Essex International, Inc.

National Labor Relations Board - Board Decisions

Jan 12, 1976

222 N.L.R.B. 121 (N.L.R.B. 1976)

ESSEX INTERNATIONAL, INC. 121
Essex International, Inc. and International Union of
Electrical, Radio and Machine Workers, AFL-
CIO-CLC. Cases 25-CA-5955 and 25-CA-5955-2
January 12, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS PENELLO
AND WALTHER
On April 30, 1975, Administrative Law Judge Mil-
ton Janus issued the attached Decision in this pro-
ceeding. Thereafter, General Counsel filed excep-
tions and a supporting brief, and Respondent filed
an answering brief to General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached 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.
rector of Region 25, issued an Amended Consolidated
Complaint on April 29, 1974,1 alleging that Respondent
had engaged in unfair labor practices within the meaning
of Section 8(a)(l), (3), and (5) of the National Labor Rela-
tions Act, in respects to be particularized below. Respon-
dent filed an answer denying the commission of the alleged
unfair labor practices.
A hearing was held before Administrative Law Judge
Harold X. Summers at Fort Wayne, Indiana, on May
14-16, 1974. Following the conclusion of the hearing Ad-
ministrative Law Judge Summers became unavailable to
the Board, within the meaning of Section 554(d) of the
Federal Administrative Procedure Act and Section 102.36
of the Board's Rules and Regulations, Series 8, as amend-
ed, to issue a decision based on the record made before
him in this proceeding. All parties consented to waive a
hearing de novo and to the issuance of a decision by anoth-
er Administrative Law Judge based on the record made
before Administrative Law Judge Summers. On February
12, 1975, the Chief Administrative Law Judge duly desig-
nated me as the Administrative Law Judge for issuance of
a decision on the record heretofore made.
Upon consideration of the entire record in the case, and
the briefs filed by the parties with Administrative Law
Judge Summers, I make the following:
FINDINGS OF FACT
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint herein be, and it hereby is,
dismissed in its entirety.
'Contrary to the Administrative Law Judge's finding in fn 16 of his
Decision, the record reveals that the General Counsel did attempt to amend
the complaint at the hearing to include the polling as a violation of Sec
8(a)(1). Although Administrative Law Judge Summers, who presided at the
hearing, did not permit the amendment , he did permit the General Counsel
to elicit evidence regarding the polling . We find , however, in agreement with
the Administrative Law Judge's Decision, that the matter was not fully
litigated and that the record was not thereafter sufficiently developed to
support a violation of the Act.
The General Counsel excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd 188 F .2d 362 (C A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
MILTON JANUS, Administrative Law Judge: Upon charges
filed by the above-named Union, the General Counsel of
the National Labor Relations Board, by the Regional Di-
I. THE BUSINESS OF THE RESPONDENT
Respondent is a Michigan corporation with its principal
office and place of business at Fort Wayne, Indiana. It
operates manufacturing facilities in various States, but this
proceeding directly concerns only a facility, known as the
Goshen Road plant, located in Fort Wayne. Respondent is
engaged at its various plants in the manufacture, sale, and
distribution of metal and plastic products, used principally
in the automotive industry. During a recent representative
period, Respondent purchased, transferred, and delivered
to its Goshen Road plant goods and materials valued in
excess of $50,000, which were transferred directly from
States other than Indiana. Respondent admits, and I find,
that it is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATIONS INVOLVED
The Charging Party, International Union of Electrical,
Radio and Machine Workers, AFL-CIO-CLC, and its
Amalgamated Local 998 are labor organizations within the
meaning of Section 2(5) of the Act. They will be referred to
as IUE and Local 998, or collectively as the Union.
i The original charge in Case 25-CA-5955 was filed on November 19,
1973, and the original charge in Case 25-CA-5955 2 was filed on December
5, 1973. A consolidated complaint based on these charges was issued on
February 28, 1974. On March 11, 1974, the Charging Union filed amended
charges in both cases , and thereafter, as noted above , an Amended Consoli-
dated Complaint was issued on April 29, 1974.
222 NLRB No. 6
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
General Statement of the Issues
After bargaining to an impasse over the terms of a new
agreement, and upon the expiration of the then current
agreement, the Union first sought to induce its unit mem-
bers at the Goshen Road plant to resign their employment,
and then, some 4 or 5 days later, called a strike. The strike
was unsuccessful, and a.month or so thereafter, the Union
made an unconditional application on behalf of all its unit
members to return to work. Some of the strikers had al-
ready returned, and of those who were still on strike, the
Company reinstated all but 15 who, it claimed, had aban-
doned their employment, by resignation or otherwise, be-
fore the inception of the strike. About 2 months later, the
Union advised the Company that it would unconditionally
accept the Company's last contract offer, which it had ear-
lier rejected and which had caused the impasse in bargain-
ing. In the meantime, some of the employees had filed a
petition with the Board to decertify the Union. For this
and other reasons, the Company asserted that it had a
good-faith doubt of the Union's majority status, and re-
fused to enter into any agreement until that question was
resolved.
The complaint alleges that Respondent violated Section
8(a)(3) by its refusal to rehire or reinstate the 15 employees
whom the General Counsel regards as strikers; that it vio-
lated Section 8(a)(5) by wrongfully withholding recognition
from the Union; and that it violated Section 8(a)(1) by
certain acts engaged in by supervisors and/or agents dur-
ing and after the strike.
It is the position of the Respondent that the 15 men
whom it refused to reinstate were not strikers, but only
former employees who had abandoned their employment
with it before the inception of the strike; that, as to the
refusal to bargain allegations, it did not withdraw recogni-
tion as such, but only sought, in view of the decertification
petition and a poll of the employees (which showed that a
majority was opposed to further representation by the
Union) a resolution of the Union's representative status.
As for the 8(a)(1) allegations, the Company denies that the
facts proven constitute a violation of that section.
The Facts
1. Before November 5, 1973
On August 10, 1973, the Union advised,the Company of
its intention to modify the existing agreement. Galucci, the
Company's' vice president for, industrial relations, phoned
Gould, an IUE representative, to request an informal meet-
ing to discuss the forthcoming negotiations. Gould told
Galucci that another international representative, Nolan,
would be the union official assisting Local 998 in the nego-
tiations. Gould and Nolan then met with Galucci, when
they discussed generally the issues which might arise in
their -bargaining for a new contract. On most of the points
raised by Nolan, Galucci said that he had an "open mind"
and assured him that the Company would give the Union's
demands its serious attention. On Nolan's request that the
Company institute a pension program for the Goshen
Road plant, Galucci however indicated that the Company
would "be tough," because in his view the plant had not
been in operation long enough to justify a pension pro-
gram.
Formal negotiations began on September 21, and be-
tween that date and October 31, the expiration date of the
current contract, there were 10 meetings. The Union's ne-
gotiators were Nolan and the four members of the plant's
bargaining committee: Weigold, Mitchell, Reid and Ham-
ilton. Also in attendance at some of the meetings was
Nuell, president of Local 998, who was employed by an-
other firm. Representing the Company were Tucker, of its
legal staff, and Durbin, the plant manager.
Some of the bargaining issues were settled` during the
negotiations in October, but as the end of the month ap-
proached, there were still a number of unresolved disputes
as to the contract terms. On October 31, the expiration
date, the parties met with Federal mediators present. The
Company was asked to prepare a written offer as to the
unsettled matters, and after a recess, the meeting resumed
in the early evening. The union representatives examined
the Company's offer in private, and then came together
with the company officials. Nolan told them that the
Company's proposal was completely unacceptable to the
Union, and suggested that the company negotiators go
over its proposal again, and make a "last final offer" within
the next few days, during which the contract would be ex-
tended.
Nolan -also said that if the Company's next offer con-
tained no major changes from its last proposal, he would
be unable to recommend its ratification to the members. In
fact, he said, he would then recommend that the unit em-
ployees, about 44 in number, quit their employment. He
asked the bargaining committee members if they would
quit under those circumstances, and each replied that he
would. The parties agreed to extend the contract through
Sunday, November 4, that the Company would present its
"final" offer on Friday, November 2, which would then be
considered at a union meeting to be held on Saturday, and
that the Company would be notified of the membership's
decision on Sunday.
On Friday afternoon, the Company submitted its prom-
ised "final" proposal to the negotiating committee mem-
bers at the plant. They phoned Nolan to tell him that it was
not substantially different from the one presented on Octo-
ber 31. That evening they met with Nolan, and it was then
that.he unveiled his scheme to shock the Company into
Even though the General Counsel is not contending that
the Company bargained in bad faith before October 31,
1973, some background information on the negotiations
between the Company and the Union is necessary to un-
derstand the events which followed. -
IUE was certified in August 1969, as the bargaining rep-
resentative for a production and maintenance unit at the
Company's Goshen Road facility in Fort Wayne. The par-
ties reached an agreement, effective November 1, 1969,
through October 31, 1973. Local 837 of the International
Union was also a party to the agreement, but on May 22,
1973, the parties agreed to substitute Amalgamated Local
998 for Local 837.
ESSEX INTERNATIONAL, INC. 123
realizing that it would have to come up with a much better
offer. A normal strike, he said, would not do, since the
Company had survived many of those. His suggestion was
that the unit employees, many of whom had machine tool
skills which were then in short supply in the Fort Wayne
area, be persuaded to quit their employment, rather than
strike, so as to impress on the Company the real possibility
that the plant might be forced to close and go out of busi-
ness. Nolan, however, also told the committee members
that this was a story that the Company had to be induced
to believe if it were to be successful, but that in fact he
contemplated switching the quit program into a traditional
strike if there were no favorable results in the next few
days. He impressed on the committee members the impor-
tance of not revealing to their fellow employees that there
was a strike alternative in the offing, since to do so would
surely come to the Company's attention, thereby de-
stroying the intended impact of a mass resignation. The
committee agreed to follow Nolan's strategy.
The next day, Saturday, November 3, approximately 34
of the 44 unit members met to consider the Company's last
proposal. Nolan and Weigold, chairman of the bargaining
committee, expressed their opinion that the offer was unac-
ceptable, and the committee recommended that it be re-
jected. The members present then voted unanimously by a
show of hands, to reject the Company's offer. Next, in ac-
cordance with Nolan's strategy, the committee recom-
mended that the employees quit their jobs at the plant,
rather than strike. This brought about an extended discus-
sion during which Nolan, holding to his "cover story," said
that he intended to put the plant out of business, since it
would be unable to find enough skilled employees to con-
tinue operations. He also promised that those who quit
would be assisted by the International and the Local in
finding new jobs .2 Nolan's answers to employees' questions
were all designed to impress on them his intention to force
the Company to close the plant down permanently. Some
of the employees had left the meeting by this time, but
those remaining voted unanimously for the committee's
recommendation that they all resign their employment
with the Company. There was also some discussion about
when the resignations should take effect, and it was agreed
that some would stay on for a while, but that others would
resign immediately. -
On Sunday, November 4, Nolan and the bargaining
committee met with the Company negotiators and in-
formed them that the membership had voted unanimously
to reject the, Company's last offer and to resign en masse.
Nolan explained the decision of the employees to resign as
being based on their opinion that a strike was useless under
the circumstances. Nolan also told the Company officials
that perhaps there would be no one at work the next morn-
ing, that the resignations of the bargaining committee
members were effective immediately 3 and that three of the
four had already lined up other jobs. Tucker asked Nolan
if there would be any more negotiating meetings, to which11 1-
2 Job application forms for other plants in the area were distributed dur-
ing the meeting.
Based on the testimony of Tucker and Durbin Nolan's testimony on the
point was that he could not recollect saying this at the meeting.
Nolan replied that since the employees were quitting, there
was no need for a contract. Tucker then observed that
there was now an impasse in the negotiations, and Nolan
conceded as much.
A separate aspect of this case concerns the Union's orga-
nizing campaign at another company plant, located -in a
nearby town, Coesse, during this period. Its significance in
this proceeding will be explained later, and it is sufficient
for now merely to note the fact that the Company was
aware, at least by mid-November, that the Union was en-
gaged in organizing the Coesse plant employees.
2. November 5 to December 12
The plant had been operating with two shifts during the
negotiations for a new contract. On Monday, November 5,
a number of employees reported for work on each shift,
but a substantial percentage, including the 15 who are al-
leged in the complaint as having been discriminatorily re-
fused rehire or reinstatement, did not work that day. The
employees who did report for work on the 5th were called
into a meeting, one on each shift, when Tucker, the chief
company negotiator, told them that there was an impasse
in bargaining for a new agreement, and that certain wage
and insurance improvements, previously offered to the
Union, would be put into effect immediately 4 At each
meeting some employees expressed dissatisfaction over
their representation by the Union, and asked how they
could get rid of it. Tucker told them he could not give them
any answers.
Between November 5 and the afternoon of November 8,
there was no picketing at the plant, no indication or expres-
sion from the Union that it was on strike, and no negotia-
tions. Production continued with less than the full comple-
ment of employees.
Respondent bases its contention that the "15" had un-
equivocally abandoned their employment with it by No-
vember 8, on the following undemed facts:
1. The four members of the plant bargaining committee,
Weigold, Reid, Hamilton, and Mitchell, acquiesced in
Nolan's statement to Tucker at the October 31 meeting,
that if the Company's final offer, to be submitted by No-
vember 2 was no improvement, they would resign. Again,
at the final meeting on November 4, they also acquiesced
in Nolan's statement that their resignation was immedi-
ately effective. Furthermore, on November 6, Weigold and
Hamilton, accompanied by others of the "15" (Keener,
Knecht, Phillips, and France) came into the plant and sub-
mitted resignation slips which were prepared by Plant
Manager Durbin, at their request, which read as follows:
November 6, 1973
I (signature inserted) have resigned from Essex Plant 18
at 2817 Goshen Road on November 5, 1973.
/s/ F.D. Durbin 11/6/73
Reid was one of the group which came to the plant to
submit their written resignations but he left before the
form's could be prepared. He did not indicate that he had
any intention other than to resign. Mitchell, the remaining
4 The General Counsel does not contend this to be an independent viola-
tion of Sec. 8(a)(5)
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
member of the bargaining committee , was not one of this
group, but as indicated above, he had made no objection
when Nolan told the Company negotiators on November
4, that the resignations of the committee members were
effective immediately.
The circumstances under which the remaining seven of
the "15" were terminated are as follows:
2. Osmun and Sexton did not report for work from No-
vember 5 through 8, nor did either call the Company to
explain his absence. Under the Company's publicized rule
that a 3-day unexplained absence constitutes a voluntary
quit, the Company treated them as terminated as of No-
vember 8.5 The Company points out that the other employ-
ees who also did not report for work on these days but who
phoned in with an excuse for their absences , were not con-
sidered as terminated , and were in fact reinstated after the
strike , which began on November 9 and ended December
12.
3. Brown's wife phoned the plant on November 6 to re-
port him ill. Plant Superintendent Estes called him the next
day, and Brown then told him that he had a job with an-
other company if he could lose some weight in the next
week . Estes told him he couldn 't wait for him to try anoth-
er job , and Brown then responded that he would have to
quit.
4. Fulecki's wife called in to report him ill about No-
vember 6, when he was applying for a job at a trucking
company. The next day Estes called Fulecki , who was out.
When Fulecki called back, Estes told him his job was avail-
able, there was no strike , and other employees had report-
ed for work. Fulecki then informed Estes that he had
found a job as an auto mechanic with another company.
5. Knight and Lindemann . Each came into the plant
separately about November 6 to tell Estes that he was quit-
ting. Estes did not question either one further.
6. Maggard had applied for a job at an International
Harvester plant some months before, had been interviewed
on October 17, and had passed the physical examination
for the job. About November 6, he came to the Essex plant,
told Estes that he was going to work for International Har-
vester the following Monday, and checked out his tool box.
During the next few days , the Union leadership contin-
ued to publicize its official position that its members were
not on strike, but had either resigned or would do so short-
ly. In a newspaper article in the Fort Wayne Journal-Ga-
zette on the 7th, Weigold was quoted as saying , "It was
never a question of if we would quit , but when," that many
of the employees had already lined up jobs before Sunday
night and had just wanted to see what the Company's final
offer would be. The article went on to give Nolan's expla-
nation of the decision to resign rather than strike as due to
the opinion of the members that it was pointless to contin-
ue negotiations with the Company, and that the best way
to make their point with Essex was to quit and force the
Company to close down the Goshen Road plant.
That the article was an accurate summary of the Union's
position as of November 7 can be seen from a leaflet which
5 Osmun did not testify but Sexton did The General Counsel did not ask
him why he had not reported for 3 days. He admitted that he had filed job
applications with two other firms in the area during this period
it distributed that day to the plant employees . It reads in
part as follows:
Many rapid-fire events have happened since last Sat-
urday when our Membership voted unanimously to
reject the Company's final "rag contract" offer, and
voted unanimously to resign our employment at Es-
sex.
As you know, many guys have already found other
jobs, others are making applications for jobs with
other employers , and everybody involved is helping us
get better jobs in a better place to work.
And we certainly have no fight with our fellow mem-
bers who are still working in the plant just because
they have not yet found another job. We will continue
to help everyone of you get another job-where the
wages are good , where you don 't lose your pants when
illness strikes-where you have a pension-where you
have good holidays and vacation-and where you can
work without the typical Essex pressures around you
day to day. Believe it, many of us have already found
those places, and we'll help you find places like that
too.
When most all our 44 members are relocated in a bet-
ter place to work, it is logical to expect that the Gosh-
en Road plant cannot and will not be kept in opera-
tion . So help yourself find a job . . . and let us and
IUE help you find a job. Give us a call or stop by the
Union office, because we're all helping one another.
Despite the optimistic language, it was becoming clear
that Nolan's strategy was unsuccessful . Not only had it
failed to bring forth a better offer from the Company, but
most of the employees were back at work, and apparently
uninterested in seeking other employment. About midday,
November 8, the Union issued another leaflet , pointing out
that in the past few days employees at three other Essex
plants in Indiana and Michigan had gone out on wildcat
strikes, that the action of the Fort Wayne plant employees
had "renewed their will to fight the giant ," and that these
developments had caused the Union to reconsider its next
course of action . It then announced a special meeting to be
held that afternoon of all its members, both those in and
out of the plant.
Eighteen or twenty attended the special meeting, among
them some of the "15." Weigold chaired the meeting, and
recommended that the Goshen Road employees now go on
strike . Those present voted unanimously to do so, and later
that day another 9 or 10 employees either stopped in at the
union office or phoned in to vote in favor of a strike. As
the second shift was already at work , it was decided that
strike action would not begin until the next morning, Fri-
day, November 9. Nolan then phoned Durbin to tell him
that a strike had been called, and asked him to let Tucker
know.
The strike thus began on November 9. It ended on De-
cember 12, when the Union officially called it off. No unit
employees worked there until about December 5, when a
few of the strikers individually abandoned the strike, re-
ESSEX INTERNATIONAL, INC. 125
signed from the Union and returned to work.
The Company and the Union engaged in some contacts
and dealings during the strike. On November 9, Nolan
asked Tucker to submit a complete draft of a contract, with
those-provisions on which agreement had been reached be-
fore October 31, and those contained in the Company's last
offer on November 2. Tucker finally agreed to do so, al-
though he insisted that Nolan already had all the informa-
tion he was asking for. On November 14, Tucker wrote
Nolan, again complaining that the consolidated proposal
Nolan wanted was merely a clerical compilation of infor-
mation he already had, and warning him against miscon-
struing the Company's intentions. Tucker went on to ad-
vise Nolan that "We agree with your strong position that
an impasse has been reached and that further negotiations
would serve no purpose." The next day Nolan responded
by letter that he and the negotiating committee had regret-
fully acknowledged on November 4, that an impasse then
existed, but that he had since made it clear in their phone
conversations that the Union was ready and willing to re-
sume negotiations at the request of the Company or the
Federal mediator service.
The following day, November 16, Nolan again wrote
Tucker, advising him that the Union had not relinquished
its bargaining rights and was ready to meet and negotiate
further with the Company. He also listed the names of all
those in the bargaining unit at the expiration of the old
agreement , which included the "15," all of whom he con-
sidered to be currently members of the unit. On November
20, Tucker responded to Nolan's letter of the 16th, advising
him that 29 of those listed retained current status as em-
ployees, but that the remaining 15 had effectively resigned
their employment with Essex before the inception of the
strike. The same day, Tucker also submitted to Nolan, by
separate letter, the consolidated draft of the proposed
agreement which Nolan had earlier requested. Tucker said
in his letter that since the Union had appeared to be willing
to make concessions, the Company was agreeable to meet-
ing with it on November 30 or December 3.
On December 3, the parties met with a Federal mediator
present. The mediator announced that the Union had re-
quested the meeting, and was ready to' make offers which
might settle the unresolved issues, so that the previous im-
passe was now at an end. When the Union started to make
an oral proposal, Tucker insisted that it be presented in
writing so that the Company could give it an adequate
review. Nolan agreed to try to'put the Union's proposals in
writing in the next few days. On December 7, Nolan sent
Tucker a presentation of the Union's current position on
various bargaining issues, calling attention to the fact that
it was making substantial changes from its past position.
He also set out his version of the general state of the
Union's and Company's attitudes toward negotiations
since the inception of the strike, claiming that it had been
ready to resume negotiations from November 9 on, that it
had confirmed its willingness to modify its proposals on
December 3, and had, in fact, offered many modifications.
He also claimed that the Company had maintained since
November 4 that an impasse existed and had adopted a
noncompromising attitude, refusing to make even minor
changes from its last proposal.
On December 12, the parties again assembled, but sat
apart dunng much of the session, with the Federal media-
tors moving from one side to the other, transmitting pro-
posals and attempting to reconcile their differences. The
Union now made an unconditional offer on behalf of all 44
members of its unit to return to work, asking only that they
be allowed a few days in which to report. The Company's
response was that it would review its production needs and,
to the extent justified, would recall the 29, whom it regard-
ed as strikers, but would not recall the 15 who had resigned
or otherwise indicated that they were no longer interested
in working for it. The Union then offered, through the
mediators, to accept the Company's "final offer" of No-
vember 2, provided the "15" were among those recalled.
The mediators presented this to the company negotiators,
but it was rejected. On their own, the mediators had also
suggested to the Company that it accept the Union's pro-
posal for ending the strike, by recalling the "15," without
seniority rights, leaving that issue to be settled through ar-
bitration or Board litigation. The-Company rejected that
proposal too.
The meeting thus ended with the Union having made an
unconditional offer on behalf of all those employed as of
November 2 to return to work, while the Company offered,
subject to a study -of its needs, to reinstate only the 29
whom it considered as strikers. I regard the strike to have
ended as of December 12. Within the next few days, the
Company did, in fact, reinstate all of the 29. Four new
employees had been hired during the strike, and between
December 12 and February 19, another eight new employ-
ees were hired.
During this period and thereafter, the Union, the Com-
pany and individual employees filed charges and petitions
with the Board which bear on the issues in this case. The
original charge in this proceeding, alleging a violation of
Section 8(a)(5) on the part of the Company, was filed by
the Union on November 19; and on December 5, the
Union filed another charge alleging that the "15" had been
illegally terminated by Respondent's letter of November
20.
On November 29, the Company filed a charge alleging
that the Union had illegally refused to bargain with it. The
Regional Director refused to issue a complaint thereon, on
February 28, 1974, and the Company then appealed his
action to the General Counsel. The appeal was denied on
April 25, 1974.
On November 14, 1973, two employees in the bargaining
unit filed a petition for decertification, which they later
withdrew. However, on December 7, two other employees
filed a petition to decertify the Union at the Goshen Road
plant (Case 25-RD-383), which the Regional Director dis-
missed on April 30, 1974, by reason of his issuance of the
amended complaint in this proceeding the day before, con-
taining, inter alia, an allegation that the Company had un-
lawfully withdrawn recognition from the Union on or
about February 19, 1974.
3. After December 12
After the strike ended, IUE Representative Gould at-
tempted to work out a settlement with Company Vice Pres-
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ident Galucci, and after some delay they met early in Janu-
ary. Gould suggested that a longer term contract might
solve their problems, but Galucci pointed out that a decer-
tification petition had been filed and was then pending.
Gould suggested arbitration of the return of the "15," Ga-
lucci rejected it, but promised to reexamine their individual
circumstances under which they had quit, and to give them
the benefit of any doubt on the matter. The matter of the
organizing then going on at the Coesse plant also was dis-
cussed, particularly whether the Union might end its ef-
forts there in exchange for a settlement of the Goshen
Road plant dispute, including reinstatement of some or all
of the "15." Since Gould and Galucci each attributed the
proposal to trade off Coesse for a settlement of the Goshen
Road dispute to the other, I will consider the matter later,
in connection with the testimony of other witnesses who
were also involved in attempting to work out the differ-
ences between the Company and the Union.
In mid-January, about a dozen of the unit employees
met at the Union's office to deal with the problems caused
by the fact that none of the bargaining committee's mem-
bers were still employed at the plant, being among the un-
reinstated "15." A "temporary" committee to represent the
Union's interests at the plant was then selected, consisting
of, union members Tackett,- Crawford, Guenther, and Led-
better, all of whom had been reinstated.
On February 7, 1974, the Union filed a representation
petition for a production and maintenance unit at the
Company's Coesse plant. An election was held on March
29, in which the Union failed to win a majority of the votes
cast.
On February 11, the Union, by letter,, made an "uncon-
ditional offer to execute and make effective all terms, con-
ditions and provisions of the collective bargaining agree,
ment as presented to the Union as the Company's final
offer in and enclosed with your letter of November 20,
1973."
On February 18, 1974, an attorney in Fort Wayne, Don-
ald Strutz, representing the employees who had filed the
latest decertification petition, wrote Galucci, confirming an
earlier telephone conversation, in which he put Galucci on
notice that a majority of the plant employees no longer
wished to be represented by IUE, and that if the Company
nevertheless executed an agreement with the Union, it
would be invalid and might subject the Company and the
Union to liability for the repayment of dues deducted un-
der the terms of the union shop and checkoff provisions.
Strutz proposed, "as the quickest and simplest method of
resolving this matter, an immediate formal election in the
plant under the same kind of laboratory conditions as
would prevail under an NLRB election. If the majority of
the employees vote against the Union, as we are confident
they will, the execution of the IUE labor contract would
obviously be illegal."
-The next afternoon, at the time of the- shift change,
Tucker called a meeting of the employees in the cafeteria.
He told them of the receipt of Strutz' letter, and said that
he would like to know how many employees still wished to
be represented by IUE, so that the Company could decide
what to do. A vote by them, he suggested, would be help-
ful, but was not required. He told them they could select
their own judges for an election, and that no management
officials would be present. The management officials then
left and, presumably, a vote was taken. No one testified at
this hearing as to the mechanics of how the voting took
place, but Durbin testified that he had been subsequently
informed that 19 employees had voted against further rep-
resentation by IUE and 11 had voted for such representa-
tion.
Later that day, February 19, Tucker answered the
Union's letter of February 11. Tucker said he thought the
best and quickest way to resolve all pending matters would
be for the Board to conduct an immediate election on the
pending decertification petition, but that the Union had
refused to agree to that procedure. He went on to say that
the Union's offer to execute a contract based on the
Company's offer of November 2 would not be practical,
and would also be in violation of the Act. His conclusion,
he said, was based on the timely RD petition and his strong
good-faith doubt of the representative status of the Union-
which was substantiated by an employee poll wherein, "of
the 30 employees voting by secret ballot, 19 employees in-
dicated they no longer wished to be represented by the
IUE." Tucker concluded by, repeating that he wished to
resolve the dispute as quickly as possible, and would be
willing to meet with Nolan in the presence of Federal med-
iators and/or NLRB personnel, but only if the Union
would agree to the holding of a prompt NLRB election.
There was no response from the Union.
As indicated previously, the initial complaint in this pro-
ceeding was issued on-February 28, alleging a violation of
Section 8(a)(3) and certain independent violations of Sec-
tion 8(a)(1). On the same day, the Regional Director dis-
missed- the Company's charge against the Union of an ille-
gal refusal to bargain. On April 29, the final amended
complaint was-issued, adding a violation of Section 8(a)(5)
to the previous allegations,-while on April 30, the decertifi-
cation petition was dismissed.
The 8(a)(1) Allegations
Paragraph 5 of the complaint alleges a number of sepa-
rate incidents occurring between November and January,
as constituting violations of Section 8(a)(1).
The first of these took place at the plant on November 6,
before the Union's call for a strike. Among the employees
who worked that day was Tackett, a screw machine opera-
tor-trainee who had been employed about 9 months. Tack-
ett testified that his foreman, Manning, after asking how he
was doing, said that if the Union got out, the Company
would make him a Class A operator, the next higher classi-
fication. When Tackett expressed some doubts about it
since he hadn't been employed long enough for a promo-
tion, Manning said, according to Tackett, that his efficien-
cy was high enough and his production as good as most of
the operators.
Manning was unable to testify at the hearing because of
illness, but after the hearing closed, Administrative Law
Judge Summers accepted, on Respondent's motion, a de-
position of Manning's in which he denied that he had told
Tackett he would be made an operator A if the Union got
out, or that he had ever discussed promotional possibilities
with him.
ESSEX INTERNATIONAL, INC. 127
The allegation of the complaint based on Tackett's testi-
mony is that Respondent, by its supervisor, Manning,
promised employees promotion or other benefits if they
refrained from supporting the Union, and if it no longer
represented the employees at the plant.
Since I did not see Tackett testify, I have no basis for
resolving the sharp conflict in the testimony of Tackett and
Manning, on the basis of Tackett's demeanor. However, it
seems to me that even if Tackett's story were accepted as
true, there is still no violation of Section 8(a)(1) in what
Manning said to him. Manning toldTackett, in effect, that
his efficiency and production were already good enough to
warrant his progression to the operator A classification. At
the ; time, the contract between the Company and the
Union had expired, so that its provisions about the length
of time for progression from trainee to operator were not in
force. Manning's remarks, as attributed to him by Tackett,
merely made the point that under the circumstances, with
no limitation of time for advancement from trainee to op-
erator A, Tackett's_ work was good enough to justify his
promotion.- -
Paragraph 5(b) alleges that Respondent, through its su-
pervisor, Plant Manager Durbin, and its agents, Albert Ko-
cis and James- Knisley, counseled and solicited employees
at the Goshen Road plant to resign their membership in
the Union.6 The facts supporting the allegation are these.
On December 6, while the strike was in progress, a striker,
Crawford, drove by the plant and noted that more cars
than usual were parked in the lot. He decided to go inside
to learn what was going on. He went into the office and
spoke with Durbin who told him that some employees had
resigned from the Union and had returned to work. He
also asked Crawford if 'he wanted to come back too. Craw-
ford said he did not know yet what he wanted to do, but
was fearful that if he returned during the strike, he might
be fined by the Union. He asked Durbin how he might
resign from the Union, but Durbin refused to answer his
query. Instead, Durbin asked Superintendent Estes to call
Kocis, an employee who had returned to work the day
before, to come to the office to see Crawford. When Kocis
arrived, Durbin and- Estes left the office. Kocis showed
Crawford the postal receipt for a letter of resignation he
had sent the Union. Another employee, Knisley, who had
returned to work that day joined them, saying that he too
had resigned from the Union by sending it a letter. Durbin
then returned to the office and asked Crawford what he
thought he would do. Crawford said he would have to
think about it, and if he decided to resign, he would be in
to work the following Monday. In fact, Crawford did not
resign, and was reinstated after the strike ended.
A somewhat similar incident occurred a few days later.
The morning of December 10, Kocis phoned Ledbetter,
who was still on strike; to ask him if he was going to return
to work. He also told him that 19 people were already
working at the plant. Ledbetter reported on this conversa-
tion to IUE Representative Nolan, who conceded that
6 No evidence was presented as to another alleged agent, Haggman, and
that portion of the complaint was dismissed by Administrative Law Judge
Summers at the hearing.
some strikers had returned to work. Ledbetter then went to
the plant where he spoke with Durbin. During their con-
versation, Durbin asked Ledbetter whether he wanted to
continue working for the Company. Ledbetter said he did
but that he would have to stick with his friends, most of
whom were still on strike. Durbin told him that some of the
strikers had already returned, and that he had nothing to
fear from the Union if he did so too. He then asked Led-
better if he would like to speak to some of those who had
returned. When Ledbetter said he would, Durbin went into
the plant area, saw Knisley nearby, and asked him if he
wanted to talk to Ledbetter. Knisley agreed and went up to
the office while Durbin left. Knisley and Ledbetter talked
for a few minutes about the situation, during which Knis-
ley said he had had enough of the IUE and wanted to start
an independent union to represent the plant employees.
Ledbetter said he had more faith in IUE, despite its faults,
than he had in an independent union. About this time,
Kocis joined them, but the conversation ended at this point
and Ledbetter left the premises. He was reinstated after the
strike, and was elected to serve on the Union's "tempo--
rary" shop committee. -
Crawford and Ledbetter, aware that some of the strikers
had already returned to work, came to the plant separately
seeking information to help him decide whether to aban-
don the strike and return to work. Durbin confirmed what
each already knew-that some of their fellow employees
had already returned. Durbin gave them- no advice on
whether to come back, did not suggest that they resign, and
neither promised them any benefit nor threatened them,
depending on their individual decisions- to return or not.
He offered them an opportunity to speak to other employ-
ees who had already returned, and it was these employees,
Kocis and Knisley, who told them how each had gone
about resigning from the Union. Durbin did not require
them to speak to the two strikers, nor did he ask them to
urge Crawford or Ledbetter to return to work or to resign.
Although Kocis and Knisley were probably on paid work
time during the 5- or 10-minute conversations they had
with Crawford and Ledbetter, this was no departure from
the Company's normal practice of permitting employees to
take short breaks during worktime for transacting personal
or union business. -
I am satisfied that neither Kocis nor Knisley urged,
counseled, or solicited Crawford or Ledbetter to resign
their membership in the Union, in telling them how they
themselves had gone about resigning, or the reasons that
had led them to that decision. In any event, although Dur-
bin was undoubtedly aware that Kocis and Knisley had
resigned upon returning to work, he did not instruct them
or suggest to them how they should respond to any inqui-
ries of Crawford and Ledbetter. I find that Kocis and
Knisley were not agents of the Company and did not, in
fact, solicit Crawford or Ledbetter, to resign from the
Union. I shall therefore recommend dismissal of paragraph
5(b) of the complaint.
Paragraph 5(c) of the complaint, as amplified by testi-
mony at the hearing, alleges that Respondent attempted to
cause two other employers to terminate or to refuse to hire
certain employees among the "15," that is, those who the
General Counsel contends are strikers, and who the Re-
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent contends resigned before the strike began.
On December 5, while the strike was still in effect, Plant
Superintendent Estes, at the request of Respondent's coun-
sel, Tucker, phoned a firm in the Fort Wayne area, Produc-
tion Piece Parts, to inquire if Osmun and Phillips were
permanently employed there.? Tucker testified that his pur-
pose in asking Estes to call Production Piece Parts was to
learn what Osmun and Phillips intended when they applied
for work there, since the Union was then claiming that
these two, as part of the "15," were now strikers and no
longer resignees, as it had earlier claimed. Estes also testi-
fied about his phone call, but since he made it on Tucker's
instruction, his version of the call's purpose can be based
only on what he understood Tucker's intention to have
been. In any event, Estes testified that he asked certain
questions of the individual he spoke to at Production Piece
Parts which Tucker had written out for him, and these sub-
stantiate the reasons Tucker gave for wanting the informa-
tion. Tucker's questions are whether the applicant told the
interviewer that he was looking for a permanent job, or
only one for the duration of the strike, and what reason he
had given for leaving the Goshen Road plant.8
Whoever spoke to Estes at Production Piece Parts told
him that Osmun had been employed there but had quit
recently, and that Phillips was still employed there.
Either in January or February, Dugan, an official of an-
other area firm, Protective Coatings, called the Goshen
Road plant to inquire about Mitchell, one of the "15" who
had applied there for employment. He spoke to Estes who
told him that Mitchell had worked as a parts washer and
shipper, that he was a good employee, and that he had
tried out for a maintenance job but had voluntarily re-
turned to his old job because he was unable to handle the
440 voltage electrical wiring that was required. According
to Dugan, Estes also told him that there were negotiations
going on about putting Mitchell back to work. Dugan then
decided not to hire Mitchell because he could not do the
440 wiring, and also because he might choose to go back to
his former employer after being trained by Protective Coat-
ings.
The General Counsel urges that Estes, in his conversa-
tions with other employers about Osmun, Phillips, and
Mitchell, was attempting to cause them to terminate and/
or refuse to hire the employees because they had engaged
in a strike against Respondent, since it is well known that
employers are averse to hiring strikers who may intend to
work for them only while the strike lasts. The Respondent,
on the other hand, argues that Estes' conversations about
these three men was not in violation of Section 8(a)(1): that
as to Osmun and Phillips it was investigating whether they
had completely severed' their relationship with Essex by
applying for permanent employment elsewhere; and that
as to Mitchell, the statement attributed to Estes that there
were negotiations to try to get some men back to work, was
7 Respondent considered Osmun to have quit before November 9, be-
cause he had been absent for 3 days without notice or excuse. Phillips was
one of those who had submitted a written resignation on November 6.
8
Tucker's questions, which he instructed Estes to ask, are in evidence as
Resp. Exh 4. Although the questions would have been suitable for inquiries
about all the "15," Estes said he called no other employers where any of the
"15" may have been employed.
true; that in fact, Estes had given him a good recommenda-
tion, but that Dugan had already decided not to employ
him because of his lack of experience with 440 wiring.
I agree with Respondent that Estes' conversations with
the other two employers were not violative of Section
8(a)(1). The status of Osmun, Phillips, and Mitchell, either
as strikers or as resignees, was a matter of dispute between
the Company and the Union, and the Company was enti-
tled to investigate whether Osmun and Phillips had any
intention at that time to return to the Company if offered
reinstatement there. Even though their intentions to apply
for "permanent" employment elsewhere may not be deter-
minative as to whether they were still strikers at the Gosh-
en Road plant, the Company was yet justified in seeking
the information since it could arguably be a factor in that
determination.
As for Estes' conversation about Mitchell's application, I
find that Estes did not give him a bad reference, so as to
jeopardize his chance for finding new employment, but was
completely truthful both as to his qualifications for a main-
tenance job and as to the possibility that Mitchell might be
offered reinstatement as part of an overall settlement with
the Union. The Board has recently held that an employer
has a right to. furnish an employment reference to another
employer upon request, unless his purpose for doing so is
to punish an employee for exercising his Section 7 rights .9 I
do not believe that Estes had such a purpose in mind when
he told Dugan that negotiations were going on about
Mitchell's possible reinstatement.
The last of the independent 8(a)(1) violations alleged, in
paragraph 5(d), relates to a conversation early in January
(after the Union had called off the strike and all but the
"15" had been reinstated) between Galucci, the Company's
vice president for industrial relations, and Gould, an Inter-
national representative of the Union, neither of whom had
participated directly in the events at the Goshen Road
plant. It is alleged that Galucci promised Gould that if the
Union would stop its organizing campaign at the
Company's Coesse plant, Galucci would see that enough of
the discharged union supporters, that is, the "15," would be
rehired or reinstated to guarantee that the Union could
continue as the bargaining representative at the Goshen
Road plant, where, it will be recalled, a decertification peti-
tion was pending.
Gould testified that he had called Galucci to arrange a
meeting with him to resolve the problems resulting from
the loss of the Union's strike at the Goshen Road plant.
The two met for lunch about January 7, when Gould said
he told Galucci that he had been given authority to settle
the Goshen Road matter, in effect bypassing Nolan. Ac-
cording to Gould, he asked Galucci whether the Union's
agreeing to a longer term contract would help resolve the
dispute, but Galucci said it wouldn't.10 He said he was will-
ing to explore any avenue to get the matter resolved, at
which, according to Gould, Galucci told him that one of
the Company attorneys, Schrodi, had met with Rutherford,
9 The Armstrong Rubber Company, Southern Division, 215 NLRB No. 122
(1974)
10 It should be noted that this meeting took place before the Union of-
fered unconditionally, on February 11, to execute the bargaining agreement
as presented in the Company's final offer of November 2
ESSEX INTERNATIONAL, INC. 129
a district coordinator of the International Union, on an
unrelated matter, and that Rutherford had then suggested
that the Union might be willing to drop the Coesse orga-
nizing campaign if the Company would settle at-Goshen
Road. Gould said he told Galucci that only an officer of
the International Union could make that decision, and that
Galucci then offered, if the Union withdrew from Coesse,
to see that enough of the "15" were recalled to give the
Union a majority, so that it could win the decertification
election.
Gould said he told Galucci that he would present the
proposition to Fitzmaurice, the International's secretary-
treasurer. He said he did so later, that the proposition was
rejected, and that he called Galucci to tell him. Gould also
testified that he asked Rutherford about his meeting with
Schrodi, and that Rutherford told him that Schrodi's re-
port was a lie, that he (Rutherford) had never made such a
proposition, and that it was Schrodi who had told him that
if the Union offered such a deal, he would take it up with
Galucci.
Rutherford did not testify at the hearing, but Galucci,
Schrodi, and Tucker did, and their stones directly conflict
with Goulds. Schrodi said he had been involved with
Rutherford in an arbitration hearing involving still another
plant of the Company, in December, and that after the
hearing, he and Rutherford met socially, when Rutherford
asked him if the two of them couldn't resolve the Goshen
Road matter to everyone's satisfaction. Schrodi said he
told Rutherford that he wasn't familiar with the issues at
that plant, and had no authority to deal about it anyway.
Schrodi said that Rutherford then asked him to call Galuc-
ci to ask him for authorization to try to settle the Goshen
Road matter. Schrodi did call Galucci, relaying
Rutherford's suggestion that some new faces might help in
working out the problems at Goshen Road. Galucci told
Schrodi that Tucker was doing a good job and he didn't
want Schrodi to get involved. Schrodi then went back to
Rutherford to tell him that Galucci wanted him to stay out,
and also to ask Rutherford whether he himself had any
authority there since Nolan and Gould had been doing the
negotiating. Schrodi said that Rutherford told him he had
authority to settle the Goshen Road matter, and that No-
lan and Gould worked for him. Then, according to Schro-
di, Rutherford asked him to go back to Galucci with the
proposition that the Union would get out of the Coesse
plant in exchange for a contract at Goshen Road.
Schrodi said that he again raised the matter with Galucci
later that day, that Galucci asked him about Rutherford's
authority, and that he told Galucci what Rutherford had
proposed. Galucci then told,him'that Coesse and Goshen
Road were separate problems, that he thought the Compa-
ny would win an election at Coesse, so that there was no
benefit to the, Company in Rutherford's proposal, and fi-
nally, that Schrodi should keep out of any dealings over the
Goshen Road plant. Later that week, Schrodi called Ruth-
erford to tell him that Galucci would not swap Coesse for
the other plant.
Galucci's testimony corroborates that of Schrodi's about
the latter's dealings with Rutherford, and I see no need to
summarize 'it again. As to Galucci's meeting with Gould
about January 7, Galucci said that Gould had called him a
number of times before that, and that in one of their phone
conversations, he had asked Gould whether he was author-
ized to speak for the Union on the Goshen Road matter,
that Gould said he wasn't, but would like to exchange
some ideas with him off the record. Eventually, Galucci
agreed to meet with Gould, and it was then, according to
Galucci, that Gould again admitted he had no authority to
negotiate over the Goshen Road plant but that Nolan had
fouled things up there and at Coesse, and he, Gould, want-
ed to impress his boss, that if the two of them could get a
handle on the Goshen Road dispute; it would be a good
thing for him. It was then, according to Galucci, that
Gould put to him the proposition that the Union agree to a
quick election at Coesse, which it was bound to lose, in
exchange for which the Company would withdraw the de-
certification petition at Goshen Road and sign a contract
for that plant. Galucci said he told him the two plants were
separate, that he would not trade one for the other, and
that he had already rejected a better proposal,
Rutherford's, for a union pullout from Coesse. Galucci
also told him that the Company could do nothing about
the decertification petition, and it was likely that there
would be an election. The matter of the "15" came up, and
Galucci said he told Gould he would consider the matter
again in order to decide whether any of them had not real-
ly quit or did not know what they were doing. Gould then
asked what guarantee the Union had that enough of the
"15" would be reinstated so that it could win the election,
to which Galucci responded that there was no guarantee.
Gould then said that he would talk to Fitzmaurice , his su-
perior at the International Union, and the meeting then
ended.
There is no doubt that the Union's position at Goshen
Road had been seriously eroded by the failure of its strike,
the Company's refusal to reinstate any of the "15," and the
filing of a decertification petition. There 'was a good possi-
bility, in view of these facts, that it might lose its bargain
-ing rights at the plant altogether.In these circumstances, i
is understandable that the Union would want to settle its
Goshen Road problem quickly, salvaging what it could
from its defeat. I see no other explanation for the fact that
Rutherford and Gould, neither of whom had been directly
concerned at either Goshen Road or Coesse, should seek to
involve himself in what was still Nolan's responsibilities.
Whether Rutherford and Gould were each acting on his
own, or were under secret instructions from some higher
International official, cannot be determined, but it seems
unlikely that either would take it on himself to approach
Company officials other than Tucker, without some unoffi-
cial union recognition that Nolan was largely ineffective in
his dealings with Tucker.
I therefore find, based on the undoubted fact that the
Union had more to lose from a continuation of the existing
situation than the Company, in December and January,
that Rutherford and Gould each believed, with some rea-
son, that he had authority to try to reach a settlement with
the Company, bypassing both Tucker and Nolan. The
Company, on the other hand, apparently believed, as later
events bore out, that the Union's organizing campaign at
Coesse would not succeed, and would therefore have less
reason to try to trade off a union pull-out at Coesse for a
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
settlement at Goshen Road. -
For all the above reasons I find that Schrodi's and
Galucci's versions of their respective dealings with Ruther-
ford and Gould are more believable than Gould's, and that
the offer to trade off Coesse for retention of bargaining
rights at Goshen Road was initiated by Rutherford and
Gould. I therefore find that the General Counsel has not
proven the allegations of paragraph 5(d) of the complaint.
Furthermore, even assuming that Gould's version of his
conversation with Galucci about January 7, is credible, I
would still find no violation of Section 8(a)(1) here, since it
was an off-the-record attempt, to settle the Goshen Road
dispute, and there is no evidence that Galucci's offer, even
assuming he initiated it, had the effect of interfering with
the self-organizational rights of Company employees."
The 8(a)(3) Allegations
In the section of this Decision relating the chronology of
events between November 5 and December 12, I set out
what I regard as the pertinent facts about the 15 employees
whom Respondent refused to reinstate on the ground that
they had already resigned their employment before the
strike began. To summarize briefly, IUE Representative
Nolan had persuaded the bargaining committee and the
membership to agree on a mass resignation of the plant
employees. It was Nolan's testimony that he regarded this
merely as a means to induce the Company to come up with
a better contract offer, and that he had always intended to
move into a traditional strike if the tactic failed, but he
himself admitted that his scheme depended for its success
on getting the Company and the employees to accept the
option of a mass resignation as a realistic possibility.
Whether the Company negotiators or any of the employees
(other than the four bargaining committeemen in whom
Nolan had confided) really believed that Nolan intended
to put the plant out of business is impossible to determine,
and is probably irrelevant to the issues here. There was
though, some rational basis for Nolan's expressed hope
that "mass resignation" would force the Company to im-
prove its final contract offer, since most of the employees
had skills which were then in short supply in the Fort
Wayne area, so that presumably they could find other em-
ployment and thus force the plant to close down.
In fact, however, many of the employees ignored or re-
pudiated Nolan's tactic, despite their unanimous vote on
November 4, to resign. On November 5, they returned to
work and continued to work until November 9, when the
Union's call for a strike became effective and was honored.
Each of the "15" who did not return to work on November
5 or thereafter, individually took action which was de-
signed to show the Company that he was unequivocally
terminating his employment with it.
Thus, Weigold, Hamilton, Keener, Knecht, Phillips, and
11 Cannon Electric Company, 151 NLRB 1465 (1965), cited by the General
Counsel for the proposition that Galucci's offer would have such an effect,
is not controlling here , since the Board in the Cannon case , at page 1468,
stressed the reasonableness of its inference that the Employer 's instructions
to its supervisors would be divulged to employees Here, on the other hand,
neither Galucci nor Gould would be likely to reveal their settlement efforts
to the employees
France came to the plant on November 6, and submitted
signed- resignation slips; Reid accompanied them to the
plant for the same purpose, but left before the forms could
be prepared; Mitchell was one of the four bargaining com-
mitteemen (and Reid was another) who acquiesced in
Nolan's statement to the Company on November 4 that
they were resigning immediately; Osmun and Sexton were
absent for 3 days without explanation or excuse, in viola-
tion of the company rule that such conduct constituted a
voluntary quit; Brown, Fulecki, Knight, and Lindemann
each told Estes that he was quitting; and Maggard told
Estes that he was going to work for another employer the
following week. None of them advised the Company that
his decision to terminate his employment was conditional
or revocable on the settlement of the contract dispute, and
none said that he was then on strike.
The General Counsel argues that when the membership
voted to reject Respondent's final offer on November 3, a
labor dispute concerning terms and conditions of employ-
ment, as defined in Section 2(9) of the Act, existed; that the
"15" were therefore strikers as of November 5, and that
they never abandoned their strike, despite their "resigna-
tions." He further argues that Respondent -knew that the
alleged "quitting", was only a tactical maneuver, and that
the "15," among others, were on strike as of November 5.
It follows, according to the General Counsel, that as strik-
ers, the "15" were entitled to reinstatement after December
12, when the Union made an unconditional offer to return
them to work, and that as Respondent has offered no legit-
imate or substantial business justification for refusing to
reinstate them, it must be presumed to have done so be-
cause of its opposition to the Union.
There is no doubt that a labor dispute existed as of No-
vember 5, with the expiration of the old contract. It does
not follow, however, as the General Counsel assumes, that
a labor dispute is the equivalent of a work stoppage or
strike. If, for example, all the plant employees had,returned
to work on November 5, while negotiations continued,
there would have been a labor dispute but no stoppage. On
the other hand, if some employees had returned to work on
November 5, while others decided to stay out, withholding
their services until the Union's demands were met, those
employees would then be engaged in a strike. In the instant
case, however, the stiuation as of November 5 was neither
of these. None of the employees who stayed away from
work beginning November 5, claimed that they were tem-
porarily withholding their services, and would return only
when their demands were met; on the contrary, they
claimed to have permanently severed their employment re-
lationship with the Company.
The few Board precedents I have found concerning this
issue seem to draw a distinction between resignations
caused by employee dissatisfaction over wages and work-
ing conditions which does not result in a strike, and resig-
nations occurring during a strike. In the former situation,
the resignations have been found to be a permanent sever-
ance of the employment relationship.'2 In the latter situa-
12 Nutrena Mills, Division of Cargill, Incorporated, 172 NLRB 183, 188
(1968) "The fact that they [three employees who resigned together] acted
concertedly over dissatisfaction with their wages or working conditions does
not transform their action into a work stoppage or strike, since these con-
ESSEX INTERNATIONAL, INC. 131
tion, the Board has held that an- employee who resigns dur-
ing a strike may not in fact intend to permanently. sever his
relationship with the employer where he is on strike, but
only to convince other employers that he is not merely
seeking interim employment with them.13 The eligibility of
strikers to vote in a representation election at the struck
plant, even after they have accepted- employment else-
where, iss based on other considerations, such as who must
bear the burden of proof that a striker has abandoned his
interest in the struck job. Such cases, based on the princi-
ples of Pacific Tile and Porcelain Company, 137` NLRB 1358
(1962), are not relevant to the question here, of whether the
"15" were strikers at all.
In the instant case, the. 15 employees who resigned or
otherwise quit their employment did not claim to be strik-
ing, and had all effectively terminated their employment
with the Company before the Union called its strike. Some
of them later participated in the Union's strike activities
and collected strike benefits, but I do not see how that
changes their status vis-a-vis the Company. To sum up, I
find that the Company was justified in regarding the ` 15"
as voluntary quits before the inception of the strike, and
that it had no obligation to reinstate them after the Union
ended its strike on December 12. Some of the "15" un-
doubtedly did so to play out Nolan's game, but I consider
that to be immaterial.14 Nolan and the bargaining commit-
tee gambled on gaining their objective by a threat of mass
resignation to close the Goshen Road plant down perma-
nently, and when the threat turned out to be an empty one,
their later decision to go out on strike should not be given
a retroactive effect.
The General Counsel also makes an alternative argu-
ment, that even assuming, arguendo, that the "15" quit their
employment, and were not strikers, they would still be enti-
tled to consideration for reemployment. I find no merit in
that argument. On December 12, the Union requested rein-
statement of all 44 employees as strikers, who would thus
be entitled to all their previous rights and privileges, in-
template'a temporary withholding of services but not a permanent sever-
ance of the employment relationship " -William Eaborn, -d/b/a Eaborn
Trucking Service, 156 NLRB 1370 (1966). See also, Greyhound Food Manage-
ment, Inc., and Post Houses, Inc., 198 NLRB 1146, fn. 23 of the TXD (1972)
Cf. Crescent Wharf and Warehouse Company and Its Successor, West Coast
Terminals Co., Inc., 104 NLRB 860 (1953), where the Board found that six
employees had written a letter to their employer, which the Board construed
as a.present resignation rather than as a threat to resign in the future, and
held that the concerted act of abandoning their employment was unprotect-
ed. It is true that the Board relied, in part, for its conclusion that their
termination was unprotected on the absence of a preexisting labor dispute.
Why a concerted voluntary resignation should be protected if it occurs
during a dispute over wages and working conditions, and is unprotected at
other times, is not explained.
i3 S & M Manufacturing Company, 165 NLRB 663 (1967). See also, Missis-
sippi Steel Corporation, 169 NLRB 647, 663"(1968), where some employees
resigned during a strike in order to obtain their pension and profit-sharing
benefits The Board adopted, without discussion, the Trial Examiner's con-
clusion that the resignations were not intended as an abandonment of the
strike, but only because of their economic hardship. Although their rein-
statement was ordered, backpay was tolled as of the date of their resigna-
tion.
i4 In any event, I am satisfied that Brown, Fulecki, Knight, Lindemann,
and Maggard in fact quit to take other jobs immediately, and intended to
sever permanently their employment with the Company, regardless of what
the Union might subsequently decide about striking
cluding -seniority. I have noted that the 29 employees
whom I regard as strikers were reinstated pursuant to the
Union's offer; the "15" whom I consider as having volun-
tarily quit before the strike were not entitled to reinstate-
ment on those terms. Nor is there any evidence that any of
them individually, applied thereafter for employment as
new employees, and were rejected because of their previous
adherence to the Union.
I shall therefore recommend that the 8(a)(3) .allegations
of the complaint be dismissed.
- The 8(a)(5) Allegations
Paragraph 9 of the complaint alleges that from Novem-
ber 1, 1973 (the day after the expiration of the old con-
tract), Respondent has refused to bargain collectively with
the Union, in that on or about February 19, 1974, it with-
drew -recognition from the Union and has thereafter re-
fused to bargain with it, and notwithstanding that Respon-
dent had previously engaged in conduct which the General
Counsel has alleged to be in violation of Section 8(a)(1)
and (3).
It will be recalled that February 19 is the date of the
Company's letter to the Union, rejecting its offer to accept
and sign the Company's final contract proposal, which it
had submitted to the Union on November 20. The letter of
February 19 declined the Union's offer to agree uncondi-
tionally to the Company's terms, on the grounds that it
would be a violation of the Act for it now, to sign a bargain-
ing agreement in view of the pending decertification peti-
tion, as well as the Company's good-faith doubt of the
Union's majority status, as substantiated by the employee
poll taken that day, which showed that of the 30 employees
who voted, 19 had indicated that they no longer wished to
be represented by the Union. The Company also stated
that the best and quickest way to resolve the issues between
it and the Union would have been for the Board to hold an
immediate election on the decertification petition, but that
the Union had refused to agree to that procedure.
The Company contends in its brief that it did not in fact
withdraw recognition from the Union as such, by its letter
of February 19, or in any other way. It points out that
before and after February 19, it permitted the Union cer-
tain privileges, such as the use of its bulletin board and the
use of its telephone to the Union's shop chairman on union
business. The substance of paragraph 9 of the complaint is,
however, that the Company refused,to-bargain collectively
with the Union by denying its majority status, and the fact
that it continued to allow a union representative some mi-
nor privileges in the plant does not establish that it contin-
ued to recognize the Union as the exclusive bargaining rep-
resentative of its employees. Its letter of February 19
shows, in fact, that it refused to negotiate or deal further
with the Union unless it won an election to be held on the
decertification petition.
The Board and courts have consistently held that a con-
tracting union is presumed to represent a majority of the
employees in the bargaining unit during the life of a collec-
tive-bargaining agreement. While this presumption contin-
ues after expiration of the agreement, it may be overcome
by a showing that the Union no longer enjoys majority
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
support, or that the employer entertains a good-faith doubt
concerning its continued majority.15
Even though the Respondent has not established in this
case that the Union no longer enjoyed majority support, I
find that it had reasonable grounds for entertaining a
good-faith doubt of such majority. I believe that the princi-
ple recently enunciated by a majority of the Board in Te-
lautograph Corporation, 199 NLRB 892 (1972), requires a
finding here that Respondent has not violated Section
8(a)(5) by its withdrawal of recognition from the Union. In
that case, the Administrative Law Judge found that pur-
suant to a timely decertification petition, the Regional Di-
rector had held a hearing and issued a Decision and Direc-
tion of Election (a) overruling the Union's objection to the
election on the asserted ground that its current contract
with the Employer barred the petition; (b) holding that the
petition was timely filed; and (c) finding that a question
concerning the representation of the employees in the bar-
gaining unit existed. He also found that the Respondent
there had not refused to bargain with the Union while the
Regional Director's determination to hold an election was
still pending, although the Regional Director later blocked
the holding of the election because the Union had in the
meantime filed an 8(a)(5) charge. There was no evidence,
nor even a claim, that the Respondent in that case had
engaged in any unfair labor practices or antiunion activity
which might taint the atmosphere for such election. In
those special circumstances, the Administrative Law Judge
held that the Union's representative status could and
should be determined by means of the election ordered by
the Regional Director.
A majority of the Board in Telautograph went beyond
that rationale, holding, as I read the case, that the decertifi-
cation petition itself, supported by an adequate showing of
interest, raised a question concerning representation. The
Board said there:
In Shea Chemical Corporation, 121 NLRB 1027 [1958],
the Board established the rule that when a real ques-
tion concerning representation has been raised by the
filing of a petition by a rival union that "an employer
may not go so far as to bargain collectively with in-
cumbent (or any other) union until the question con-
cerning representation has been settled by the Board."
The same rule should be applied where a real question
concerning representation has been raised by the time-
ly filing of a decertification petition.
We wish to clarify this matter, since a clear state-
ment of that principle may obviate the necessity for
lengthy delays in the processing of properly supported
decertification petitions under like circumstances in
the future. Such processing need not be delayed by an
8(a)(5) charge, since such charge could be promptly
15 Eastern Washington Distributing Company, Inc., 216 NLRB No. 186
(1975), and Terrell Machine Company, 173 NLRB 1480 (1969), enfd 427
F 2d 1088 (C.A 4, 1970)
dismissed as nonmeritorious unless, of course, the
charge contains allegations that the Respondent has
committed some act (other than its mere refusal to
bargain) which may be a proper basis for finding a
violation of our Act.
There are some obvious differences between the facts in
Telautograph and those in the instant case. In the former,
the Regional Director had held a hearing on the decertifi-
cation petition, had found that an election would be prop-
er, but had blocked it because of the issuance of his unfair
labor practice complaint (which alleged only an improper
withdrawal of recognition) without however setting aside
the petition or his Decision and Direction of Election. In
the instant case, the decertification petition had been dis-
missed before a hearing thereon was held, while the com-
plaint contained allegations of unfair labor practices in ad-
dition to the Employer's refusal to bargain.
I do not, however, consider these differences to be mate-
rial. Here, in view of my findings that the alleged violations
of Sections 8(a)(1) and (3) were not sustained by the Gen-
eral Counsel, there is no context of unfair labor practices
which might have tainted the atmosphere of an election on
the decertification petition.16 It was undoubtedly the alle-
gations of violations of those sections of the Act which
prompted the Regional Director to dismiss the decertifica-
tion petition, but it would be anomalous, in my view, now
to hold that Respondent violated Section 8(a)(5) merely
because the Regional Director alleged violations of other
Sections which he has been unable to prove.
I therefore find that under the special circumstances of
this case, where the allegations of violations of Section
8(a)(1) and (3) have not been sustained, after a hearing
thereon, that Respondent was justified in claiming that it
had a reasonably based good-faith doubt of the Union's
majority, based on the timely filing of the decertification
petition.
CONCLUSIONS OF LAW
1. Essex International, Inc., is an employer engaged in
commerce and in activities affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
2. International Union of Electrical, Radio and Ma-
chine Workers, AFL-CIO-CLC, is a labor organization
within the meaning of Section 2(5) of the Act.
3. The Respondent has not engaged in any unfair labor
practices alleged in the complaint.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
16 I note that in his brief to me, the General Counsel sought to amend the
complaint by alleging, for the first time, that the poll of employees, initiated
by the Company on February 19, was a violation of Sec. 8(a)(I). Since the
matter was not clearly litigated at the hearing, I consider it inappropriate for
me to decide now whether the polling in fact violated Board standards, or
created such a context of unfair labor practices as to require a finding of a
Sec 8(a)(5) violation now In any event, a motion to amend the complaint,
first made in a brief and without adequate notice to the Respondent that it
might be called upon to defend against such a charge, is clearly untimely.
ESSEX INTERNATIONAL, INC. 133
ORDER17
It is hereby recommended that the complaint be dis-
missed in its entirety.
D 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