Eagle International, Inc.

National Labor Relations Board - Board Decisions

Dec 30, 1975

221 N.L.R.B. 1291 (N.L.R.B. 1975)

EAGLE INTERNATIONAL, INC. 1291
Eagle International , Inc. and International Union,
United Automobile , Aerospace and Agricultural
Implement Workers of America , UAW. Case 23-
CA-5469
December 30, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On September 17, 1975, Administrative Law Judge
James T. Rasbury issued the attached Decision in
this proceeding. Thereafter, the Respondent and the
General Counsel filed exceptions and supporting
briefs; the General Counsel also filed, a brief in
support of the Administrative Law Judge's Decision
and the Respondent filed a response to the General
Counsel's exceptions:
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act; as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, except as
modified herein.
We agree that the Respondent has not established
that its employees engaged in a series of intermittent
strikes or a planned wgrk slowdown. Viewing the
record in a light favorable to the Respondent, the
most that can be said is, that employee discussions
extended past the scheduled breaks and starting time
for work, and that groups of employees - were
engaging in discussions more frequently than usual.
There is no direct evidence of any plan or intention
thereby to pressure the Respondent nor is there
sufficient basis 'to, draw the inference. There is
evidence in the record that one of the major topics of
discussion was employee concern over threats to any
employees who did not participate in the February
13, 1975, strike. The, employees engaged in these
discussions returned to their work when approached
by their supervisors and none of those involved
received a written warning. On at least some
occasions employees were not working because of a
shortage of tools or parts and, possibly, because of
the requisition system i recently instituted by the
Respondent. Significantly, on the morning of the
13th the strikers were not told the Respondent
believed they were engaged in an unprotected strike,
but rather that those who did not return to work
would "be assumed to, be in disagreement with the
policies of this company and will be terminat-
ed. . . ." A preponderance of the evidence does not
establish that the employees were engaged in
unprotected activity.
Based on the foregoing, we find that neither the
February 12 nor the February 13 strike was unpro-
tected and that the Respondent's discharge of the
strikers violated Section 8(a)(1) of the Act, as did the
Administrative Law Judge. We find it unnecessary to
consider whether the Respondent's statement, that
strikers, who did not return to work were terminated
condoned any previous unprotected activity.
Although the Administrative Law,Judge found that
the strikers were unlawfully terminated, he conclud-
ed that there' had been no unconditional group offer
to return to work. He did, however, find that some 70
of the unlawfully discharged strikers appeared
personally at the plant and offered to return to work.
With few exceptions' those-who offered to return to
work were told, with only minor variation, that the
strikers had been terminated and would not be
rehired. It is well settled that discharged strikers, like
any other strikers, need not apply for reinstatement if
application would be futile.2 That possibly five
strikers were returned to work, and two of them were
not rehired until the 26th, is far from insufficient to
overcome the message of futility conveyed not only
by the Respondent's express statements that strikers
would not be rehired, but also by its overwhelming
adherence to that policy.
The, strikers began- offering to return to work on
February 14 and did so in fairly substantial numbers
until the 17th, with one last offer to return being
made on February 19. We shall order backpay, to be
computed in the manner set forth in the Administra-
tive Law Judge's Decision, beginning on the date of
the offer to return to work for those who made offers
and starting on February 19, 1975, for those strikers
who we have found failed to apply for reinstatement
because of the futility of application.3 We neither
reach nor pass upon the Administrative Law Judge's
conclusion that, in the particular circumstances of
this proceeding, the purported group offers to return
to work were ineffective .4
1 The Administrative Law Judge found that Benito Gonzalez, Jr, was
rehired February 13 but quit the same day Gonzalez was a working
foreman who returned to work on the representation that he would receive
his former job back, and "quit" when he discovered he had been replaced as
a working foreman. He was not reinstated to his former position or a
substantially equivalent job, and,we find, contrary to the Administrative
Law Judge, that he is entitled to reinstatement and backpay We also note
221 NLRB No. 222
that the Administrative Law Judge inadvertently onutted the names of
Antonio Portales and Joe Hernandez from his Appendix B, it is hereby
amended accordingly
2 E.g., Valley Oil Co, Inc, 210 NLRB 370 (1974).
3 Member Fanning concurs in this result . See his dissenting opinion in
Valley Oil Co., Inc, 210 NLRB 370 at 371 (1974).
4 Whether or not the attempts to notify the Respondent that the strikers
(Continued)
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Contrary to the Administrative Law Judge's
suggestion, we will not permit the Respondent, at
least not as a matter of course, to relitigate at the
compliance stage of this proceeding whether or not
individuals who were on the Respondent's payroll on
February 12, 1975, but not the following week, were
severed for reasons unconnected with the incidents
giving rise to this proceeding. Barring unusual
circumstances such as previously unavailable or
newly discovered evidence, which we do not fore-
close, the orderly administration of the Act requires
that parties not be permitted to litigate in subsequent
stages of a proceeding issues which were or could
have been litigated earlier.
Finally, the General Counsel excepts to the
Administrative Law Judge's failure to recommend a
broad order. Few violations of the Act can have a
more lasting and telling impact on employees and
their exercise of Section 7 rights than an unlawful
mass discharge and a subsequent unlawful failure
and refusal to reinstate the unlawfully discharged
employees. We shall amend the order accordingly.s
ORDER
Pursuant to Section 10(c) of the National Labor
Relations, Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that Respondent
Eagle International, Inc., Brownsville, Texas, its
officers, agents, successors, and assigns, shall take the
action set forth in the Administrative Law Judge's
recommended Order as modified below:
1. Delete "like or related" from paragraph 1(c),
reletter it 1(d), and insert the following as 1(c):
"(c) Failing and refusing to reinstate the discharged
strikers."
2. Substitute the following for paragraph 2(a):
"(a) Offer to those striking employees shown on the
attached appendix immediate and full reinstatement
to the named employee's former job or, if that job no
longer exists, to a substantially equivalent job,
dismissing,, if necessary, anyone who may have been
hired' or retained to perform the work which each
employee respectively had been performing prior to
the time said employee was discharged, without
prejudice to his seniority or other rights and
privileges, and make each whole for any loss' of pay
he may have suffered as a result of the unlawful
discharge in the manner set forth in the section of
this Decision entitled `The Remedy.' "
wished to return to work were binding upon the Respondent as
unconditional offers to return to work on behalf of the employees, they
confirm our conclusion that the strike was abandoned no later that
February 19, 1975.
5 Although finding that the Respondent's failure to reinstate the
unlawfully discharged strikers violated Sec 8(a)(1), the Administrative Law
Judge recommended no order in that respect. We shall correct that apparent
oversight.
DECISION
STATEMENT OF THE CASE
JAMES T. RASBURY, Administrative Law Judge: This case
was tried before me at Brownsville, Texas, on May 6
through 9 and May 19 through 22, 1975,1 pursuant to a
complaint and notice of hearing issued on March 21 by the
Regional Director for, Region 23 of the National. Labor
Relations Board, herein the Board. The complaint was
based upon' an unfair labor practice charge filed on
February 20 alleging violations of Section 8(a)(1) of the
National Labor Relations Act, as amended, 29 USC § 151,
et. seq., herein called the Act.
All parties were afforded full opportunity to appear, to
introduce evidence, to examine and cross-examine witness-
es, and to file briefs. Based upon the entire record, the brief
of counsel for the General Counsel, and the brief for the
Respondent, and my observations of the demeanor of the
witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is a Texas corporation with its principal
office and place of business at Brownsville, Texas, where it
is engaged in the business of manufacturing buses utilized
by common carriers in the interstate transportation of
passengers., During the past 12 months, Respondent
purchased goods and materials valued in excess of $50,000
directly from firms located outside the State of Texas, and
such goods and materials were shipped direct from such
firms to Respondent at its Brownsville, Texas, facility:
During said past 12 months, Respondent sold and shipped
products valued in excess of $50,000 directly from its
Brownsville, Texas, facility to firms at points located
outside the State of Texas. Upon these admitted facts, I
fmd that Respondent is now, and has been at all times
material herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of 'the Act.
II. LABOR ORGANIZATION
The complaint alleges; and the Respondent's answer
admits and I herewith find, the International Union,
United Automobile, Aerospace and Agricultural Imple-
ment Workers of America, UAW, is, and at all times
material herein has been, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues
1) What were the motivating forces surrounding the
discharge of Rogelio Garza on February 12, 1975?
1 All dates hereinafter will be in the year 1975 unless otherwise indicated.
EAGLE INTERNATIONAL, INC
2) Should the employees who ceased work shortly after
Garza was discharged be treated as voluntary quits or were
they protected concerted protesters of the discharge of
Garza?
3) Did the past conduct of the striking employees the
morning of February 13, 1975, warrant (make legal) their
immediate discharge?
4) Was a valid unconditional offer to return to work
made by the striking employees?
B. Background
Respondent is engaged in the business of manufacturing
intercity passenger buses at its Brownsville, Texas, plant.
For a number of years, these buses had been manufactured
in Bruges , Belgium . Closing the Belgium plant and
establishing the Brownsville plant began in 1973. The first
production at Brownsville was commenced in June 1974,
and approximately 11 buses were completed by the end of
the year. The usual manufacturing and assembly job
classifications were employed including welders, sheetmet-
al, electrical wiring, air conditioning, upholstery, and
paintshop workers.
Mr. William Graham is vice president and general
manager of Respondent, Chauncey Dirks is production
manager , John Brito is personnel director, Henry Chavez,
Gilbert Garcia, Joe Perez, and Juan Valdez are departmen-
tal supervisors, and each of the aforenamed are acknowl-
edged by Respondent to be supervisors within the meaning
of the Act.
Most of the employees had little or no specific skills
training prior to their employment by Respondent, which
necessitated a great deal of on-the-job training resulting in
substantial amounts of scheduled overtime.
The financial condition of Respondent was tenuous from
the beginning. The parent company planned the sale of a
large holding in Europe expecting to generate about $5
million . The city of Brownsville entered into an agreement
with Respondent to issue securities to raise funds to
purchase the machinery and equipment for the plant and
to then lease it back to Eagle under a 10-year payout
contract. This provided a savings of a $2 million capital
expenditure to be paid out over the 10-year-lease period.
Thus the net capitalization was anticipated to be about $7
million.
The attorney general of Texas ruled the proposed city
financing to be unconstitutional and no substitute plan for
the acquisition of the equipment in a leaseback plan
became available. The sale of the European property failed
to materialize . Eagle then arranged a line of credit for $4
million with a local bank, which, because of the financial
condition of the parent company, limited the available
money to one-half that amount. The Respondent has just
barely stayed "alive" by the money produced through the
production and sale of buses.
On December 11, 1974, Mr. Graham was notified by the
local bank that Eagle's account was frozen. Eagle made
arrangements to deposit the on-hand accounts receivable
checks in a separate bank account for purposes of covering
the employees' paychecks. The Respondent's account
2 There was testimony indicating that some employees were concerned
1293
remained frozen throughout the material time herein. The
seriousness of the Respondent's financial condition was
communicated to all employees in an employees bulletin
dated December 12, 1974 (Resp. Exh. 8).
In the early morning of January 29, rumors of a
threatened 2 p.m. strike reached management. Mr. Gra-
ham instructed his supervisors to see what they could learn
of the threatened walkout, and this resulted in a meeting of
8 to 12 employees from various departments with
Messrs. Graham, Dirks, and Brito in Bnto's office in the
early afternoon. The employees' complaints, which were
largely monetary, were aired, with the Company endeavor-
ing to explain its high production costs and generally
precarious financial condition to the employee representa-
tives.
The meeting ended rather abruptly when word was
received that the employees were not returning to work
from their afternoon break. Before the meeting terminated,
however, Mr. Graham had stated that the best the
Company could do was to pay a competitive wage for the
area, and he instructed Bnto to institute an area wage
survey. Comparable competitive wages were promised.
All of the employees were called out of the plant, and
Mr. Graham explained the Company's financial predica-
ment and generally summarized the meeting with the
employee representatives that had just been concluded.
What was said to the assembled employees was again set
forth in a bulletin to all employees dated February 5 (G.C.
Exh. 3). It was believed the wage survey would not take
more than 2 weeks, and it was expected that wage
adjustments would be announced on Wednesday, Febru-
ary 12. (See G.C. Exh. 4 dated 2/12/75 reflecting the new
wage rates.)
In the days that followed the January 29 meeting many
of the employees agreed among themselves that in the
event they were dissatisfied with the Company's wage
announcement that was expected on February 12, they
would not report for work on the morning of the 13th. The
plan was to stand outside the gate on Iowa Avenue (see
Resp. Exh. 13) and not go to work until their demands
were satisfied.
C. The Discharge of Rogeho Garza
On the morning of February 12, Rogelio Garza, a
working foreman in the welding or fitting department, was
discharged on order of Dirks, who instructed Bnto to
inform Garza that he was being terminated for violating
rule 11(c) of the employer handbook - "threatening
employees" on company property (see p. 6 of G.C. Exh. 2).
The Company had knowledge of the planned strike for
February 13, and the threats which the Company contends
Garza made related to threats of physical violence or
property damage to those employees who failed to join in
the planned stake action of the 13th.
After being discharged, Garcia returned to his work area
to retrieve his personal property. In so doing, several
employees learned of his discharge and regarded it as a
breach of a promise2 from management. A brief work
stoppage followed. Most of the employees quickly returned
about serving as an . employee representative (Rogelio Garza was the
(Continued)
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to work after being warned by Dirks that they would be
fired if they did not return to work in 3 minutes ,3 but eight
employees walked off the job and remained off the job.4
Immediately after Garza was discharged, he was told by
Brito not to return to his work area because he was no
longer "authorized personnel." When Garza ignored
Brito 's admonition, Brito called the police, who came to
the plant and proceeded to look for Garza, which undoubt-
edly added to the general confusion and concern of the
employees.
D. The General Strike
The following morning, a large number of employees
remained on Iowa Street and picketed the employees'
entrance to the plant
Lieutenant Douglas Ward of the Brownsville police
testified that he was at the scene as early as 6:05 a.m.5 and
he "observed a rather orderly group that did not go in the
gate ." Lieutenant Ward further testified, "At the time I
first arrived there I talked to some of the people there,
including Mr. Garza, and told them they would not be able
to stop anyone that wanted to go inside the plant , walking
or in cars , and they kept the street open so people could go
in all the time I was there." He testified he remained there
until about 8:30 or 8:45 a.m. and had two officers remain
there all day. The testimony supports a conclusion that the
picketing was orderly and without violence.
Shortly before 8 a.m., Mr. Graham addressed the strikers
and, according to his testimony, read the following
announcement to them:
This announcement is made on behalf of the
management of Eagle International, Inc.
This plant is open for work and will continue to be
so. Those employees who wish to work are invited to
join those already inside the plant. Those who do not
choose to work are assumed to be in sympathy with the
work stoppage.
At 8:00 o'clock this morning an "in plant" roll call
will be taken and those persons not at their work
station at that time will be assumed to be in
disagreement with the policies of this company and will
be terminated and their positions replaced.
After hearing the announcement some of the employees
went to work, but - based on the various estimates of
witnesses - about 100 or approximately one-third of the
work force remained on strike.
In the late afternoon or early evening of February 12,
some 50 to 75 employees of Respondent met in Ringgold
Park, and there heard Garza talk, but as best that can be
discerned from the record, this meeting was to formulate
plans for the strike of the following morning.
According to the testimony of David Duncan, Respon-
dent's local attorney, on Friday, February 14, he received a
call from a Mr. Barrera, who identified himself as an
organizer for the Amalgamated Meatcutters and Butchers
Union. Barrera claimed that he represented a majority of
Respondent's employees, and he wanted to arrange a
meeting with management so that he might prove the
Union's majority status.
Later in the day on that same Friday afternoon, Mr.
Duncan received a call from Jim Douglas, who identified
himself as an attorney, and he said that he represented the
workers who were out (on strike). A meeting was arranged
for Monday, February 17, at 10:30 a.m in Mr. Duncan's
office. On Monday Douglas met with Duncan and
presented a list of demands on behalf of the employees (see
Resp. Exh. 11). The meeting only lasted 10 or 15 minutes,
and Duncan advised Douglas that he would discuss the
matter with management. There was no further contact
between Douglas and Duncan.
It was on Monday morning, February 17, that Roy
Hernandez, organizer for the UAW, arrived on the scene.
Hernandez testified that he met several of the employees,
who explained the status of their walkout, and also met Mr.
Douglas. Hernandez waited until Douglas returned from
the meeting with Duncan, at which time Douglas reported
that Duncan had said the men could not have their jobs
back, and their demands could not be met. Douglas
instructed the employees that they should go to the
Company and ask for their jobs back. Hernandez said that
he then spoke to the group and made the same recommen-
dation. At that time, Hernandez began obtaining union
authorization cards on behalf of UAW from the "striking
employees." On the following day, Tuesday, February 18,
Hernandez testified he prepared and sent a mailgram to
Respondent advising that the work stoppage had terminat-
ed and that "the workers were willing to return to work
immediately and without any conditions." The mailgram
was signed "the production and maintenance employees"
(see G.C. Exh. 11).
The recitation above provides a broad overview of the
main events giving rise to the issues that must be resolved.
IV. ANALYSIS AND LEGAL CONSIDERATIONS
E. Related Events
In the early afternoon of February 12, they6 contacted a
Legal Aid attorney named Jim Douglas.
representative from the fitting department ), but were assured by manage-
ment that none of the representatives would be fired . I am confident
Respondent meant to imply, and probably said , that no employee
representative would be fired because of his service as a representative of the
employees . I am not so sure Respondent's assurances were correctly
understood by the employees
3 One of the employee representatives , Alejandro Resendez, testified that
he also encouraged the men to return to work , pointing out that he was an
employee representative and had not been fired.
4 Fidencio Cantu , Santiago Gallegos, Edwardo Gomez , Bonito Gonza-
A. Rogelio Garza
Garza was hired in June 1974 and promoted to a
working foreman's job in August 1974. There is nothing in
lez, Rafael Oropeza , Rosendo Rodriguez ,. Reyes Rodriguez , and Jose
Salazar
5 The first arrival of employees was around 6 a m Gomez testified that
he arrived a little before 6 a m and waited for the other employees to show
up
6 This from the testimony of Rogelio Garza. Presumably "they" refers to
Garza and one or more of the eight employees that walked out at the time of
Garza's discharge Oropeza testified that a group of nine workers went to
Legal Aid.
EAGLE INTERNATIONAL, INC 1295
the record to indicate that he has ever been disciplined or
warned because of any type of misconduct or inadequate
performance of his duties. There is no doubt he was a
leader or vocal spokesman for a number of the employees.
He is bilingual . He was selected by his department as a
representative to meet with management, and he was vocal
at the meeting in expressing the workers' concern for more
money, more and adequate tools, and safer working
conditions. Concerted activity or union activity does not
immunize an employee against dischargej if the record
taken as a whole presents a substantial basis of believable
evidence pointing toward an unlawful motive the Respon-
dent may be found to have acted unlawfully 8
Mr. Graham testified that Dirks spoke to him at their
customary early morning meeting on February 12, recom-
mending the discharge of Rogelio Garza for having made
"threatening remarks to some of the employees . . . in
connection with a walkout on Thursday morning."
Graham continued, "I concurred with his judgment in this
matter . He said that several workers had approached
several supervisors. He did not name names And he was
convinced that they were, they had some fear, there was
basis for believing that the threats were made."
Dirks testified that he heard from several supervisors
regarding employees being threatened but specifically
stated that Supervisor Ron Jones "told me that there were
a number of his employees who were threatened and
intimidated if they continued to work and did not stay
away from work on the 13th. Their windshields would be
smashed and their face would be pushed in, or words to
that effect. They were expecting bodily harm to themselves.
And the number of people that were threatened, the threats
came from the welding and fitting area primarily, and in
particular, a' Mr. Garza's name was mentioned." Dirks
identified employees Danny Carmona, Joe Cisneros, and
John Reese as the employees whom Supervisor Ron Jones
had identified as those being threatened.
Ron Jones testified that while Danny Carona had
indicated he was concerned because he anticipated trouble,
he (Carmona) did not identify the source of any threats.
Jones did testify that Cisneros "said there was a group of
fellows in there who were threatening people . . . . He said
there was more than one. There were several people
making the threats. I said, `well, who is ramrodding this
thing?' And he advised me that a little short foreman
named Garza. And this is all I know about any specific
people."
Danny Carmona testified that although he knew Rogelio
Garza, he never heard him say anything about the strike or
the planning of the strike. Carmona said he had heard
rumors or stones about violence if the employees didn't
walk out, but he heard no direct threats. Carmona
identified Joe Cisneros as a source of the rumors. He
testified that on one occasion Cisneros told him the
employees were afraid and that Joe was afraid "they were
going to do things to him, you know, if he didn't walk out."
Carmona's testimony indicated that he understood the
r N L. R B v Ogle Protection Service, Inc, 375 F 2d 497 (C A 6, 1967),
cert. denied 389 U S 843
8 Lozano Enterprises v N LR B, 357 F.2d 500 (C A. 9, 1966).
threat to have come to Cisneros from someone in area
two .9
Joe Cisneros testified that Ron Jones is his supervisor;
that he learned of the planned February 13 strike several
days before it occurred; that Garza talked to him during
lunchtime or breaktime "several days before the actual
stnke and he mentioned everything, the price of living is
going up, like you know, I'm sure, and everybody needs a
raise. So that's where it started." Cisneros continued,
"Well, there was rumors going around that everybody that
didn't, you know, go along with it was going to be
physically or property-wise, you know, damaged some way
or another."
JUDGE RASBURY: From whom did you hear these
rumors? Did Garza tell you that?
WITNESS: No, sir. He did not There were other people
Q•
that went along with the walkout that had come
down to me that - From Rogelio Garza it did
not come.
What did you ask Mr. Jones to do for you the next
morning?
A. Well, I told him that it could be possible that
Q•
somebody that's trying to come in to work might
be hurt or their cars might be damaged. I told
him that. Well, I guess he, himself, put himself
that he was going to be out there to take care of
anything that might have happened.
Did you ask him to be out there to help you
through?
A., I did not ask him, sir. He said on his own.
• a • s
Q.. Now I understand your reluctance to testify about
people' you call your Chicano brothers, Mr.
Cisneros, but you are under subpeona. You are
not volunteering to help anybody. You have an
obligation to tell the truth. Now, would you
please tell the Court whether or not Mr. Garth
did threaten you or any person with violence if
you came to work on Thursday? '
A. Well, he could have but I don't remember if he did
or he didn't. I can't honestly say yes, he did, or
no, he didn't.
On cross-examination, Mr. Cisneros acknowledged that
Rogelio Garza also told him that it would be up to the
people to decide whether they'wanted'to come out or not
on stnke.
Q•
A.
I take it you never did tell Ron Jones specifically
that Rogelio Garza threatened you with violence,
did you?
No, sir.
Redirect examination by Respondent's counsel, Mr.
Spaulding:
Q. You told me that he had though, did you not?
9 It would appear from Resp. Exh 10 that .the welding and' fitting
departments occupied ara one.
1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A.
Q.
No, sir, I did not.
You told me he said, "I'll beat the shit out of you
if you go into that plant."
told the employees, "You have five minutes to get back to
your job or you are all through." Other witnesses testified
that Dirks said, "I'll give you three minutes to get back to
work or you are fired." In any event, employees Cantu,
Gomez, Gonzalez, Oropeza, Rodriguez, Reyes Rodriguez,
and Salazar walked out and credibly testified at the trial
that they walked out in protest of the discharge of Garza
because management had assured them that the employee
representatives would not be discharged. (See fn. 2, supra.)
Santiago Gallegos testified that he remained out following
the 11:30 luncheon break because a supervisor told him
Garza was fired because he threatened the Company and
hit Mr. Brito, and "I saw Mr. Brito and I didn't see him
hurt at all." There can be no doubt that their conduct was
protected concerted employee activity unless, as Respon-
dent contends, the conduct engaged in by all employees
had reached such a ridiculously frivolous and unprotected
nature by the time Mr. Dirks confronted the group and
advised them that anyone not returning to work would be
discharged that neither the threat nor subsequent execution
of it was violative of the Act.
The essential facts of the February 13 general strike are
not in dispute and were related under III,D, supra.
Respondent's defense of its action in discharging the
February 13 strikers is the same as that for the February 12
group, namely, the "off again on again" work tactics of the
employees had removed them from the protection afforded
by the Act.
Respondent argues persuasively that partial strikes,
strikes on the installment plan, intermittent or recurrent
strikes, repeated refusals to work overtime, slowdowns, or
any combination of these are not protected and are subject
to employer discipline without recourse, citing the early
case of International Union, U.A.W.A., A.F. of L., Local
232, et al. v. Wisconsin Employment Relations Board, 336
U.S. 245 (1949). There the short stoppages were held to be
not protected. In N.L.R.B. v. Blades Manufacturing
Corporation, 344 F.2d 998 (C.A. 8, 1965), the Board found
three separate I-day strikes over a 12-day period to be
protected activity, but the circuit court denied enforce-
ment. The employer also cites First National Bank of
Omaha, 171 NLRB 1145 (1968), as a case involving a
nonrepresented unit of employees holding that only one
act of misconduct might be' sufficient to cause the
employees to lose their protected status, even though in the
Omaha case the Board found the employer guilty of
violating Section 8(a)(I).
As was stated in the Omaha case , "One must abstract
from the decided cases what seem to be the essential
elements of such strikes, disregarding those particulars
which, though similar to the facts in other cases, are
nevertheless logically distinguishable from them." In the
instant case , there occurred a brief strike on January 29.
Management acknowledged that it had heard rumors of a
and perhaps Dirks acted precipitously and would have been well advised to
have conducted further investigation before proceeding to discharge Garza
This, however, is only suspicion , while I am completely convinced Dirks in
all good faith believed Garza to be guilty of making the threatening
remarks
12 This from the testimony of Dirks Juan Bernhard is a former
production manager who was replaced by Dirks, but their employment
overlapped for a short penod.
A. You are trying to make me say something I didn't
say.
Garza, of course, denied that he had ever made
threatening remarks to any employee.
Respondent's counsel makes a strong and persuasive
argument that in spite of the denial testimony of Garza
regarding the threatening remarks, nevertheless, Garza's
own testimony reveals he must have made the threatening
remarks. The testimony is consistent from both Brito and
Garza that Brito only related to Garza that he was being
discharged because it was known he had threatened other
employees. Yet, in spite of this limited explanation, when
Garza returned to his work area, according to his own
testimony, he told other employees, "the reason was
because they had heard too much rumors that I was going
to break windows, cut tires, threatening people if they
don't come out on strike ...." Respondent's counsel
reasons that Garza could not have made such statements to
his fellow workers unless, in fact, he was guilty of having
earlier made such threats because Brito had said nothing
more than, "threatening employees."
While the above argument is persuasive, I have reached a
similar conclusion because I am convinced that witnesses
Danny Carmona and Joseph Cisneros were frightened
witnesses who with great reluctance only hinted at Garza's
involvement in the making of threats to fellow employees. I
am convinced that Carmona and Cisneros were more
definitive and specific in their conversations with Ron
Jones, prior to the strike, and thus, when Ron Jones
reported the threatmaking to Dirks, that Dirks acted on
what he believed to be a fact. Being of the opinion the
Employer acted in good faith in discharging Rogelio
Garza, it is incumbent upon the General Counsel to prove
by a preponderance of the evidence that the alleged
misconduct did not occur.10 This General Counsel has not
done. i i
I find Garza's discharge to have been for legally
permissible reasons, and I shall recommend dismissal of
that portion of the complaint alleging the discharge of
Rogelio Garza by Respondent to be violative of Section
8(a)(1) of the Act.
B. The Walkout of Eight Employees on February
12 and the General Strike of February 13
The testimony clearly establishes that shortly following
Garza's discharge on the morning of February 12 at
around 11 a.m., "there was a big commotion in the plant
and it centered around the welding and fitting area... .
Employees were-standing about talking with each other
and Juan Bernhard at the time." 12 According to Dirks, he
10 N L R B v Burnup & Sims, Inc, 379 U S 21 (1964), see also Dallas
General Drivers, Warehousemen and Helpers, Local Union No 745, a/w IBT
[Farmers Co-operative Gin Association] v N LR B, 389 F 2d 553 (C A D C,
1968), wherein the court said "the burden of proving innocence of strike
misconduct shifted to the general counsel upon proof of a good faith belief
by the employer that such misconduct had occurred N.L R B v Plastic
Applicators, inc, 369 F 2d 495 (5th Cir 1966) "
i i General Counsel succeeded in raising a strong suspicion of innocence,
EAGLE INTERNATIONAL, INC. 1297
threatened strike and for that reason Graham ordered his
supervisors to see what they could learn of the threatened
walkout. This resulted in the hastily arranged meeting with
the "employee representatives" on the same day. Neverthe-
less, the employees went ahead with their planned work
stoppage by not returning following their afternoon break.
Once Mr. Graham spoke to the group and explained what
had just occurred at the meeting with the employee
representatives , the employees seemed satisfied to await
the next step - namely, the announcement of a competi-
tive wage based on an area survey. Surely this must be
classified as a simple economic strike temporarily settled,
or postponed, on the basis of a promised new "competitive
wage schedule."
While the Respondent sought to show that slowdowns
occurred during the next 2-week period, I am not
convinced they happened.13
The February 13 strike was an economic strike that the
employees had planned in the event the resulting wage
increases from the areawide competitive wage survey were
not satisfactory. Inasmuch as the January 29 work
stoppage had been brought to an abrupt end by the
promise of an "economic change" in 2 weeks, the general
strike action on the 13th could hardly have come as a
surprise to the Employer.
The action of the eight employees who walked out in
concert to protest the discharge of Garza was not directly
related to the economic concerns of the employees-.14
Nevertheless, their conduct was protected regardless of the
legality of Respondent's actions towards Garza because the
Supreme Court has made clear that the wisdom or
unwisdom, and justification, or lack of it, are immaterial to
the determination of the employees' rights.15 "Employers
are prohibited from discharging employees who, for
mutual aid or protection to other employees, engage in
spontaneous strikes or cessation of work." 16
When these three incidents are viewed with the wisdom
that comes with hindsight, I cannot find the critical thread
that prevailed in the cases cited by Respondent to be
present in this situation. As I perceive the First National
Bank of Omaha, supra, line of cases, there must be patterns
of conduct that leave an employer in a state of uncertainty
in order to remove their otherwise protected conduct from
the protection of the Act. This uncertainty conceivably can
be established by one incident or a series of related
incidents . The case at bar is not a situation where the
employees were seeking the right to work on terms
prescribed solely by them. To paraphrase the Board's
language in Robertson Industries, 216 NLRB No. 62 (1975),
to hold in these circumstances that these three separate
incidents establish a pattern of recurrent'and intermittent
work stoppages, would, in my view, disallow employees to
engage in more than one instance of concerted protected
13 The testimony in this regard is conflicting and of a subjective nature.
Nothing relating to troublesome slowdowns appears in either the February
5 bulletin to all employees (G.C. Exh. 3) or the February 12 Eaglegram
(General Counsel's' Exhibit No. 5) Nor was it discussed at the February 6
meeting with employees . It seems only logical that if slowdowns were a
problem during this 2-week period that management would have said so.
14 It might be stated it was indirectly related because Garza had been
named an employee representative to help resolve the problems of the
employees, which were largely economic.
activity during an indefinite period of time regardless of
the variety and number of conditions or occurrences
protested and the identity of the individuals involved. In
my view, the employees in the case at bar were merely
continuing their earlier efforts to have their work-related
problems resolved in contrast to the pattern of intermittent
and recurring partial work stoppages to be found in the
cases cited by Respondent.
I find the eight employees who were discharged on
February 12 because of their concerted protest of the
discharge of Garza, and the economic strikers of February
13 who were discharged when they elected not to report at
8 a.m., to have been unlawfully discharged in violation of
Section 8(a)(1) of the Act.
Moreover, in spite of Respondent 's counsel labeling the
argument as sheer sophistry, if I were not convinced that
the events of February 12 and February 13 were at all
times protected concerted activity, I would be disposed to
find that they became protected when Respondent offered
the striking employees the opportunity to return to work by
8 a.m. on February 13. It seems more consonant with the
realities' ' to conclude upon the facts here that Graham's
statement was such as to evidence a clear intent to
continue the employer-employee relationship and, in legal
effect, constituted a condonation of the employees' past
conduct. Thus, where an employer by his statements or
conduct evidences a lack of genuine concern about such
"misconduct" by offering continued employment despite
the prior misconduct, the law will not permit a later
reassertion of the condoned conduct as cause for removal
of the activities of the employees from the protection of the
Act.17
The testimony clearly indicates that a great many of the
striking employees went to Respondent's plant and
unconditionally offered to return to work beginning and
following February 14. (The date each employee made his
offer to return to work is shown in the appendix, if known.)
Having found the actions of the striking employees to have
been lawful and the action of Respondent in discharging
the strikers to be violative of Section 8(axl) of the Act, it
follows that Respondent's continued failure to reinstate
said employees is a separate violation of Section 8(a)(1) of
the Act.18
I do not find the actions of Respondent in calling the
local police to the plant on the morning of February 12 to
remove an employee from the plant who had been ordered
off the premises to have interfered 'with, coerced, or
threatened the employees. While Respondent's conduct
may have been unnecessary and precipitous, I do not
believe it either intimidated or was intended to intimidate
the employees in the exercise of their Section 7 rights. The
job of the police is to maintain peace and when emotions
15 N. LR B. v. Mackay Radio & Telegraph Co, 304 U S 333 (1938).
16 See N L KB. v Phaostron Instrument and Electronic Company, 344
F.2d 855 (C.A. 9, 1965), and the many cases cited therein.
17 The Colonial Press, Inc., 207 NLRB 673 (1973), enforcement denied
509 F 2d 850 (C.A 8, 1975); Brandy Helicopter Corporation, 135 NLRB 1412
(1962)
18 Cusano d/b/a American Shuffleboard Co v. N LR B, 190 F.2d 898
(C.A.3, 1951).
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are running high, they do it much better than private CONCLUSIONS OF LAW
citizens.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth above, occurring
in connection with the Respondent's operations described
in section I, above, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the
several States and tend to lead and have led to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
VI. THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, it shall be recommended that Respondent
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
The Respondent received information from three differ-
ent individuals representing three different groups, or
organizations , each claiming to represent the employees.i9
In the absence of an exclusive bargaining agent, and under
all the circumstances of this case, I find there was never an
authorized application on behalf of all of the strikers to
unconditionally return to work.20 There were, however, a
number of strikers who individually, or in groups,
personally appeared at Respondent's plant and offered to
unconditionally return to work. The attached appendix sets
forth the names of employees who were on the Respon-
dent 's payroll the week of February 12 before the strike
began , but who were not on Respondent's payroll the week
of February 19.21 There is set forth next to each name in
the appendix the date I find said employee offered to
return to work unconditionally based on the credited
testimony from the record. For those striking employees
named without a date shown, I leave for determination at
the compliance stage of this matter the date,' if any, said
striking employee offered to return to work unconditional-
ly. Respondent will be required to offer reinstatement to all
strikers to their prestrike or substantially equivalent job
with all rights' and benefits each would have accumulated
but for the discrimination against him, discharging, if
necessary, any striking employee replacement. Respondent
shall also be required to make whole each of the striking
employees for any losses in pay they may have suffered as
a result of the Company's failure to reinstate them
beginning 5 days after their unconditional application for
reinstatement was, or is, made. Any backpay will be
determined in accordance with the formula set forth in F.
W. Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
19 Jim Douglas, the Legal Aid attorney who presented a list of employee
demands to Respondent 's legal counsel, Mr Duncan , Mr Barrera, the
organizer for the Amalgamated Meat Cutters and Butchers Union, who
called Mr Duncan and sought to arrange a meeting for the purpose of
proving his union 's majority status , and the mailgram sent by Roy
Hernandez , organizer for the UAW, but signed "the production and
maintenance employees "
20 R C Can Company, 140 NLRB 588 at 599 (1963); enfd 328 F.2d 974
(CA 5, 1964)
2i Not including, however , Benito Gonzalez, Jr, who was rehired on
February 13 and quit the same day, and Reynel Celis and Sergio Leal who
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discharging and thereafter refusing to offer
reinstatement to those eight named employees who
concertedly protested the discharge of Rogelio Garza on
February 12, and those employees named in the attached
appendix who participated in- the general strike on
February 13, 1975, and by refusing to offer reinstatement
to those striking employees who have offered to uncondi-
tionally return to work, Respondent interfered , with,
restrained, and coerced said employees in the exercise of
their rights guaranteed in Section 7 of the Act and has
thereby engaged , and is engaging, in unfair labor practices
within the meaning of Section 8(a)(I) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Those allegations of the complaint not specifically
found herein to be violative of the Act are to be dismissed.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire'record in this case, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER 22
Respondent , Eagle International , Inc., Brownsville,
Texas, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging employees engaged in the lawful concert-
ed protest of the discharge of a fellow worker.
(b) Discharging or otherwise discriminating against
employees engaged in a lawful strike.
(c) In any other like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer to those striking employees shown on the
attached appendix who have made, or may make,
unconditional offers to return to work, immediate and full
reinstatement to the named employee's former job,
dismissing, if necessary, anyone who may have been hired
or retained to perform the work which each employee
respectively had been performing prior to the time said
employee was discharged, without prejudice to his seniority
or other rights and privileges and make each whole for any
loss of pay he may have suffered as a result of the unlawful
were rehired on February 26 (see G.C. Exh. 10) The Respondent should be
permitted to show during the compliance stage of this matter if the appendix
includes names of individuals whose severance from the payroll was totally
unrelated to the incidents discussed herein.
22 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions and recommended Order herein shall, as provided in -Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions and Order and all objections thereto shall be
deemed waived for all purposes
EAGLE INTERNATIONAL, INC.
discharge in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Preserve and make available to the Board, or its
agents, all payroll and other necessary records to compute
the backpay and reinstatement rights as set forth in "The
Remedy" section of this Decision.
(c) Post at its Brownsville, Texas, facility copies of the
attached notice marked, "Appendix A," which is to be
printed in both the Spanish and English languages.23
Copies of the notice on forms provided by the Regional
Director for Region 23, after being duly signed by
Respondent's authorized representative, shall be posted by
Respondent immediately upon receipt thereof and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
23 In the event the Board's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the National Labor Relations
Act and has ordered us to post this notice, and we intend
to carry out the Order of the Board.
The Act gives all employees these rights:
To engage in self-organization
To form, join or help unions
To bargain collectively through a representa-
tive of their own choosing.
To act together for collective bargaining or
other mutual aid or protection
To refrain from any and all these things.
WE WILL NOT do anything that interferes with,
restrains, or coerces you with respect to these rights.
WE WILL NOT threaten you with discharge, or
discharge employees who engage in lawful protected
concerted activity.
WE WILL NOT discharge you if you engage in a lawful
strike or other protected work stoppage.
WE WILL offer the striking employees named below
full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges previously enjoyed, dismissing, if necessary,
any replacements, and make each whole for any loss of
pay he may have suffered as a result of our discrimina-
1299
tion against him in the manner set forth in that section
of the Decision herein entitled, "The Remedy."
BADGE NAME
210 Alaniz, Gilberto (2-17-75)
490 Alaniz, Jose L. (2-17-75)
183 Alcala, Hector D.
286 Alfaro,Juan R. (2-17-75)
235 Alfaro, Victor (2-17-75)
368 Alvarado, Mario
406 Alvarez, Vicente
451 Arreaga, Alberto (2-15-75)
211 Arroyo, Jose Reyes
495 Barrera, Jesus
449 Bejarano, Jose L.
254 Bennett, Felix Lugo Jr.
369 Borjas, Guadalupe (2-17-75)
359 Cantu, Jose a.
147 Cantu, Fidencio (2-15-75)
263 Cardenas, Gilbert C. (2-17-75)
215 Carrillo, Jose R.
304 Casteneda, Jamie H. (2-17-75)
133 Castillo, Ovidio M. (2-15-75)
154 Castro, Modesto Z.
236 Cavazos, Armando (2-17-75)
297 Coronado, Santos J. (2-17-75)
346 Diaz, Baldomero (2-15-75)
372 Escobedo, Mario (2-15-75)
136 Esparza, Arnoldo
424 Espinoza, Gilberto (2-17-75)
442 Flores, Antonio G. (2-15-75)
397 Flores, Gilbert A.
289 Flores, Eloy
363 Gallegos, Santiago R. (2-15-75)
378 Garcia, Diego (2-15-75)
467 Garcia, Humbert L.
125 Garcia, Jesus G. (2-14-75)
256 Garcia, Johnny (2-15-75)
341 Garcia, Jorge
402 Garcia, Jose R. (2-15-75)
157 Garcia, Rosendo Jr. (2-17-75)
271 Garza, Ernesto
432 Garza, Jose C. (2-15-75)
217 Garza,'Jose R. (2-17-75)
376 Garza, Francisco
190 Gomez, Edwardo J. (2-15-75)
198 Gonzalez, Alfredo Jr. (2-15-75)
355 Gonzalez, Benito (2-15-75)
155 Gonzalez, Guadalupe
489 Gonzalez, Jose (2-17-75)
258 Gracia, Hector
113 Gracia, Jesus Jr.
374 Gracia, Valentin
118 Haggstrom, Jose T. Jr. (2-17-75)
338 Hernandez, Francisco (2-17-75)
455 Hernandez, Jesus I. G. (2-17-75)
173 Herrera , Benito
307 Hinojosa, Epitacio (2-17-75)
324 Huerta, Josa A. (2-15-75)
196 Jaramillo, Manuel Jr. (2-17-75)
311 Jasso, Federico (2-15-75)
350 Jimenez, Eladio
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
443 Landin, Jose -114 Rodriguez, Reyes
197 Longoria, Brigido (2-15-75) 158 Rodriguez, Rodolfo L. (2-17-75)
199 Lopez, Alberto V. 150 Rodriguez, Rosendo (2-17-75)
153 Lopez, Ramon (2-15-75) 268 Rodriguez, Sergio (2-15-75)
413 Lozano, Jesus M. 225 Rodriguez, Rogeho
422 Lugano, Hector (2-15-75) 145 Salazar, Jose (2-15-75) -
218 Macias, Jose G. (2-15-75) 277 Salazar, Filemon (2-17-75)
219 Marquez, Cirilo (2-17-75) 226 Saldana, Robert
245 Marquez, Jose D. J. (2-17-75) 327 Salinas, Pete (2-14-75)
353 Martinez, Fausto 447 Sanchez, Arturo
234 Martinez, Rafael 317 Sanchez, Reymundo C.
496 Morroquin, Juan 270 Sanchez Rosendo (2-15-75)
444 Marroquin, Rogelio 294 Sepulveda, Jesus (2-17-75)
344 Media, Benjamin (2-15-75) 420 Silva, Jesus F.
298 Morales, Sabino C. (2-15-75) 169 Tamayo, Francisco (2-15-75)
498 Moreno, Raul D. (2-17-75) 461 Tamayo, Francisco J. (2-17-75)
220 Munoz, Isidro (2-17-75) 459 Tavares Miguel A.
499 Olguin, Juan M. 269
,
Tijerina Juan A.
260 Oliveira, Rodolfo 142
,
Uribe Hugo (2-17-75)
303 Oro eza Rafael G (2-15-75)
,
,p . 395 Valdez, Benito
284 (2-15-75)Oyuela Jose J, . 228 Vasquez Manuel R (2-15-75)
494 (2-17-75)Palafox Felipe S
, .
, . 250 Velez Alejandro (2-15-75)
222 RodolfoPineda
,
,
112 Villanueva W Enri ue Jr (2-19-75)177 Pizana losue G. (2-15-75) . q,,
104 Ward Harr James (2-15-75)203 Perez Felipe De Neri (2-17-75) , y
339
,
Rangel Santiago R. 470 Wilborn, Jack K.
326
,
Resendez Alejandro R. (2-15-75) 310 Zamora, Raymundo (2-15-75)
438
,
Rodriguez Saul 333 Zumga, David
306
,
Rodriguez Simon (2-17-75) The following named individuals were stipulated as
458
,
Rubio, Manuel R. having offered to return to work and are not included in
453 Ruiz Jose A. the above group:
446 Rocha, Pedro G. (2-15-75) 259 Garcia, Juan (2-15-75)
160 Rodriguez, Jesus L. 365 Anderson, William D. (2-15-75)
343 Rodriguez, Jose L.
401 Rodriguez, Ramiro A. (2-17-75) EAGLE INTERNATIONAL, INC,