike,
but instead at all times material treated them as employees tempo-
rarily unemployed for lack of work. Thus, in response to the strikers'
unconditional offer to return to work on November 26, the Respondent,
without qualification or exception, stated that it was "unable to put
the men to work and resume operations" at that time because of
certain temporary conditions. About a month later, on December 30,
the Respondent announced that the plant would reopen on January 6,
I' Matter of Fafnir Bearing Co ., 73 N. L. R. B. 1008.
817319-49-vol. 80-32
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notifying some 100 employees to report for work on that date. At
the same time, the Respondent mailed to these individual complain-
ants cards, reading :
DEAR Sm : While it is proposed that operations will be resumed
on Monday, January 6th, materials are not available in sufficient
quantities to resume full production schedule. In view of this
fact, you should not report to work unless you receive notice
to do so.
Notwithstanding such an implied acknowledgment by the Respond-
ent that the complainants were not disqualified for employment by
reason of their strike activity and such specific recognition of their
continuing employee status, which was at least equivalent to that of
a temporary laid-off employee, these complainants were never recalled
for work. At the hearing, the Respondent did not seek to justify
its refusal to reemploy the complainants on the ground of lack of
work, but asserted for the first time that they were not recalled
because of their leadership in the strike.
Under all the circumstances, we are convinced that the Respondent
by its own actions had condoned the complainants' breach of their
contractual obligations and waived the right to discharge or refuse
to reinstate such persons because of the character of the strike.12
Accordingly we find, as did the Trial Examiner, that the Respondent
refused to reinstate the complainants on January 6 and thereafter
because of their leadership in the strike, in violation of Section 8 (3)
of the Act.
6. The Trial Examiner found that the record failed to establish
that the Union on and after November 22, 1946, was the duly desig-
nated representative of a majority of employees in the appropriate
unit and for that reason dismissed the refusal-to-bargain allegation
of the complaint. We do not agree.
On May 16, 1945, pursuant to the results of a Board election, the
Union was certified as the statutory representative. On September
17, the parties entered into a 1-year contract, containing no union
security provision. Following the expiration of this contract, on
September 26, 1946, the parties executed a second contract for a year
term, containing a union security provision. Beginning November
22, 1946, the Respondent, without questioning the Union's majority,
refused to bargain with the Union because the strike was violative of
the agreement. Contrary to the Trial Examiner, we believe that the
Union's certification was still effective on and after November 22,
1946, even though it was then about a year and a half old. It is well
12 Matter of Fafnir Bearing Co., supra
DORSEY TRAILERS, INC. 485
settled that such certification clothed the Union with status as exclu-
sive bargaining agent, and that "under general principles and for the
purposes of practical administration of the Act, such status is pre-
sumed to continue until shown to have ceased or until such time as
circumstances arise which indicate that the presumption no longer
holds true." 13
Nor do we agree with the Trial Examiner that the record warrants
a finding that the Union's presumptive majority should not be given
continued effect. The circumstances relied upon by the Trial Exam-
iner do not provide sufficient reason to believe that a majority of the
employees had repudiated the Union at times here material. On the
contrary, there is affirmative evidence that substantially all employees
were members of the Union at the time of the strike 14 Moreover,
less than 2 months before the strike, on September 26, 1946, when the
second contract with the Union was executed, the Respondent itself
in effect conceded that the Union still had a majority.15 Indeed,
under established Board precedent, this contract would normally be
regarded as a bar to a representation proceeding arising at the time of
the strike and would therefore necessarily preserve the Union's major-
ity status as of that time.16
Under all the circumstances, we find, contrary to the Trial Exam-
iner, that on November 22, 1946, and at all times thereafter, the Union
represented a majority of all the Respondent's employees in the unit
heretofore, in the prior consent election proceeding, and herein found
appropriate for the purposes of collective bargaining.17
7. The Respondent concedes that on November 22, 1946, and at all
times thereafter, it has refused to bargain collectively with the Union,
contending that this was justified because the strike was in violation
of the contract.
On November 22, during the life of the strike heretofore found to
have been violative of the contract, the Union requested the Respond-
ent to bargain in order to "settle the strike," as found by the Trial
13 Matter of Bethlehem Steel Company , 73 N. L R B. 277, involving a certification 21
months old at the time of the refusal to bargain.
14 While we do not give controlling significance to this evidence standing alone, because
of the union security provision in the contract , we do not agree with the Trial Examiner
that the McGough case ( 58 N. L . R B 849 ) is here apposite , as it involved a factual situa-
tion entirely different from the one in the instant case
15 With respect to the Respondent's increase in personnel between the date of the certifica-
tion and the strike, mentioned by the Trial Examiner , it is noted that no showing was made
that this expansion occurred after the second contract was executed.
19 See, i e , Matter of Reed Roller Bit Co , 72 N. L. R B 927.
17 The unit hereby found appropriate consists of all the employees of the Respondent's
plant at Elba, Alabama , excluding plant guards , watchmen , sales and collection personnel,
clerical employees , and supervisors.
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner ."' Under the holding in the Reed case,19 we agree with the
Respondent that it was then under no obligation to bargain with the
Union concerning the settlement or cause of the wrongful strike.
However, this does not mean that wrongful strike action by the
employees extinguished permanently the employer 's statutory obliga-
tion to bargain , but rather that such obligation to bargain , at least
with respect to the settlement or causes of the strike itself, was merely
suspended during the life of the wrongful strike. In our opinion, the
policies of the Act impel the conclusion that the obligation to bargain
may again become operative as soon as the employees correct their
wrongful action.
In the instant case , on November 26, 1946, the employees abandoned
their wrongful strike and offered unconditionally to return to work.
While their actual reinstatement was temporarily delayed admittedly
for economic reasons, their status as employees , as found above, re-
mained unimpaired . In these circumstances, we find that at all times
after November 26 the Respondent was obligated to bargain, upon
request , with the Union . The record shows that after November 26,
the first request to bargain by the Union was made on December 31,
1946 , when the Union sought to bargain with respect to the grievances
of Nevels, Boutwell, and Logan, and the Respondent unequivocally
refused.
We accordingly find that the Respondent , by refusing on and after
December 31 , 1946, to bargain collectively with the Union as the
exclusive representative of the employees in the appropriate unit,
violated Section 8 ( 5) of the Act . To remedy this violation, we find
in accordance with established practice , that the policies of the Act
can only be effectuated by requiring the Respondent to bargain collec-
tively with the Union , and we shall so order.
8. The Examiner found, and we agree, that Respondent violated
the Act by its participation in the assault on a union representative.
The events leading to this assault are accurately set forth in the
Intermediate Report . The Respondent offered no evidence in defense
of this action , except to state that the men whom the Respondent's
assistant superintendent hired to do the beating were employees of
irresponsible character . A more flagrant violation of the Act would
be difficult to find.
18 No exception was taken to this factual finding and the record fails to indicate that the
Union sought to bargain on any matter other than the strike.
19 Matter of Charles E. Reed & Co., 76 N. L. R. B. 548 (Chairman Herzog not participat-
ing).
DORSEY TRAILERS, INC. 487
Additional Conclusions of Law
1. All the Respondent's employees at Elba, Alabama, excluding
plant guards, watchmen, sales and collection personnel, clerical em-
ployees and supervisors, constitute a unit appropriate for the purpose
of collective bargaining, within the meaning of Section 9 (b) of the
Act.
2. International Union, United Automobile, Aircraft and Agricul-
tural Implement Workers of America, Local 773, affiliated with the
C. I. 0., was on November 22, 1946, and at all times thereafter has
been, and now is, the exclusive representative of the Respondent's
employees in said unit for the purpose of collective bargaining, within
the meaning of Section 9 (a) of the Act.
3. By refusing on December 31, 1946, and at all times thereafter,
to bargain collectively with International Union, United Automobile,
Aircraft and Agricultural Implement Workers of America, Local 773,
affiliated with the C. I. 0., as the exclusive representative of its em-
ployees in the appropriate unit, the Respondent has engaged in and
is engaging in an unfair labor practice, within the meaning of Section
8 (5) of the Act.
4. The aforesaid unfair labor practice is an unfair labor practice
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
ORDER 20
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Dorsey Trailers, Inc., and
its officers, agents, successors and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in International Union, United
Automobile, Aircraft and Agricultural Implement Workers of
America, Local 773, C. I. 0., by laying off, discharging or refusing
to reinstate any of its employees, or in any other manner discriminat-
ing in regard to their hire and tenure of employment or any term or
condition of their employment;
(b) Refusing to bargain collectively with International Union,
United Automobile, Aircraft and Agricultural Implement Workers of
America, Local 773, C. I. 0., as the exclusive representative of all the
Respondent's employees at Elba, Alabama, excluding plant guards,
watchmen, sales and collection personnel, clerical employees, and
supervisors;
10 For the reasons stated in footnote 4 supra, Member Murdock does not concur in
paragraph 2 (c) of this Order.
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist International Union, United
Automobile, Aircraft and Agricultural Implement Workers of Amer-
ica, Local 773, C. I. 0., or any other labor 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 protection, as guaranteed in Section 7 of the
Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer Jim Nevels, Ben Logan, and Leavy Boutwell immediate
and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights and
privileges;
(b) Make whole Jim Nevels, Ben Logan, and Leavy Boutwell for
any loss of pay they may have suffered by reason of Respondent's
discrimination against them, by payment to each of them of a sum
of money equal to the amount that he would normally have earned
as wages during the period from January 6, 1947, to the date of
Respondent's offer of reinstatement, less his net earnings during said
period;
(c) Make whole the employees locked out on or about May 7, 1946,
for any loss of pay they may have suffered by reason of Respondent's
discrimination, 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 4-day period of the lock- out, less his net earnings during said
period;
(d) Upon request, bargain collectively with International Union,
United Automobile, Aircraft and Agricultural Implement Workers
of America, Local 773, C. I. 0., as the exclusive representative of all
its employees in the aforesaid appropriate unit with respect to rates
of pay, wages, hours of employment, and other conditions of em-
ployment, and, if an understanding is reached, embody such under-
standing in a signed agreement;
(e) Post at its plant at Elba, Alabama, copies of the notice attached
hereto and marked "Appendix A." 2' 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 the Respondent immediately upon receipt thereof, and maintained
' In the event that this Order is enforced by decree of a United States Court of
Appeals, there shall be inserted in the notice , before the words : "A DECISION AND
ORDER" the words : "A DECREE OF THE UNITED STATES COURT OF APPEALS
ENFORCING."
DORSEY TRAILERS, INC. 489
by it for sixty (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;
(f) Notify the Regional Director for the Fifteenth Region in writ-
ing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply therewith.
AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges
that the Respondent discriminatorily laid off Leavy Boutwell on
January 2, 1946, discriminatorily locked out its employees on Novem-
ber 19, 1946, and discriminatorily discharged John Henry Stephens
on February 3, 1947, be, and it hereby is, dismissed.
MEMBER HOUSTON, dissenting in part :
I concur in so much of the decision in this case which finds that
the Respondent violated Section 8 (a) (3) of the Act by locking
out all its employees in May 1946 and by refusing to reinstate the
three named complainants on January 6, 1947, and Section 8 (a) (5)
by refusing to bargain with the Union. I must note, however, my
disagreement with the construction placed by my colleagues upon
the evidence adduced in respect to the issue as to whether the Union
violated its contract in striking on the evening of November 19, 1946,
and thereafter. In this connection, I am convinced that the strike
was substantially caused by the Hudson grievance rather than by
any controversy over the Respondent's refusal to grant call-in pay.
This being so, and without regard to whether the Respondent com-
mitted any breach of its contract, I would find that the strike did not
violate the agreement and, consequently, must be considered as legiti-
mate concerted activity entitling the participants to protection under
the Act.
MEMBER GRAY, dissenting in part :
Employee Robbins was discharged for smoking in violation of a
Company rule. In effect at the time was a collective bargaining
agreement covering the items customarily contained in such contracts,
including detailed grievance and arbitration provisions and a reserva-
tion to the Employer of the right to discharge "for proper cause" 22
with certain limitations not here material. The contract did not
contain any express provisions barring work stoppages during its
term. Instead of carrying the matter of Robbins' discharge through
the grievance procedure, the employees struck. (There is no claim
21 Article 9.
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Robbins' discharge was effected for discriminatory reasons, or
that it was not a proper subject for grievance proceedings under the
contract.), The Respondent was of the opinion that the strike con-
stituted a breach of the contract, whereupon it imposed a lay-off
penalty of 2 weeks on all employees. However, after conferring with
union representatives, the Respondent agreed to reduce the penalty
to 4 days. The Union accepted this modification, taking no further
action on the matter through the grievance machinery or otherwise.
The majority of the Board finds that the employees did not breach
the contract by engaging in the afore-mentioned strike; and they
conclude that the imposition of the penalty for such work stoppage
constituted a discriminatory lock-out within the meaning of Section
8 (1) and (3) of the Act. I am unable to accept the construction
of the contract upon which the majority's conclusion is founded.
Parties must assume responsibility for all their undertakings under
a contract. Neither party may, in good conscience, or as a matter of
law, abide by only those parts of a contract which it chooses to observe.
Conversely, neither party may destroy or impair the right of the
other party to a full enjoyment of the contract. The principal pur-
pose of a collective bargaining agreement is, as the Supreme Court
has stated, to stabilize labor relations and to prevent, through col-
lective bargaining, strikes and industrial strife.23 Labor and manage-
ment clearly manifest a desire to avoid the consequences of such
economic strife, where, as in the instant case, they prescribe grievance
and arbitration machinery for the orderly disposition of differences
arising between them. Both parties have a stake in these provisions;
and even though the contract in question does not expressly bar
work-stoppages, it may reasonably be implied that each party has
undertaken to comply with these procedures rather than use economic
pressure to settle questions arising under the contract. As the Texas
Court stated in Harper v. Local Union No. 520, I. B. E. W., 48 S. W.
(2d) 1033,1040-1041:
... its (the collective agreement) very purpose and object was
to prescribe terms under which the members of the union would
work and the contractors would employ. It was, therefore, we
think a necessarily implied term of the agreement that the
union, its officers and members, would collectively abide by the
terms of the agreement, and would not collectively or as an organi-
zation exercise any right or do any act it or they might otherwise
lawfully exercise or do, which was in conflict with any terms of
the agreement; and that the union would enforce the contract
11 H. J. Heinz Co. V. N. L. R. B , 311 U. S. 514, 524.
DORSEY TRAILERS, INC. 491
to the extent of its powers over its members under its constitu-
tion and by-laws. Clearly, we think, what the contractors were
bargaining for, and what they obtained under the agreement, was
freedom from industrial dispute, strike, or collective adverse
action on the part of the union, its officers, and its members during
the term covered by the agreement.
The Supreme Court itself has held, in effect, that collective bargain-
ing agreements contain an implied covenant to render service upon
the terms prescribed. Thus, in the Sands case 24 the contract in ques-
tion did not contain a no-strike clause ; on the contrary, it specifically
reserved the right to strike. A dispute arose between the parties
during which the contracting union insisted that the employer operate
its plant in a manner different from that set forth in their contract.
The Union advised the Employer to cease operations unless the
Employer would accept the Union's conditions. On the other hand,
if the Employer would attempt to operate without acceding to the
Union's terms, a strike inevitably confronted it. The Employer there-
upon shut down temporarily, and upon resuming operations it hired
new employees to replace the jobs formerly occupied by the employees
represented by the Union. The Employer was thereafter charged,
and found by the Board, to have discriminatorily locked out the
Union employees. The Supreme Court reversed the Board's finding
and held, instead, that by refusing to work in accordance with their
contract, the Union employees breached their agreement and that the
Act did not prohibit the Employer from discharging them for such
repudiation.
By striking in the present case the employees also embarked on a
course of unilateral action, as the employees did in the Sands case,
rather than pursue the procedures established by the parties and
included in their agreement. This resort to a work-stoppage was, in
my opinion, the very conduct which the contract was intended to
avoid, and by so conducting themselves the strikers deprived the
Respondent of the substantial contract right of having disputes peace-
fully resolved. An agreement providing for the settlement of disputes
by grievance and arbitration procedure is not a license to use such
machinery merely when it be convenient to do so. Rather, it is a
covenant binding on Employer and employees alike, which, in this
case, the employees failed to respect.
I conclude that the strike in this case constituted a breach of
contract and, therefore, did not constitute a protected concerted
activity under the Act. Accordingly, I would find that the Respondent
" N. L. R. B. v. Sands Mfg. Co., 306 U. S. 332.
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
committed no unfair labor practices by disciplining the employees for
their own unlawful conduct.
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 in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist INTERNATIONAL
UNION UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IM-
PLEMENT WORKERS OF AMERICA, LOCAL 773, C. I. 0., or any other
labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or
protection.
WE WILL OFFER to the employees named below immediate and
full reinstatement to their former or substantially equivalent
positions without prejudice to any seniority or other rights and
privileges previously enjoyed, and make them whole for any loss
of pay suffered as a result of the discrimination.
Jim Nevels
Ben Logan
Leavy Boutwell
WE WILL MAKE whole the employees locked out for 4 days on
or about May 7, 1946, for any loss of pay suffered as a result of the
discriminatory lock-out.
WE WILL BARGAIN collectively upon request with INTERNATIONAL
UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLE-
MENT WORKERS OF AMERICA, Local 773, C. I. O. as the exclusive
representative of all our employees in the bargaining unit de-
scribed herein, with respect to rates of pay, hours of employment
or other conditions of employment, and if an understanding is
reached, embody such understanding in a signed agreement. The
bargaining unit is :
All the Respondent's employees at Elba, Alabama, excluding
plant guards, watchmen, sales and collection personnel, clerical
employees, and supervisors.
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not
DORSEY TRAILERS, INC. 493
discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of mem-
bership in or activity on behalf of any such labor organization.
DORSEY TRAILERS, INC.,
Employer.
Dated---------------------- By---------------------------
(Representative ) ( Title)
NoTE.-Any of the above-named employees presently serving in the
armed forces of the United States will be offered full reinstatement
upon application in accordance with the Selective Service Act after
discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Mr. T. Lowry Whittaker, for the Board.
Mr. Bently Byrnes, of New Orleans, La., and Mr. J. C. Fleming, of Elba, Ala.,
for the respondent.
Mr. Thomas S. Adair, of Montgomery, Ala., and Mr. James P. Harden, of
Atlanta, Ga., for the Union.
STATEMENT OF THE CASE
Upon a second amended charge duly filed by International Union, United Auto-
mobile, Aircraft and Agricultural Implement Workers of America, Local 773,
C. I. 0., herein called the Union, the National Labor Relations Board, herein
called the Board, by its Acting Regional Director for the Fifteenth Region (New
Orleans, Louisiana), issued its complaint dated April 25, 1947, against Dorsey
Trailers, Inc., herein called the respondent, alleging that the respondent had
engaged in and was engaging in unfair labor practices affecting commerce within
the meaning of Section 8 (1), (3) and (5) and Section 2 (6) and (7) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the
complaint and notice of hearing were duly served on the respondent and the
Union.
With respect to the unfair labor practices, the complaint, as amended, at the
hearing,' alleges in substance (1) that the respondent on or about May 7, 1946,
and on or about November 19, 1946, closed its doors, refused work to and locked
out its employees; (2) that the respondent refused and failed to reinstate Jim
Nevels, Ben Logan and Leavy Boutwell,' on or about December 30, 1946; (3)
that the respondent on or about February 3, 1947, discharged John Henry
Stephens; (4) that the respondent from on or about January 1, 1946, laid off
Leavy Boutwell for 3 days; (5) that the respondent locked out its employees,
laid off said Boutwell, discharged said Stephens, and failed and refused to
reinstate said Nevels, Logan, Boutwell and Stephens, because of their member-
' Counsel for the Board moved to amend the complaint so as to allege the lock-out
of employees on May 7, 1946, and the lay-off of Leavy Boutwell on January 1, 1946.
The motion was granted over the respondent's objection.
2 The complaint incorrectly shows Boutwell 's given name as Levy.
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ship in and activities on behalf of the Union and because of their concerted
activities; (6) that on about May 11, 1945, September 26, 1946, and November 22,
1946, and at all times thereafter, a majority of the employees in an alleged
appropriate unit designated and selected the Union as their representative for
the purposes of collective bargaining; (7) that the respondent on or about
November 22, 1946, and at all times thereafter, has failed and refused to recog-
nize and to bargain collectively with the Union as the exclusive representative
of its employees in the alleged appropriate unit; and (8) that by these acts,
and from on or about November 19, 1946, by other specified activities hostile to
the Union, the respondent interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
On or about May 16, 1947, the respondent filed an answer wherein it admitted
certain allegations of the complaint as to the nature and extent of its business,
but denied the commission of any unfair labor practices.
Pursuant to notice, a hearing was held at Elba, Alabama,' from June 2 to
June 17, inclusive, before the undersigned Trial Examiner, duly designated by
the Chief Trial Examiner. The Board, the respondent and the Union were each
represented by counsel, and all participated in the hearing. Full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues was afforded all parties. At the conclusion of the evidence
counsel for the Board moved to amend the complaint to conform to the proof
as to non-substantive matters. The motion was granted over the respondent's
objection.
At the conclusion of the hearing, counsel for the Board, the respondent and the
Union presented oral argument before the undersigned. All parties were afforded
an opportunity to file briefs and/or proposed findings of fact and conclusions of
law. The respondent and the Union have filed briefs with the undersigned.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent is an Alabama corporation 4 with its principal office and plant
located at Elba, Alabama, where it is engaged in the manufacture of trailers for
automobiles and trucks.
In the course and conduct of its business, the respondent during the year
immediately preceding the date of the complaint herein purchased fabricated
steel, lumber, brakes, lights and other supplies and equipment worth in excess
of $2,000,000, of which value approximately 70 percent was shipped to its said
plant from points outside the State of Alabama ; and manufactured and sold
trailers worth in excess of $2,000,000, of which value approximately 70 percent
was transported from said plant to points outside the State of Alabama.
a Upon motion of counsel for the Union , the bearing was held for 1 day, June 12, at
Dothan, Alabama.
4 The corporation was organized on or about March 31, 1946. Prior to that date the
respondent was known as Dorsey Brothers or Dorsey Brothers Trailer Works. For the
purpose of this report both companies will be referred to as the respondent , since the
issues in the case do not require that they be distinguished.
DORSEY TRAILERS, INC.
II. THE ORGANIZATION INVOLVED
495
International Union, United Automobile, Aircraft and Agricultural Implement
Workers of America , Local 773, C. I. 0., is a labor organization which admits to
membership employees of the respondent.
III. THE UNFAIR. LABOR PRACTICES
A. Background
On about April 27, 1945, the respondent and the Union entered into an agree-
ment for a consent election. Pursuant to said agreement an election was con-
ducted by the Board on May 11, 1945. In this election 128 employees voted for
and 50 employees voted against the Union; and on the basis of this tally the
Board on or about May 16, 1945, certified the Union as the exclusive representa-
tive of all employees in the appropriate unit for the purposes of collective bar-
gaining. Thereafter and on or about September 17, 1945, the respondent and the
Union entered into a collective bargaining contract. This contract contained
grievance procedure, including an arbitration clause.
During July 1946, negotiations between the respondent and the Union for a
new contract broke down and the Union on about July 31, 1946, filed a notice of
intention to strike with the United States Department of Labor. One of the
questions upon which an impasse was reached was arbitration. The Union
demanded the same or a similar arbitration clause as that contained in the 1945
contract .5 Such an arbitration clause was not acceptable to the respondent.
However, the respondent in its counter-proposals to the Union submitted two
arbitration clauses which among other things provided, in substance, that the
arbitrator's decision be final unless appealed within a specified time "to a
Court of competent jurisdiction" and that all costs of arbitration be paid by the
party desiring arbitration. Both of these arbitration clauses were rejected by
the Union.
The Union and the respondent finally entered into a contract dated September
26, 1946. This contract contains a union shop clause and provides for check-off
of Union dues. It does not provide for arbitration unless both parties agree to
arbitrate. The contract contains a conditional no-strike clause as follows :
The Union agrees that it will not cause nor sanction any slow-down or
work stoppage before the Grievance machinery has been exhausted.
B. The alleged discriminatory lay-off of Boutwell
On January 1, 1946, some four or five employees worked on a construction job
for the respondent. For this work they were paid on a straight time basis, having
signed waivers of the provision in the contract calling for time and one-half for
6 The arbitration clause in the 1945 contract provided that the arbitrator's decision
be final and binding on the parties and further provided that all costs of arbitration
be shared equally between the Union and the respondent.
The contract also contains the following clause :
At the ratification meeting, the Union agrees that the no-strike, no stoppage, no
restriction of work clause shall be adopted as a by-law of the Local.
It is undisputed that the Union did not adopt such a clause as a by-law at the meeting
called to ratify the contract. Such a clause was adopted as a by-law, however, in
January 1947.
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
holiday work.? During the morning of the following day, Leavy Boutwell, chair-
man of the Union's shop or bargaining committee, spoke to the employees involved
concerning the possibility of filing a grievance for non-payment of the overtime
rate. Their discussion of this matter was protracted and occurred during work-
ing hours. Thereafter Boutwell discussed the grievance with his foreman,
Wallace Belcher. For this activity Boutwell received a lay-off of 3 days.
In substance, the respondent's reason for Boutwell's lay-off was that the terms
of the contract did not authorize him to solicit grievances during working hours
and that he was therefore improperly away from his work. It appears that no
grievance was filed over Boutwell's lay-off, or if one was filed, the grievance pro-
cedure in the contract was not exhausted. The undersigned believes that the
above activity of Boutwell was in accordance with and protected by the terms
of the contract, and that under all the circumstances the lay-off constituted a
harsh disciplinary measure, especially since it appears that the respondent did not
issue any prior warning against such activity. Nevertheless, in view of the fact
that the grievance procedure in the contract was not exhausted, it will be recom-
mended that this allegation of the complaint be dismissed. The undersigned is
of the opinion that to hold or recommend otherwise in this particular case would
not effectuate the policies of the Act 8
C. The alleged lock-out in May 1946
During the negotiations or at some time prior to the signing of the September
1945 contract, the respondent discussed with the Union a "no smoking" rule.
Such a rule, however, was not put into effect by the respondent until after the oc-
currence of a fire which caused considerable damage to the plant. It appears that
the fire took place about February 1946, and that the no smoking rule was posted
about the latter part of April ° Shortly after the posting of the rule or on about
May 6, 1946, the respondent disciplined employee Winfred Robbins for violation
of the rule.1° Immediately upon learning of this, Ben Logan, financial secretary
and treasurer of the Union, instructed James Nevels, chairman of the Union's
grievance committee, to blow the plant whistle, which was the signal for the
7 while the point is not material to the issues in the case, in the undersigned' s opinion
non-payment of the overtime rate clearly was a breach of the contract.
8 See Matter of Consolidated Aircraft Corporation, 47 N. L. R. B. 694, wherein on p. 706
the Board holds as follows :
. . . it will not effectuate the statutory policy of "encouraging the practice and pro-
cedure of collective bargaining" for the Board to assume the role of policing collective
contracts between employees and labor organizations by attempting to decide whether
disputes as to the meaning and administration of such contracts constitute unfair
labor practices under the Act. On the contrary, we believe that parties to collective
contracts would thereby be encouraged to abandon their efforts to dispose of disputes
under the contracts through collective bargaining or through the settlement procedures
mutually agreed upon by them, and to remit the interpretation and administration
of their contracts to the Board we therefore do not deem it wise to exercise our
jurisdiction in such a case, where the parties have not exhausted their rights and
remedies under the contract as to which the dispute has arisen
9 After an investigation into the causes of the fire, an insurance agency recommended
to the respondent that promiscuous smoking should not be permitted in the plant.
n' There is some testimony in the case by witnesses for the Board to the effect that a
number of employees, including some supervisors, were also smoking at the time that Rob-
bins was caught The undersigned believes this testimony to be immaterial to the issues,
since there is no contention or evidence that Robbins was discriminated against because of
his adherence to the Union.
DORSEY TRAILERS, INC. 497
cessation of work. Thereafter, the employees walked out of the plant in protest
over the respondent's disciplinary action against Robbins. The following day
James P. Harden, an International Representative of the Union, spoke to C. E.
Dorsey, Jr., president of the respondent, and advised him that the employees
were willing to return to work immediately. Dorsey replied in substance that
because of the employees' attitude of defiance the respondent would give them
a lay-off of 2 weeks. Later that same day the Union's grievance committee and
Harden met with Dorsey, at the request of the Union, and a compromise was
reached whereby the employees were to be laid off for the balance of that week
and the second week would be held in abeyance." The Union did not thereafter
resort to the grievance or arbitration procedure in the 1945 contract in connec-
tion with this general lay-off.
The Board contends that the respondent locked out its employees and thereby
discriminated against them within the meaning of Section 8 (3) of the Act. It
is undisputed that the employees were on strike for part of one day and that
they unconditionally offered to return to work the following morning. It is
also undisputed that the respondent refused to permit the employees to return
to work and that such refusal was dictated by a desire to punish them for their
concerted activities. The 1945 contract does not contain a no-strike clause. The
Board contends, in effect, that the Union was forced to compromise and accept
the lay-off of 4 days as it did not have any other alternative. The undersigned
disagrees with this contention, believing that the Union had ample protection
under the grievance and arbitration provisions of the contract. Since the Union
did not see fit to exhaust its remedies under the contract, the undersigned will
recommend, as in the case of Boutwell discussed above, that the complaint be
dismissed with respect to this allegation."
D. The alleged refusal to bargain; the alleged lock -out in November 1946
1. Chronology of events
As noted above, the Union and the respondent entered into a contract, dated
September 26, 1946. On November 15, 1946, there was a meeting of the Union's
grievance committee and representatives of the respondent. The meeting was
called for the purpose of considering "step four" grievances, and about four or
five of such grievances were involved." One of the grievances, that of employee
David Hudson, was brought by the Union as a test case.14 Hudson had been
promoted from the classification of "Metal Workers, Helper" to "Metal Workers,
General," but at the time of promotion his rate of pay was raised from 85 cents
per hour to only 90 cents per hour. For the latter classification the contract
specifies the rate of $1.00 per hour. The Union contended that Hudson should
11 It appears that at this meeting the Union admitted that the employees were in the
wrong but argued that a lay-off of 2 weeks was too severe a penalty.
12 See footnote 8, supra
13 The fourth step is the final step of the grievance procedure set forth in the 1946 con-
tract. Witnesses for the Board testified to the effect that only three grievances were taken
up at the meeting and that none of them were settled satisfactorily . Witnesses for the
respondent testified that there were five grievances and that apparently they were settled to
the satisfaction of the Union representatives. Although it appears that some of the
grievances were settled in a spirit of compromise , others were not. This is shown by the
Union's request for arbitration on one grievance and the respondent 's refusal.
14 There is uncontradicted testimony to the effect that there were a number of others
cases similar to Hudson's in the plant
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have been raised to the $1.00 rate as soon as the promotion had gone into effect.
The respondent rejected the Union's position and refused to raise Hudson to the
$1.00 rate, contending that an employee when promoted to a new classification
should be raised 5 cents per hour and should receive additional 5-cent raises at
the end of each 6 weeks until reaching the maximum rate for a particular classi-
fication, provided that a "Merit Board" found the employee's work to be satis-
factory .15 The Union requested and the respondent refused arbitration on this
dispute.
At about 2 p. m. on November 19 the Union held a meeting for the night shift
employees. The meeting was presided over by Nevels and Logan, who reported
the outcome of the meeting with the respondent on November 15. A strike vote
was conducted and the night shift voted to strike. Nevels then sent two members
of the Union to the plant at about 3 p. m. with instructions to inform all employees
to attend a 4 o'clock meeting at the Union Hall, and telephoned Mayo Prescott,
superintendent of respondent's plant, and advised him that the night shift, due
to some unfinished business, would not report for work at the regular starting
time of 4 p. m. but would report at 0 p. m.18 Immediately prior to his telephone
conversation with Nevels, Prescott spoke to Young, one of the employees sent to
the plant by Nevels, and was informed by Young that there would be a joint
meeting between the night and day shifts at 4 p. m. Prescott reported his con-
versations with Nevels and Young to Dorsey. Dorsey instructed Prescott to call
Nevels and request him to inform the employees that the night shift would be
called off that night and that the employees should report at the regular time
the following day. Prescott called Nevels, as instructed, at about 3: 35 p. m.
and requested him to make the announcement at the meeting.11
The joint meeting of the night and day shifts was held commencing about
4 p. m. At this meeting another strike vote was taken, with both the night
and day shifts participating. The employees voted not to strike by an approxi-
mate vote of 148 against striking to 119 for striking. At the conclusion of the
meeting Nevels, in substance, told the night shift employees that they should
report for work ; that if work was refused, they should demand 2 hours' pay ;
and that if they did not get the 2 hours' pay, they should picket the plant18
A number of employees reported to the plant gates at 6 p. m., but apparently
made no effort to enter the plant. Prescott came out of the plant and told the
employees that there would not be any work that night. One of the employees
15 The 1945 contract provided for a Merit Board and for the 5-cent increases. The
respondent continued this method of increasing wages after the 1946 contract went into
effect. In the undersigned's opinion there is nothing in the 1946 contract to justify the
respondent's position and such action on the part of the respondent clearly constituted
a breach of contract, and it is so found.
15 As to this conversation, Nevels testified that Prescott replied, "Okeh." Prescott
denied making this statement and testified that he did not make any reply Logan corrobo-
rated Nevels' version of the conversation . The undersigned credits Prescott 's testimony
in this connection. Nevels was conclusively shown not to be a credible witness in other
respects and Logan 's testimony as to the instant conservation does not sound plausible.
17 Prescott testified credibly that he had this conveisation with Nevels at about 3: 35
p. m. Nevels testified that he did not receive the call until after the Union meeting was over
or at about 5 . 30 p. in. The undersigned does not think the question of fact is material,
but as related above Nevels has been found not to be a credible witness.
is Nevels denied making this statement to the employees. However, the testimony of
a number of v itnesses both for the Board and for the respondent conclusively shows
that the statement was made immediately prior to the close of the meeting. Subsequent
actions of the night shift employees when they reported to the plant indicate that Nevels
issued such instructions.
DORSEY TRAILERS, INC. 499
asked for 2 hours' reporting pay and Prescott replied to the effect that he was
unable to give an immediate answer on that question. Immediately thereafter,
and on the night of November 19, pickets were placed around the plant and
the employees remained on strike until November 26. Harden, International
Representative of the Union, had a telephone conversation on or about November
22 with Dorsey during which he asked Dorsey for a meeting in order to settle the
strike. Dorsey, in effect, told Harden that he was too busy for a meeting and
refused to meet with the Union or its representatives by stating, "I don't
know" when pressed by Harden to name a date when he would be available for
a meeting.18 On November 26 the Union withdrew all pickets from the plant
and sent the following letter to the respondent :
DEAR SIR DORSEY :
On behalf of its members The International Union United Automobile,
Aircraft and Agricultural Implement Workers of America, affiliated with
the Congress of Industrial Organizations, Local Union 773, hereby offers,
unconditionally, to return to work at the Dorsey Trailers, Inc., Elba, Alabama,
immediately.
Reply requested,
By letter dated November 26, the respondent replied to the above letter of the
Union as follows :
DEAR SIR :
Re : Offer to Return to Work
Your offer dated November 26, 1946 received in which the members of
UAW-CIO Local No. 773 offers, unconditionally, to return to work to Dorsey
Trailers, Inc. immediately.
The Company is unable to put the men back to work and resume operation
at this time for the following reasons :
(a) Six to seven weeks prior to strike we were operating on restrictive
production, as result of many material shortages. A number of the pro-
duction lines were continuously down during this period. The only reason
we were operating during this period was that we anticipated improvement
in material supplies and for the purpose of avoiding disturbance of the
organization.
(b) Immediately after the strike occurred our plant was picketed and
transportation companies were refused entrance for making deliveries of
materials in transit. As the result of this action, immediate wires were
sent to our sources of supply to discontinue all deliveries.
(c) Not knowing the duration of the strike, we also disposed of certain
raw materials for the purpose of reducing inventory.
(d) As a result of the coal strike and curtailment of transportation
facilities, we are now in a more unfavorable situation so far as materials
are involved than we were originally.
(e) In view of the above circumstances and the facts that we must again
be placed on schedule for shipment of raw materials from our various
sources and the fact that they cannot give us any information now as to
"Harden testified credibly to the above conversation. Dorsey did not deny the state-
ments attributed to him by Harden . However , his testimony concerning the conversa-
tion might be construed as a denial since he did not testify that Harden requested or
that he refused a meeting although asked to relate the entire conversation.
817319-49-vol. 80-33
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when shipments can be resumed, we are unable to determine when it will
be possible to open the plant for further operation.
Yours very truly,
Thereafter Wade Reynolds , president of the Union, scheduled a meeting of
the Union to be held on December 17 at the County Court House. At this meeting
110 votes were cast to disband the Union and 11 votes were cast against such
action. By letter dated December 18, 1946, Reynolds advised the respondent
of the action taken at the meeting and requested cancellation of the 1946
contract 2°
The respondent acknowledged the above letter of Reynolds by letter dated
December 23, in which it accepted cancellation of the contract and outlined the
history of its dispute with the Union.
On December 30, the respondent sent out cards to certain employees, notify-
ing them that the plant would be reopened on January 6, 1947. On December 31,
Nevels and Logan went to Prescott in order to file grievances, because they and
some other employees had not been notified to report for work . Prescott informed
them, in substance, that the strike constituted a breach of the contract and
that the respondent was therefore not obligated to bargain with the Union. The
plant thereafter reopened to a partial extent on about January 6, 1947. The
Union meanwhile persisted in its attempts to file grievances under the terms of
the contract. Finally, a meeting was held on January 11 between J. C. Flem-
ing, attorney for the respondent, and Nevels, Logan, and J. L. Harrison, as rep-
resentatives of the Union. The following conversation took place:
Mr. FLEMING. On January 4th, last Saturday, you gentlemen, along with
Mr. Foy Bowdoin, were in here and at that time there was nine grievances
you had.
Mr. NEVELs. Yes, sir.
Mr. FLEMING. Let me give you the answer on these. At that time I told
you, of course, I would have to take it up with management to see if they
would consider the grievances or whether they would discuss them or want
to accept grievances and see what to do about them, I think I told you I
could get to it Thursday of last week and some of you gentlemen suggested
we wait until this morning.
Mr. NEVELS. That's right.
Mr. FLEMING. Here is what I have done. I have taken it up with man-
agement and they want me to give you or instructed me rather to give you
this kind of reply. That since the strike took place on November 19th and
the plant was picketed and the Company did not have any notice as re-
quired by law, that is the thirty days notice, and I believe it is Section 56
of the contract that provides for no strike.
Mr. NEVELS. I think too if you will read that contract you will find no
strike until the grievance procedure has been exhausted.
Mr. FLFMING. That is possibly right, and the Company says the contract
was breached and violated on the 19th and there is no contract in existence
and therefore they would not discuss or accept any grievances because
there is no contract So with that, the nine grievances and any other griev-
ances that you have would not be considered.
20 It appears that at all times mentioned herein, Reynolds was under suspension as an
officer of the Union The evidence conclusively shows that Reynolds did not have the
authority to call such a meeting . It appears that the back -to-work movement was
instigated mainly by the civil authorities and merchants in the town of Elba.
DORSEY TRAILERS, INC. 501
Mr. NEVELS. That will apply to all of them.
Mr. FLEMIN G . Of course , if those nine are not recognized the others that
follow would be in the same category . I thought I ought to say that to you
gentlemen and we would not be mulling about going into those other griev-
ances and if you gentlemen understood what the company 's position was
then, of course , I know you have your recourse , that is, to file with the Na-
tional Labor Relations Board or take such action as you see fit.
Mr. LOGAN. That is all the procedure left open.
Mr. FLEMING . That's right , and not for me to suggest that you do or don't.
Mr. NEVELS. We had some grievances we typed up.
Mr. FLEMING . In other words , I think you gentlemen understand me, I
am not mad with anybody.
Mr. LOGAN. Would you let me take that down?
Mr. FLEMING . That is the reason I was letting the lady take it down. This
was my idea in letting her take it down in shorthand , it is something for my
file and if you gentlemen want a copy of it I would be glad for you to have
it because that is the official answer.
Mr. NEVELS . Yes, sir; we would like to have it.
2. The appropriate unit
The complaint alleges as the appropriate bargaining unit all of the employees
of respondent 's plant, Elba, Alabama , excluding plant guards, watchmen, sales
and collection personnel , clerical employees , and any supervisory employees with
the right to hire, promote , discharge, discipline , effect changes in the status of
employees, or effectively recommend such action. In its answer the respondent
denied the allegation of the complaint , stating its denial is based on "lack of
sufficient knowledge." At the hearing the respondent did not offer any evidence
with respect to the bargaining unit. The unit specified in the 1946 contract is
in all essential respects the same as that alleged in the complaint. Under all
the circumstances , the undersigned is convinced and finds that the unit alleged
to be appropriate in the complaint constitutes a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section 9 (b) of the Act.
3. Conclusions as to the alleged refusal to bargain and the alleged lock-out
In its answer the respondent admitted that the Union requested recognition on
or about November 22, 1946, and at various times thereafter, but denied that it
unlawfully failed and refused to recognize the Union on and after said date Iii
its arguments at the hearing and in its brief the respondent contends that it was
not obligated to bargain with the Union for the reason that the strike com-
mencing on November 19 was illegal and constituted a breach of the 1946 contract.
The evidence shows that the respondent refused to recognize and bargain
with the Union on and after November 22, 1946. However, the undersigned
finds it unnecessary to pass on the question of whether or not the respondent's
refusal to bargain was in violation of the Act. The Board had the burden of
proving that the Union represented a majority of the employees in the appropriate
unit at the times involved. Such proof of majority status is a condition prece-
dent to a finding of illegal refusal to bargain. In the undersigned ' s opinion the
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board did not sustain that burden.21 The Board's proof in this connection con-
sists of (1) the election conducted by the Board on May 11, 1945, which was won
by the Union, (2) the union shop clause in the 1946 collective bargaining contract,
and (3) uncontradicted testimony to the effect that as of the time of the strike
there were only some 12 or 15 employees in the appropriate unit who were not
members of the Union. This undisputed evidence unquestionably discloses that
a majority of the employees were members of the Union at the times material
herein. Such membership, however, was compulsory under the union shop
clause in the contract and does not reflect the uncoerced selection of a collective
bargaining representative contemplated by Section 9 (a) of the Act. Under
such circumstances the Board has held that the designations could not serve to
authorize a union to act as the employees' exclusive representative!'
It may be argued that there is a presumption of continuing majority on and
after November 22, 1946, since the Union had been chosen as collective bargain-
ing representative at an election conducted by the Board on May 11, 1945. Such
a presumption could have no application to the instant case, however, because it
is valid only for a reasonable time, usually one year, and the Union's certification
was already 11/2 years old at the time of the alleged refusal to bargain. More-
over, there is evidence in the case which tends to rebut any such presumption.
At the election on May 11, 1945, there were 199 eligible voters in the appropriate
unit. Of this number 178 employees cast ballots ; 128 voted for and 50 voted
against the Union. The respondent's pay roll for the week ending November
23, 1946, lists 347 employees, thus showing an increase of 148 in the appropriate
unit since the election. The suspension of Reynolds as president of the Union is
the first indication of dissension and defections in the Union's ranks. This split
further becomes apparent from the vote at the meeting of the Union on Novem-
ber 19 and from the vote at the back-to-work meeting on December 17. In the
undersigned's opinion, the November 19th vote shows a rejection by a majority
of the members present of the dictates of the then leaders of the Union, and the
December 17th vote, by which 110 employees renounced the Union, merely serves
to emphasize the dissension The undersigned is convinced that this condition
was brought about by dissatisfaction over leadership in the Union rather than
by any unfair labor practices on respondent's part. Although a majority of
members voted against a strike on November 19, Nevels, in effect, disregarded
the vote and instigated the ensuing strike by his announcement at the end of
the meeting that the night shift employees should set up picket lines if they were
refused 2 hours' reporting pay. This wilful action on Nevels' part undoubtedly
added fuel to an already smoldering tire.
It has been found above that the respondent breached the 1946 contract by not
paying the wage rates specified therein. However, the Union also breached the
contract in its inception by not adopting a no-strike clause as a by-law at the
ratification meeting, and the respondent was not at any time informed that the
Union had not complied with this particular provision of the contract. Counsel
for the Board urged at the hearing that the respondent's breach of contract was
an unfair labor practice. In view of the Union's prior breach of contract, the
undersigned rejects this contention. It will be hereinafter found that an assault
on Harden, the International Representative of the Union, on December 17, 1946,
21 Although in its answer the respondent denied "for lack of sufficient knowledge" the
allegation of majority representation in the complaint, it does not appear, as will be
noted above, that the respondent at any time after the Board's certification questioned
the Union's majority in its dealings with the Union
22 Matter of McGough Bakeries , 58 N. L . R. B. 849.
DORSEY TRAILERS, INC. 503
constituted interference, restraint, and coercion. However, from the facts in
the case the undersigned is convinced that the employees were not aware that
the respondent was in any way connected with the assault and that the unfair
labor practice found in this respect did not cause defections from the Union.
Under all the circumstances in the case, therefore, the undersigned is convinced
and finds that the evidence fails to establish that the Union, on and after Novem-
ber 22, 1946, was the duly designated representative of a majority of the employees
in the appropriate unit. Accordingly, the undersigned finds it unnecessary to
pass upon the respondent 's contention urged in defense of its refusal to bargain.
It will therefore be recommended that the allegation of the complaint that the
respondent violated Section 8 ( 5) of the Act be dismissed.
The complaint alleges that the respondent locked out its employees on Novem-
ber 19, 1946. At the hearing counsel for the Board admitted that the employees
were on strike from 4 to 6 p. m. on November 19,'8 but contended that the
employees were locked out by the respondent starting at 6 p . m. The undersigned
rejects this contention and finds that the respondent did not discriminatorily
lock out its employees in violation of Section 8 (3) of the Act. The respondent,
in the undersigned 's opinion , had a perfect right to call off the night shift when
notified by the Union that the employees would not report at the usual starting
time, since the Union 's action clearly interfered with the efficient management of
the plant . It is true, as urged by counsel for the Board , that the Union would
have had a right to strike against a lock-out, but in the undersigned's opinion the
Union was premature in the action that it took if , in fact, the Union was striking
against what it considered to be a lock-out" In view of the respondent 's timely
announcement to the effect that there would not be any work that night and that
the employees should report the following day, the Union should have waited to
see if the plant opened on the next day before calling a strike. As for the
respondent 's failure to reopen the plant until January 6, 1947 , the undersigned
credits the evidence adduced by the respondent to the effect that economic
conditions , caused in part by the strike, necessitated such action?°
E. Interference , restraint , and coercion
On the night of December 16, 1946, Fred Harper, Police Chief of Elba, and
Kimmie Dorsey, assistant superintendent of the respondent's plant, went to the
home of employee W. L. Dewberry. Harper told Dewberry that the employees
could not return to work until Harden, International Representative of the Union,
was run out of town, and offered Dewberry $25 if he would place a gun in
Harden's car. Dewberry refused the offer, but suggested that Harden might be
run out of town if they got somebody to "whip" him. Harper then asked Dew-
berry if he knew of anyone who could do the job. When Dewberry replied that
he believed that he could get someone, Harper agreed to pay Dewberry $50 and
za The respondent contends that the strike, in its entirety, constituted a breach of the
contract The undersigned rejects this contention insofar as the initial strike from 4
to 6 p . in is concerned This strike was caused by the unsatisfactory settlement of
the grievances brought up at the meeting on November 15 In this instance the Union
had exhausted the grievance procedure in the contract Such being the case, the Union
under the tei ms of the contract had the right to strike.
"The evidence conclusively shows and the undersigned finds that at 6 p. in or shortly
thereafter on November 19 the Union struck the plant because the respondent refused
to give immediate consideration to the Union's demand for 2 hours work or 2 hours pay.
25 As a result of the strike the respondent cancelled certain orders for materials, some
of which were scarce at the time . The facts in this connection are summarized in the
respondent ' s letter dated November 26, 1946, set forth above.
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
told him where he could collect it the following morning. Harper also told
Dewberry that if he or anyone who assisted him in beating Harden was injured,
the hospital bill would be paid, and that they would not be jailed or otherwise get
into trouble. Dorsey did not enter into the conversation at any time. 26
On December 17, at about 12: 30 p. m., Dewberry, together with Joe Collins
and David Dlurk,R7 accosted Harden in Elba. Harden was told to leave Elba and
when he refused, they gave him a severe beating. As stated above, an unautho-
rized meeting of the Union was held at the County Courthouse at about 1 p. m.
on December 17, at which the employees present voted to renounce the Union
and cancel the contract.
The undersigned is convinced and finds that the assault of Harden con-
stitutes interference, restraint, and coercion. The evidence clearly shows that
Kimmie Dorsey participated in the arrangements for the assault. He was not
only present during the coversation between Harper and Dewberry but failed
to voice any objections to Harper's proposition. Under the circumstances, it is
the undersigned's opinion that Dorsey was at least in part responsible for the
assault and the respondent in turn was responsible for his actions. Although the
assault was an isolated instance of interference, it is clear that such conduct
interfered with the employees' rights guaranteed in Section 7 of the Act .28
F. The failure to reinstate Jim Nevels, Ben Logan and Leavy Boutwell
Nevels, Logan and Boutwell were officers of the Union. As shown above,
they were the leaders in the strike commencing on November 19, 1946. The plant
reopened on about January 6, 1947, but the respondent did not recall them to work
on that date. As of the date of the hearing the respondent had failed to reinstate
these three employees, although it is undisputed that employees with less seniority
were working for the respondent on and after January 6. Nevels, Logan and
Boutwell attempted to get back their positions with the respondent by filing
grievances. As stated above, the respondent rejected the grievances, claiming
that the contract had been breached by the strike and that it therefore was no
longer in existence.
The evidence shows that the respondent failed to reinstate these employees
because they were the leaders of a strike which the respondent considered illegal
and in breach of the contract. The undersigned believes that the strike did con-
stitute a breach of the contract, since it obviously was caused by the failure of the
respondent to give immediate consideration to a demand for 2 hours work or
2 hours pay. Under the provisions of the contract the Union agreed not to
strike until the grievance procedure was exhausted, which the Union did not do in
this case. However, the undersigned believes that the respondent's position is
untenable, since, as found above, the respondent prior to the strike also breached
the contract by not paying the wage rates specified therein. The respondent also
urges that the Union breached the contract in its inception by not adopting as a
by-law a no-strike clause at the ratification meeting. The undersigned believes
that such failure on the Union's part did constitute a breach of contract, since the
Union did not do what it had agreed to do. It is no defense for the Union to
20 Dewberry testified credibly and without contradiction to the above conversation.
Neither Harper nor Dorsey was called as a witness.
27 Collins was not an employee at the time mentioned above. However, he was hired
by the respondent at sometime in January 1947 . It does not appear that Burk was ever
employed by the respondent.
28 Matter of Arton Studios, Incorporated , 74 N. L . R. B. 1158.
DORSEY TRAILERS, INC. 505
claim that by-laws could not be adopted unless approved by the International.
Moreover, Harden, International Representative of the Union, was present during
the negotiations and signed the contract. He knew or should have known the
procedure for adopting by-laws. Nevertheless, the undersigned believes that such
breach of contract is immaterial to this issue ; and that in view of the respondent's
breach of contract prior to the strike the respondent by its refusal to reinstate
these employees committed an unfair labor practice ' Accordingly, the under-
signed is convinced and finds that the respondent on or about January 6, 1947,
failed and refused to reinstate Jim Nevels, Ben Logan and Leavy Boutwell be-
cause of their membership in and activities on behalf of the Union and because
they engaged in concerted activities with other employees for the purposes of
collective bargaining and other mutual aid and protection.
G. The alleged discriminatory discharge of John Henry Stephens
Stephens was employed by the respondent from about October 1945 until his
discharge on February 3, 1947. He joined the Union in February 1946, and was a
"trustee" of the Union when fired . He did not participate in the strike in Novem-
ber 1946, as he was on vacation at that time. He returned to work on January
6,1947. At some time during January he lent his car during the daytime to James
Harley, a Field Examiner of the Board, who was investigating the charges in the
instant case at the time.
At about the latter part of January the respondent posted in the plant general
rules governing the conduct of employees , one of which was the following:
Solicitation of membership , pledges, subscriptions and/or the participation
in any organizational activity or [sic ] any kind on the Company 's working
premises and/or on Company time without permission of the superintendent.
This rule does not apply on employee 's time or during lunch periods.
The credible testimony shows that on or about February 3 Stephens on three
separate occasions solicited employees to pay their union dues . Each solicitation
occurred during working hours and away from Stephens ' place of employment.
All were witnessed and investigated by supervisory employees.' As a result of
these investigations , Stephens was discharged on February 3 for violation of the
above rule.
The undersigned believes the above rule was not discriminatory , as alleged
in the complaint , and that the respondent was justified in discharging Stephens
for infractions of the rule . The evidence does not show that the respondent was
aware that Stephens had lent his automobile to Field Examiner Harley. Even
if it had been proved that the respondent had knowledge of this fact, the under-
signed is of the opinion that it would not justify any inference of discrimination.
Accordingly the undersigned finds that the respondent did not discharge Stephens
because of his membership in or activities on behalf of the Union , but did dis-
charge him for cause.
29 Matter of Scullin Steel Company, 65 N. L R . B. 1294.
39 Stephens at first denied that he solicited employees during working hours, but later
gave testimony to the effect that it was possible that he had talked to some employees
during working hours, either when he was going to or returning from the water fountain
or when they were working nearby. Employees Smith , McKenzie and Stewart testified
credibly that Stephens solicited them during working hours . Claude Brooks, a foreman,
and Superintendent Prescott testified credibly that they saw Stephens talking to em-
ployees during working hours while away from his place of work.
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
connection 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 ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair labor prac-
tices, the undersigned will recommend that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act. It
has been found that the respondent has discriminated in regard to the hire and
tenure of employment of Jim Nevels, Ben Logan and Leavy Boutwell by failing
and refusing to reinstate them on January 6, 1947.
It will therefore be recommended that the respondent offer Jim Nevels, Ben
Logan and Leavy Boutwell immediate and full reinstatement to their former
or substantially equivalent positions ' without prejudice 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 respondent's discrimination against them by
payment to each of them of a sum of money equal to the amount they normally
would have earned as wages during the period from the date of the discrimina-
tion to the date of the offer of reinstatement, less their net earnings 82 during the
said periods.
It has been found that the respondent did not discriminatorily lay off Leavy
Boutwell on January 1, 1946, lock out its employees on May 7, 1946, and Novem-
ber 19, 1946, and discharge John Henry Stephens, and that the Board did not sus-
tain the burden of proving majority in connection with the allegation in the
complaint charging violation of Section 8 (5) of the Act. It will therefore be
recommended that the complaint be dismissed with respect to those allegations.
It has also been found that respondent has engaged in certain interference,
restraint, and coercion. It will be recommended that the respondent cease and
desist therefrom.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. International Union, United Automobile, Aircraft and Agricultural Imple-
ment Workers of America, Local 773, C. I. 0., is a labor organization within the
meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Jim
Nevels, Ben Logan and Leavy Boutwell, thereby discouraging membership in
International Union, United Automobile, Aircraft and Agricultural Implement
Workers of America, Local 773, C. I 0., the respondent has engaged in and is
engaging in unfair labor practices, within the meaning of Section 8 (3) of the
Act.
"In accordance with the Board's consistent interpretation of the term, the expression
"former or substantially equivalent position" is intended to mean "former position
wherever possible, but if such position is no longer in existence, then to a substantially
equivalent position." See Matter of The Chase National Bank of the City of New York,
San Juan, Puerto Rico, Branch, 65 N. L. it. B. 827.
82 Matter of Crossett Lumber Company, 8 N. L. R. B. 440.
DORSEY TRAILERS, INC. 507
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (1) of
the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned hereby recommends that the respondent, Dorsey Trailers, Inc., its
agents, successors and assigns shall:
1 Cease and desist from:
(a) Discouraging membership in International Union, United Automobile,
Aircraft and Agricultural Implement Workers of America, Local 773, C. I. 0., by
laying off, discharging or refusing to reinstate any of its employees, or in any
other manner discriminating in regard to their hire and tenure of employment or
any term or condition of employment ;
(b) In any other manner interfering with, restraining, or coercing its em-
plot ees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist International Union, United Automobile, Aircraft and Agri-
cultural Implement Workers of America, Local 773, C. I. 0, or any other labor
organization, to bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will effec-
tuate the policies of the Act :
(a) Offer Jim Nevels, Ben Logan and Leavy Bontwell immediate and full re-
instatement to their former or substantially equivalent positions, without preju-
dice to their seniority or other rights and privileges;
(b) Make whole Jim Novels, Ben Logan and Leavy Boutwell for any loss of
pay they may have suffered by reason of the discrimination against them by
payment to each of them of a sum of money equal to an amount determined in
the manner set forth in the section entitled, "The remedy" above ;
(c) Post at its plant at Elba, Alabama, copies of the notice attached hereto
marked "Appendix A." Copies of said notice, to be furnished by the Regional
Director for the Fifteenth Region, after being signed by the respondent's repre-
sentative, shall be posted by the respondent immediately upon the receipt
thereof, and maintained by it for sixty (60) consecutive days thereafter, in
conspicuous places, including all places where notices to employees are cus-
tomarily 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 Fifteenth Region in writing, within
ten (10) (lays from the date of the receipt of this Intermediate Report, what
steps the respondent has taken to comply therewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondent notifies the said Regional
Director in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to take
the action aforesaid.
It is further recommended that the complaint , insofar as it alleges that the
respondent discriminatorily locked out its employees on May 7, 1946, and on
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
November 19, 1946, laid off Leavy Boutwell on January 1, 1946, and discharged
John Henry Stephens, and that the respondent refused to bargain with the
Union on and after November 22, 1946, within the meaning of Section 8 (5)
of the Act, be dismissed.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board, Series 5, effective August 22, 1947, any party or counsel
for the Board may, within twenty (20) days from the date of service of the
order transferring the case to the Board, pursuant to Section 203.45 of said
Rules and Regulations, file with the Board, Rochambeau Building, Washington
25, D. C., an original and six copies of a statement in writing setting forth
such exceptions to the Intermediate Report or to any other part of the record
or proceeding (including rulings upon all motions or objections) as he relies
upon, together with the original and six copies of a brief in support thereof ;
and any party may, within the same period, file an original and six copies of
a brief in support of the Intermediate Report. Immediately upon the filing
of such statement of exception and/or briefs, the party filing the same shall
serve a copy thereof upon each of the other parties. Proof of service on the
other parties of all papers filed with the Board shall be promptly made as required
by Section 203.85. As further provided in said Section 203.46, should any party
desire permission to argue orally before the Board, request therefor must be
made in writing to the Board within ten (10) days from the date of service
of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations , be adopted by the Board and become its findings , conclusions
and order, and all objections and exceptions thereto shall be deemed waived for
all purposes.
JOHN H. EADIE,
Dated September 9, 1947. Trial Examiner.
APPENDIX A
NOTICE TO ALL EMPLOYEES
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 our employees that :
WE WILL NOT in any manner interfere with,, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor
organizations, to join or assist INTERNATIONAL UNION, UNITED AUTOMOBILE,
AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, LOCAL 773,
C. I. 0., or any other labor 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 protection.
WE WILL OFFER to the employees named below immediate and full rein-
statement to their former or substantially equivalent positions without
prejudice to any seniority or other rights and privileges previously enjoyed,
and make them whole for any loss of pay suffered as a result of the dis-
crimination.
Jim Nevels
Ben Logan
Leavy Boutwell
DORSEY TRAILERS, INC. 509
All our employees are free to become or remain members of the above-named
union or any other labor organization . We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization.
DCRSEY TRAILERS, INC.,
Employer.
By -----------------------------
(Representative ) (Title)
Dated --------------------
NOTE.-Any of the above-named employees presently serving in the armed
forces of the United States will be offered full reinstatement upon application in
accordance with the Selective Service Act after discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof , and must
not be altered , defaced , or covered by any other material.