Flasco Manufacturing Co.

National Labor Relations Board - Board Decisions

Jan 5, 1967

162 N.L.R.B. 611 (N.L.R.B. 1967)

FLASCO MFG. CO. 611
Fiasco Manufacturing Co. and District Lodge 162 , International
Association of Machinists and Aerospace Workers, AFL-CIO.
Case 18-CA-21792. January 5, 1967
DECISION AND ORDER
On June 13, 1966, Trial Examiner Robert E. Mullin issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed exceptions to the Decision
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
[The Board adopted the Trial. Examiner 's Recommended Order.]
' We correct the date of employee Mikalauskas ' reemployment to read, "January 24,
1966," instead of January 24 , 1965, as appears in the Trial Examiner 's Decision.
Because it does not appear to him that arbitration was available to the Union under the
governing contract to resolve the Mikalauskas -Larson discharge matter , Member Brown
has considered it appropriate to pass upon the legality of the discharges at this time in
this unfair labor practice proceeding . See his separate opinions in Cloverleaf Division of
Adams Dairy Co., 147 NLRB 1410 , and Thor Power Tool Company, 148 NLRB 1379.
TRIAL EXAMINER'S DECISION
Upon - a charge filed by the Union, the General Counsel of the National Labor
Relations Board , by the Regional Director for Region 18 (Minneapolis , Minne-
sota ), issued his complaint and notice of hearing dated March 15, 1966 , against
Flasco Manufacturing Co. (herein called the Respondent , or Employer ), alleging
that the latter had engaged , and is engaging , in unfair labor practices within the
meaning of Section 8(a)(3) and ( 1) of the National Labor Relations Act, herein
called the Act. The complaint, the charge,' and notice of hearing were duly served
upon the parties. In its answer , as amended at the hearing , the Respondent conceded
certain facts as to its business operations , but it denied all allegations that it had
committed any unfair labor practices
Pursuant to notice , a hearing was held on April 5, 1966 , at Sioux City, Iowa,
before Trial Examiner Robert E. Mullin . All parties appeared at the hearing, with
counsel, and were given full opportunity to be heard, to examine and cross-
examine witnesses , and to introduce relevant and competent evidence . Subsequent
to the close of the hearing, briefs on behalf of the Respondent and the General
' The charge was filed on January 19, 1966.
162 NLRB No. 56.
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel were submitted to me. A motion to dismiss, upon which ruling was
reserved at the conclusion of the hearing, is disposed of in accordance with the
findings-and conclusions that follow.
Upon the entire record in the case, the briefs of the parties, and from my observa-
tion of the demeanor of the witnesses as they testified, I make the following:
FINDINGS OF FACT -
I. THE BUSINESS OF THE RESPONDENT
The Respondent, an Iowa corporation with its principal office and plant at Sioux
City, Iowa, is engaged in the manufacture of truck bodies and trailers. During the
12 months preceding the filing of the charge, the Respondent, in the course and
conduct of its business operations, rendered sales and services, the gross value of
which exceeded $50,000. During this same period of time the Respondent's sales
to points outside the State of Iowa exceeded $50,000. Upon the foregoing facts, the
Respondent concedes, and I find, that Fiasco Manufacturing Co., is engaged in
commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
District Lodge 162, International Association of Machinists and Aerospace Work-
ers, AFL-CIO (herein called Union or Machinists), is a labor organization within
the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR, PRACTICES
A. Introduction
On February 12, 1965, after a Board-conducted representation election, the Union
was certified as the exclusive bargaining agent of a unit consisting of the production
and maintenance employees at the Respondent's plant in Sioux City, Iowa. There
followed a series of collective-bargaining conferences at which the Employer was.
represented by James Reynolds, executive vice president of the Midwest Employers'
Council, and the Union was represented by John O'Connor, its business representa-
tive. On June 28, 1965, and at the conclusion of these negotiations, the parties
executed a collective-bargaining agreement.
On December 30, 1965, the Respondent terminated the employment of Simas
Mikalauskas and Randall Larson. The General Counsel contends that these employ-
ees were in the bargaining unit and were terminated because the Union insisted that
they be paid the minimum wage provided in the collective-bargaining agreement.
This allegation is denied by the Respondent, according to whom the two employees,
in question were, in fact, temporary spot laborers, and thus not within the bargain-
ing unit.
B. The facts
The collective-bargaining agreement between the parties provided a minimum
starting pay rate of $1.50 an hour, a rate of $1.55 after the completion of a proba-
tionary period,2 and a rate of $1.60 an hour after an employee completed 6 months
of service. The agreement also provided 3 that all employees of record on the date
the agreement became effective would receive 5 cents an hour increase in pay.
Immediately after the execution of the contract, the Respondent put into effect this
last mentioned provision and granted a 5-cent an hour raise to all the employees.
then on its payroll.
Simas Mikalauskas was hired by the Respondent in March 1965, at the rate of
$1.30 an hour. On June 28, 1965, the date the collective-bargaining agreement went
into effect, he received the 5-cent an hour raise granted to all employees. Thereafter,
and until his discharge, he received $1.35 an hour.
Mikalauskas was a Lithuanian immigrant who came to this country in 1950. He
could neither speak nor write English and testified through an interpreter. From
the time that he was hired, Mikalauskas was a laborer in the material shed where
he worked with Joseph Feeley. Feeley, a yardman in the Respondent's employ for
some time, did not speak Lithuanian. He testified, however, that notwithstanding
the language barrier, he was able somehow to communicate most of his orders and
2 Article VI established a 45-day probationary period for new employees.
3 In article XXIV, section 3.
FLASCO MFG. CO. 613
requests to Mikalauskas. Feeley characterized Mikalauskas as a very satisfactory
-employee who was more dependable than most of the other coworkers on whom he
had to rely for assistance.
Randall Larson was an 18-year old high school student who was first employed
by the Respondent in September 1965. He was hired in conjunction with an indus-
trial training program conducted by Central High School in Sioux City whereby
students in their senior year were provided an opportunity to secure on-the-job
training at plants located in the area. Larson worked 15 hours a week and was
paid at the rate of $1.25 an hour.
In the fall of 1965 the Union pressed for the settlement of several grievances
having to do with access to the plant and the wage rate being paid to certain
employees. As the result of an exchange of letters which began in October and
continued until early December, a meeting between representatives of the Union
and the Employer was held on December 16, 1965. At this meeting the Respondent
was represented by James Reynolds, its labor relations advisor, Leroy Taylor, its
plant manager or superintendent, and George Wiegand, the assistant superintendent.
The Union was represented by Business Agent O'Connor and a committee of three
employees.
After the disposition of the grievances arising out of the Union's contention that
its representatives had been denied access to the plant, O'Connor brought up the
subject of the wage rate being paid Mikalauskas and Larson. The union position,
as set forth by O'Connor, was that both of these employees were members of the
bargaining unit and, therefore, entitled to the minimum pay rate of $1.50 an hour.
The Respondent refused to accede to this construction of the contract and, through
Reynolds, contended that Mikalauskas and Larson were only "temporary spot
employees," a category exempted from the bargaining unit, as defined in the
collective-bargaining agreement .4 •
According to the credible and uncontradicted testimony of O'Connor, Reynolds
stated at the meeting that if the Union insisted that the two individuals receive the
$1.50 rate, the Employer would discharge them. The union' representative then told
Reynolds that if the Company took this action the Union would file a grievance
and, if necessary, take the matter to arbitration., Reynolds' response was that the
Employer was free to pay Mikalauskas and Larson any rate it desired and that it
would refuse to arbitrate the matter. The meeting closed, when the union repre-
sentatives stated that they would take the Employer's stand under consideration and
inform Reynolds by letter as to their final position.
On December 21, O'Connor wrote a letter to Reynolds in.which he stated, inter
alia, that the Union would insist that Mikalauskas and •Larson receive the rates
established by the contract. He also stated that if the Company terminated these
employees as the result of this demand, the Union would exercise its right to file
a grievance and request arbitration of the matter. In a letter to O'Connor, dated
December 22, Reynolds replied as follows:
Regarding your letter of December 21st, please understand that in accordance
with our recent . . . grievance meeting, [on December 16] you are on record
as saying, "Go ahead and fire the school boy, we don't care." So this closes
that aspect.
As far as the older man goes, we repeat that our position is that he is tem-
porary spot labor and does not come under the contract wage rates.
Of course, if we fire this man, you have the right to grieve but if you will
read the contract, nothing prohibits our terminating this man and the issue is
not arbitrable.
In a letter to Reynolds dated December 28, O'Connor took issue with Reynolds on
the comment about Larson which Reynolds had attributed to him. O'Connor stated
that what he had said was that if Larson had not, finished his probationary period
the Company could dismiss him, but that, in any event, Larson was entitled to the
wage rate which the contract provided. In the letter O'Connor also reiterated the
Union's contention that Mikalauskas was a regular- employee, having worked far
past the time of probation and that he was entitled to the wage rate provided in
the contract for bargaining unit employees. O'Connor concluded with the statement
that in the event Mikalauskas was terminated without good cause the matter would
be subject to arbitration as well as the question of the wage rates being paid.
'Article XV "Non-Bargaining Unit Employees" provided : "Non-bargaining unit em-
ployees such as temporary spot labor shall be allowed to perform any work normally
performed by employees in the bargaining unit "
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In a letter dated December 29, Reynolds replied to O'Connor as follows:
Regarding your letter of December 28, 1965, we want you to know that we
no longer have any use for these two men and their employment will be
terminated.
As far as arbitration goes, no dice . The contract specifically gives manage-
ment the right to discharge and nothing is said about "good cause."
So you have now done your job. You have put two men out of work. I
think this is unfortunate.
The terminations to which Reynolds referred in the above letter occurred on
December 30, 1965.
Joseph Feeley testified that on December 29, Plant Manager Taylor and Robert
Lansworth, a foreman , came to where he and Mikalauskas were working . According
to Feeley, Taylor asked him to inform Mikalauskas that the following day (Decem-
ber 30 ) would be his last day at work and that he would then be laid off . Feeley
testified that he asked Taylor "what is this , some damn union doings or something
like that going on?" and that the plant officials thereupon replied that it was "partly"
due to that problem . According to Feeley, he then asked why Mikalauskas was not
left alone and Taylor replied that "maybe they would get this thing straightened
out later on, as they got things cooled off a little bit he could probably get back
to work ." 5 Feeley's testimony was credible . It was also uncontradicted and
undenied , for neither Taylor nor Lansworth appeared as witnesses at the hearing.
Feeley testified that he relayed the message , as directed , but that to do so he had
to enlist the assistance of Anthony Strozdas , a coworker who was fluent in Lith-
uanian and could converse with Mikalauskas in his native tongue . Feeley, with
Strozdas as his interpreter , thereupon relayed to Mikalauskas the message that the
plant officials had asked that he convey to that employee . According to Mikalauskas,
during the ensuing conversation , Feeley explained to him that he was being termi-
nated because "The Union wanted to raise me and the Company refused." 6
Larson was notified on December 30 that he was being terminated . According to
the employee , Plant Manager Taylor came to where he was at work and told him
that "the union was raising some sort of a fuss so I was being laid off . "
Larson 's testimony was credible . It was also uncontradicted and undenied, for
neither Taylor nor anyone else for the Respondent testified as to the circumstances
surrounding his termination.
On January 6, 1966 , the Company had an advertisement in the Sioux City
Journal, a daily newspaper of general circulation , stating that it needed workers
and laborers immediately.
On January 19, the Union filed the charge on which the complaint in this case
was issued.
On January 21, the Respondent called in both Mikalauskas and Larson and had
each of them sign a prepared statement -which read as follows:
I, ________________________, do hereby state and affirm that the following
statement is true and accurate to the best of my knowledge . My employment
with Fiasco Manufacturing Company was terminated on December 30, 1965.
As far as I am concerned , I was not terminated for any reason other than
the company felt it bould no longer, economically , use my services . They had
no more work for me.
I was not terminated for any reasons of concerted activities in behalf of Dis-
trict Lodge 163, International Association of Machinists , AFL-CIO.
The statement which Mikalauskas signed was witnessed by both Wiegand and Lans-
worth . That which Larson signed was witnessed solely by Wiegand . Both statements
also bore the signature of a notary before whom they were purportedly subscribed
and sworn to on the day in question . Reynolds testified that it was he who had
prepared the draft of these statements.
Feeley testified that on or about January 20, Plant Manager Taylor asked that he
get word to Mikalauskas that he was to come back to work, but that first he would
e The quotations in this paragraph are from Feeley 's testimony.
6 The quotation is from Mikalauskas ' testimony . His testimony , though credible, was
very disjointed and difficult to understand . Whereas in his testimony the quoted passage
is attributed to Taylor driectly, from the testimony of Feeley and Strozdas it is apparent
that the statement was made to him by Strozdas and Feeley during the conversation
which they had with him on the subject.
FLASCO MFG. CO. 615
have to report to the plant office. According to Feeley, either Taylor or Wiegand,
he could not recall which, also told him that before Mikalauskas could return to
duty "he would have to sign a paper." 7
Mikalauskas testified that when he reported to the plant office on January 21,
Weigand and Lansworth were there and that they had him sign "some papers." 8
He further testified that although Wiegand said- several things to him at the time
he did not understand him, that there was no interpreter present, and that he signed
the statement without being able to read it, the statement, of course, being in Eng-
lish. Although the statement purports to have been taken under oath and bears a
notarial seal, Mikalauskas testified that at the time he signed the document presented
to him by Wiegand he did not raise his right hand or swear to the statement which
he executed.
Mikalauskas was not put to work the same day that he signed the document in
question, but he was reemployed on January 24, 1965.
Larson's testimony with respect to the circumstances under which he signed the
foregoing typed statement was similar to that of Mikalauskas. According to Larson,
he was instructed to report to Wiegand's office "to sign a paper." The employee
testified that when he reached the superintendent's office, Wiegand showed him the
statement which was then ready for his signature. According to Larson, Wiegand
told him that he was being laid off for reasons of economy, that the statement
explained the ground for this action, and "then he said something to the effect that
when school was out to come back and maybe I could get back on again working
for him, and then he had me sign this." 9
Larson testified that he thereupon signed the document. Larson's statement also
purports to be an affidavit taken under oath and bearing a notarial seal. The wit-
ness, however, testified that he did not raise his hand, or swear to it, and that he
merely signed the instrument which Wiegand handed to him.
Sometime later, Larson received a letter offering him reemployment.'() Larson
testified that he ignored the letter when it arrived because he was no longer inter-
ested in working for the Respondent.
At the hearing Reynolds was the only witness called by the Respondent. He testi-
fied with respect to the meeting of December 16 and the grievances which were
discussed at that time. In many respects there was no conflict between his testimony
and that of the witnesses for the General Counsel. In connection with the Respond-
ent's contention as to the meaning of the term "temporary spot labor" which
appears in the collective-bargaining agreement of the parties, Reynolds testified that
such laborers were "people who have no regular promise of a job, do not work a
full week, are intermittent .. .. This definition, however, could not fit Mikalaus-
kas who had worked at the plant regularly from the time he was hired in March
1965 until his termination in December. Reynolds conceded as much in his testi-
mony when he described Mikalauskas as:"a man who was hired on a very untem-
porary basis." He went on to testify, however, that because of that fact Mikalaus-
kas' situation was discussed at one of the last bargaining sessions in June.
Apart from Reynold's testimony that Mikalauskas' name had been mentioned at
one of the bargaining sessions , there is no evidence that the parties agreed that he
should be excluded from the unit. Moreover, Business Agent O'Connor testified that
there was no discussion of Mikalauskas at any time during the contract negotiations.
He also testified that insofar as he had any understanding from the negotiations of
the term "temporary spot labor" it referred only to the labor that would be needed
for a day, or a day and a half, and at infrequent intervals, to unload a car of
lumber which the regular employees were not able to handle." O'Connor' s testi-
mony to this effect was corroborated in some measure by that of Raymond Rusch-
mann . The latter was the union steward. At the time the collective -bargaining agree-
ment went into effect he met with Wiegand, the assistant superintendent, to prepare
a list of those eligible for the 5-cent an hour raise that all bargaining unit employ-
ees were to receive. According to Ruschmann, he insisted that since Mikalauskas
had completed his 45-day probationary period, as required by the contract, the
7 The quotation is from Feeley 's credible, undenfed testimony.
8 The quotation-is from Mikalauskas' testimony.
0 The quotations in this paragraph are from Larson's testimony, all of which was
undenfed.
10 The record does not reflect the date that Larson received this letter.
11 Reynolds, who testified after O'Connor had been on the stand, conceded that he
agreed , in substance, with O'Connor's definition of "temporary spot labor."
'616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union felt that this employee should be considered eligible for the same pay rate
as the rest of the employees in the bargaining unit . Ruschmann testified that Wie-
gand refused and declared that if the Union persisted in this demand the Company
would terminate Mikalauskas rather than pay him the same rate as the other
-employees were getting. According to Ruschmann, as a result of the unyielding posi-
tion which Wiegand maintained in their discussion , he decided to withdraw the
request on behalf of Mikalauskas. He testified that in closing the discussion with
the plant manager he told Wiegand that because the Union did not want Mikalaus-
kas to be out of a job he "would not push [the subject] . at that time." 12
On the basis of the foregoing findings, it is my conclusion that the subject of
Mikalauskas' status was never specifically discussed during the course of the collective-
bargaining negotiations and that the parties never agreed that he would be
excluded from the bargaining unit on the ground that he was only "temporary spot
labor." Moreover, it is my conclusion that not until after the contract was executed
,did the Respondent advance the position that Mikalauskas was not to be accorded
the benefits of the collective-bargaining agreement. Ruschmann withdrew the Union's
objection after discussing the matter with Wiegand for fear that an adamant stand
might result in the employee's immediate discharge. In the fall of 1965, however,
the Union chose to renew its objection to the rate that Mikalauskas was getting
and, to object, additionally at that time, that Larson, another employee, was also
'being excluded from the benefits of the collective-bargaining agreement. Larson, a
vocational education program trainee, was working 15 hours a week, every week,
and on a regular basis. In effect, he was in the category of a "regular part-time
employee." On the basis of Reynold's own definition of "temporary spot labor" it
would not appear that Larson could be so categorized. It is even more' obvious that
such a classification could not be applied to Mikalauskas who had worked regularly
-at the Respondent's plant for almost 10 months.
In any event, and regardless of the merits of the Union's position as to whether
these employees were to be accorded the benefits the contract provided for mem-
bers of the bargaining unit, it was plainly protected concerted activity for the
Union to raise the issue as to the status of Mikalauskas and Larson under the
agreement. It was likewise a subject which the Employer was compelled to consider
in grievance negotiations with the Union. In the event such bargaining did not
resolve the issue, either party could seek to vindicate its position through arbitra-
tion. In its letter to Reynolds, dated December 28, the Union announced that if the
Company did not adjust the wage rates of these two employees to what the Union
felt the contract required, it would submit the matter to arbitration as their repre-
sentative. In his answer, dated December 29, Reynolds stated that the matter was
not arbitrable, that the Company had concluded that it had no further use for the
men, that they were being terminated and, in a final acid comment, he concluded
the letter to O'Connor with the statement:
So you have now done your job. You have put two men out of work. I think
this is unfortunate.
On December 29, the plant management notified Mikalauskas that he was being
terminated . The next day Plant Superintendent Taylor notified Larson that he, also,
was being laid off, because "the union was raising some sort of fuss."
On the findings set forth above, it is my conclusion that both Mikalauskas and
Larson were terminated by the Respondent because the Union had- insisted at the
grievance meeting that they were not temporary laborers , that they were members
of the bargaining unit , that the contract rates were applicable to them and that
they were entitled to the minimum rate established therein, rather than the sub-
stantially lower rates which the two employees were being paid . It is well estab-
lished, and I find , that by such action the Employer plainly interfered with,
restrained , and coerced the employees in the exercise of protected concerted activ-
ity, and thereby violated Section 8(a)(1) of the Act. Bunney Bros. Construction
-Company, 139 NLRB 1516 , 1519 ; B & M Excavating, Inc., 155 NLRB 1152, Walls
Manufacturing Company, Inc., 137 NLRB 1317, 1319 , enfd . 321 F.2d 753
(C.A.D.C.), cert . denied 375 U.S. 923. N.L.R.B. v. Moss Planing Mill Co., 206
F.2d 557, 559-561 (C.A. 4). Moreover, since the moving cause for the Respond-
ent's termination of these employees was the attempt by the Union to secure them
the contract wage rates , their discharge also constituted discrimination within the
12 Although Wiegand refused to raise Milalauskas' rate to the $1.50 minimum of the
other employees , he did give him a 5-cent increase effective on June 28 , thereby bringing
the employee 's wage to $1 .35 an hour.
FLASCO MFG. CO. 617
meaning of Section-8(a)(3). The Bankers Warehouse Company, 146 NLRB 1197,
1200; Edmund A. Gray Co., Inc., 142 NLRB 590, 598; N.L.R.B. v. Bowman Trans-
portation , Inc., 314 F.2d 497, 498 (C.A. 5).13
Alleged Independent Violations of Section 8(a)(1)
The General Counsel alleged that the Respondent also violated Section 8(a) (1)
of the Act by the manner in which, on January 21, 1966, it secured from both
Mikalauskas and Larson the signed statements which have been described earlier
herein. This charge is denied by the Respondent.
Earlier in this Decision, it, has been found that the termination of both Mika-
lauskas and Larson constituted a violation of Section 8(a)(3) and (1) by the
Respondent. The charge, upon which the complaint in this case was issued, was
filed by the Machinists on January 19, 1966. By the statements in question, both
of these employees purportedly averred that they had been terminated solely for
reasons of economy and not because of concerted activities in connection with the
Union. If taken at face value, in effect, they constituted an attempted repudiation
by these employees of the basis for the charge filed 2 days earlier on their behalf
by the Machinists.14 From the findings set forth above, it is clear that these state-
ments were secured from Mikalauskas and Larson after the two employees were
given to understand that the execution of some such document was a condition
precedent to their reemployment. Thus, the plant management had Feeley tell
Mikalauskas that he could return to work but that he would first have to report
to the plant office "to sign a paper." Thereafter, Mikalauskas, a Lithuanian immi-
grant who could speak practically no English and who could not read it at all,
was proffered the statement in question and told where to sign his name. Larson,
of course, was under no such disability. He could, and apparently did, read the
statement which Wiegand presented for his signature. At the same time and during
his conversation with the employee, Wiegand held out the promise that "when
school was out to come back and maybe [he] could get back on again working
for him."
In the light of the foregoing facts, it is my conclusion that the statements of
both Mikalauskas and Larson' purportedly repudiating the substance of the charge
filed on their behalf by the Union only 2 days before, were secured under circum-
stances that'constituted interference, restraint, and coercion. By such conduct the
Respondent further violated Section 8(a)(1) of the Act. East Texas Pulp and'
Paper Company, 143 NLRB 427, 445-446; Shell Oil Company, 95 NLRB 102,
124-125.
CONCLUSIONS of LAw
1. The Respondent is engaged in commerce and the Union is a labor organiza--
tion, all within the meaning of the Act.
18 At the hearing, and in Its brief, the Respondent protested that the issues Involved in
this case should have been referred to an arbitrator for disposition in accordance with the
provisions of the collective-bargaining agreement between the parties. There is no merit
to this argument. In the first place, as appears from Reynolds' letter of December 29, 1965,
notwithstanding the Union's request that the matter in issue be referred to arbitration,
the Respondent refused on the ground that the terminations involved questions that were not-
arbitrable. Thus, having frustrated the arbitral process by this declination, the Employer
may not now urge the Board to defer the matter to arbitration. Leroy Machine Co , Inc ,
147 NLRB 1431, footnote 2. In any event, the Board's jurisdiction to remedy unfair labor
practices is not preempted, or ousted, by the possible existence of contractual obligations
arising from the same circumstances, for Section 10(a) of the Act expressly provides that
the Board's power to prevent unfair labor practices shall not be affected by any other
means of adjustment, or prevention established by agreement, law or otherwise. N L R P
v. Wagner Iron, Works, 220 F.2d 126, 137 (C.A. 7) ; N.L.R.B. v. Radio Officers' Union, 196
F.2d 960, 965 (C.A. 2), affd. 347 U S. 17 ; Local 174, Teamsters Union v. Lucas Flour Co,
369 U.S. 95, footnote 9; Cloverleaf Division of Adams Dairy Co., 147 NLRB 1410, 1415-16;
Great Dane Trailers, Inc., 150 NLRB 438, 439 Insofar as the collective-bargaining agree-
ment here involved might be construed as precluding the Union from filing charges with?
the Board or to waive any,,rights under the Act, it would be contrary to Federal law and un-
enforceable. Local 748 International Association of Machinists v. United Aircraft Corp,
337 F.2d.5, 7-10 (C.A. 2), cert. denied 380 U.S. 908; cf. Smith v Evening News Assn, 371,
U.S. 195, 197; Carey v. Westinghouse Electric Corp., 375 U.S. 261, 268, 271-272
14 Reynolds testified that he drafted the statements.
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. By discriminating in regard to the hire and tenure of employment of Simas
Mikalauskas and Randall Larson because the Union sought to have them receive
the rate of pay established by the collective-bargaining agreement, the Respondent
engaged, and is engaging, in unfair labor practices within the meaning of Section
8(a)(3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged, and
is engaging, in unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices
it will be recommended that the Respondent be ordered to cease and desist there-
from and take certain affirmative action of the type conventionally ordered in
such cases as provided in the Recommended Order below, which I find necessary
to remedy and to remove the effects of the unfair labor practices and to effectuate
the policies of the Act.
Having found that the Respondent discriminatorily terminated Simas Mikalauskas
and Randall Larson on December 30, 1965, the conventional remedy would require
that the said Respondent be ordered to offer Mikalauskas and Larson immediate
and full reinstatement without prejudice to their seniority or other rights and
privileges. However, insofar as developed by the record in this case, on January 24,
1966, Mikalauskas was reemployed at his former job with whatever benefits he had
previously had in that classification. As a result, even though his reemployment
was illegally conditioned upon his signing a statement repudiating the charge filed
by the Union on his behalf, it does not appear that any purpose would be served
by now requiring the Respondent to reoffer him his former job.15 Larson, as found
earlier, was similarly discriminated against. Whereas he was not offered reemploy-
ment immediately after he signed the statement repudiating the charge which the
Union had filed, the prospect of future employment at the end of the school-term
was held out to him by Wiegand. At some time thereafter, in a letter to Larson,
the Respondent apparently offered him reinstatement but he declined on the ground
that he had another job. Although the precise date of this offer does not appear
in the record, Larson testified that at the time he received the letter from the
Company he had other employment and was no longer interested in working for
the Respondent. In view of these facts, the Company's offer to Larson must be held
to have effectively terminated the Respondent's liability for backpay or reinstate-
ment from the date thereof. Research Designing Service, 141 NLRB 211, 216. The
Respondent, however, remains liable for making these two employees whole for
any loss of earnings that they may have suffered from the time of their termina-
tion on December 30, 1965, to the date of reemployment, in the case of Mikalauskas,
and, with respect to Larson, the date when the latter refused to accept the reem-
ployment which the Company offered. Eastern Die Co., 142 NLRB 601, 604,
enfd. 340 F.2d 607 (C.A. 1). The backpay of the foregoing employees shall be
computed in accordance with the formula approved in F. W. Woolworth Company,
90 NLRB 289, with interest thereon computed in the manner and amount prescribed
in Isis Plumbing & Heating Co., 138 NLRB 716, 717-721. It will also be recom-
mended that the said Respondent be required to preserve and make available to
the Board or its agents, on request, payroll and other records to facilitate the com-
putation of backpay due.
15 But see Simmons, Inc., 134 NLRB 1038, 1039 , where an employer that had discrimina-
torily discharged a number of strikers, reinstated them as new employees , thereby depriv-
Ing them of all seniority acquired before the strike. In that case the Board ordered that
the employer restore to the strikers their full seniority and other rights and privileges
withheld upon reinstatement and make them whole for any financial loss resulting from
their reinstatment as new employees
FLASCO MFG. CO. 619
As the unfair labor practices committed by the Respondent are of a character
striking at the root of employee rights safeguarded by the Act, it will be rec-
ommended that the said Respondent be ordered to cease and desist from infring-
ing in any manner upon the rights guaranteed in Section 7 of the Act. N.L.R.B.
v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4).
Upon the foregoing findings and conclusions and the entire record, and pursuant
to Section 10(c) of the Act, I hereby issue the following:
RECOMMENDED ORDER
Flasco Manufacturing Co., its officers, agents, successors, and assigns, shall:
1. Cease and desit from:
(a) Discouraging membership in any labor organization of its employees, by
discriminating in regard to their hire, tenure, or any other terms or conditions of
employment.
(b) Discharging, laying off, or otherwise discriminating against any employee
for seeking to secure the wage rate provided by the collective-bargaining agreement
in effect between Fiasco Manufacturing Co. and District Lodge 162, International
Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor
organization.
(c) Coercively, or otherwise unlawfully, inducing or encouraging any employ-
ees to repudiate unfair labor practice charges filed on their behalf by any labor
organization.
(d) In any other manner, interfering with, restraining, or coercing its employ-
ees in the exercise of their right to self-organization, to form, join, or assist any
labor organization, to bargain collectively through representatives of their own
choosing, or engage in concerted activities for the purpose of collective bargain-
ing or other mutual aid or to refrain from any or all such activities.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Make whole Simas Mikalauskas and Randall Larson for any financial loss
suffered as the result of their discriminatory termination, as provided in the sec-
tion of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
'examination and copying, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records necessary or
appropriate to analyze the amount of backpay due.
(c) Post at its plant in Sioux City, Iowa, copies of the attached notice marked
"Appendix." 16 Copies of said notice to be furnished by the Regional Director for
Region 18, shall, after being duly signed by a representative of the Respondent,
be posted by it for 60 consecutive days thereafter. Reasonable steps shall be taken
by the said Respondent to insure that said notices are not altered, defaced, or
,covered by any other material.
(d) Notify said Regional Director, in writing, within 20 days from the receipt
of this Decision, what steps the Respondent has taken to comply herewith.17
16 In the event that this Recommended Order Is adopted by the Board, the words, "a
Decision and Order" shall be substituted for the words, "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order is enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
1] In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our employees that:
WE WILL NOT discourage membership of our employees in, or activities on
behalf of, District Lodge 162 , International Association of Machinists and
Aerospace Workers, AFL-CIO, or any other labor organization , by discharg-
ing or otherwise discriminating against any of our employees.
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discharge, layoff, or otherwise discriminate against any
employee because the aforesaid Union , or any other labor organization, has
sought to secure for such employee the wage rates or any other benefit pro-
vided by a collective -bargaining agreement.
WE WILL NOT, in the event a labor organization files unfair labor practice
charges against us, induce or encourage any employee to repudiate such
charges in a manner constituting interference , restraint , or coercion in viola-
tion of Section 8(a)(1) of the Act.
WE WILL NOT in any other manner, interfere with, restrain, or coerce
employees in the exercise of their right to self-organization , to form, join,
or assist the above-named Union , or any other labor organization , to bargain
collectively through representatives of their own choosing , and to engage in
concerted activities for the purpose of collective bargaining or other mutual
aid or protection or to refrain from any or all such activities.
WE WILL make whole Simas Mikalauskas and Randall Larson for any
financial loss suffered as a result of the discrimination against them.
FLASCO MANUFACTURING CO.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 316
Federal Building , 110 South Fourth Street , Minneapolis , Minnesota 55401, Tele-
phone 334-2618.
Local No . 41, International Brotherhood of Electrical Workers,.
AFL-CIO and New York Telephone Company. Case 3-CC-3 39..
January 5, 1967
DECISION AND ORDER
On October 19, 1966, Trial Examiner George A. Downing issued
his Decision in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. The Trial Examiner also found that Respond-
ent had not engaged in certain other unfair labor practices and rec-
ommended that the complaint be dismissed with respect to such alle-
gations. Thereafter, exceptions to the Trial Examiner's Decision and
supporting briefs were filed by the Respondent and by the General
Counsel. The Charging Party filed an answering brief in support of
the Trial Examiner's Decision.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Brown, Jenkins, and Zagoria].
162 NLRB No. 57.