Florida Machine & Foundry Co.

National Labor Relations Board - Board Decisions

Mar 13, 1969

174 N.L.R.B. 1156 (N.L.R.B. 1969)

1 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Florida Machine & Foundry Company and Fleco
Corporation and United Steelworkers of America,
AFL-CIO. Cases 12-CA-3831 and 12-CA-3915
(1-3)
March 13, 1969
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On April 29, 1968, Trial Examiner Melvin
Pollack 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 further
found that the Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint and recommended that they be dismissed
Thereafter the Respondent, the Charging Party, and
the General Counsel filed exceptions to the Trial
Examiner's Decision, and the Respondent and the
Charging Party filed supporting briefs.
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
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and Inds that no
prejudicial error was committed. The rulings are
hereby affirmed The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings,' conclusions,' and recommendations of the
Trial Examiner with the additions and modifications
noted below
1 We agree with the Trial Examiner that the
Company violated Section 8(a)(5) and (1) by failing
to bargain in good faith with the Union.
The Trial Examiner further found, and we agree
that the Company independently violated Section
'These findings and conclusions are based , in part , upon the credibility
determinations of the Trial Examiner , to which the Respondent excepts
On the basis of our careful review of the record, we conclude that the Trial
Examiner ' s credibility findings are not contrary to the clear preponderance
of all the relevant evidence Accordingly , we find no basis for disturbing
those findings Standard Dry Wall Products , Inc 91 NLRB 544, enfd 185
F 2d 362 (C A 3)
We do not adopt the Trial Examiner ' s conclusion contained in
subsection l,(4) in his " Analysis and Conclusions" that as a practical
matter the Company was insisting that the Union virtually surrender its
rights to strike without the usual "quid pro quo of compulsory arbitration
of grievances "
As we are in agreement with the Trial Examiner ' s conclusion that the
strike was an unfair labor practice strike at all times , we find it
unnecessary herein to consider the rights of economic strikers However,
we do not adopt his conclusions on the rights of economic strikers, to the
extent they do not conform to the Board ' s views as expressed in The
Laidlaw Corporation , 171 NLRB No 175
8(a)(5) of the Act by refusing to comply with the
Union's request for area wage survey data, and by
unilaterally increasing wages on October 2, 1967
With respect to the wage survey, however, the
record indicates that the Company, through counsel,
ultimately sent a letter to the Union dated August
15, 1967, which included the wage "survey" as to
four job positions The record further shows
however, that the Union initially requested such
information by letter, dated May 31, 1967, and
renewed its request on July 27 and August 8. While
letter from the Company to its counsel which gave
the survey information was dated June 12, 1967, it
was not transmitted to the Union until August 15
Since the information was readily available on or
about June 12, we find that the 2 months delay in
transmitting such information was unreasonable and
therefore violative of Section 8(a)(5) of the Act.
2 The Trial Examiner, in footnote 20 of his
Decision, found nothing improper in the Company's
refusal to supply the Union with the names,
classifications, and wages paid to employees after
the strike began The Trial Examiner stated that
counsel for the Company explained that the
Company was hesitant to supply the names of
employees assertedly because of the "large number
of instances involving violation and intimidation by
strikers against employees working" and offered to
supply information on the wages paid to any strike
replacement believed by the Union to be paid more
than was the replaced striker. However, mere
assertions of the Company's position does not
constitute affirmative proof of harassment Absent
more positive evidence of employee harassment, the
Company was not relieved of its obligation to
furnish such information and its refusal to do so is
an additional violation of Section 8(a)(5).3
3 The Trial Examiner failed to include the name
of employee Percy Jackson on Appendix A of his
Decision. The Amended Consolidated Complaint
names Jackson as an employee requesting
reinstatement on or about April 15, 1967, and the
Respondent's answer admits this fact Jackson was
one of the employees to whom the Respondent sent
a termination letter on March 16, 1967. An exhibit
shows that a list of strikers that requested
reinstatement to the job includes the name of
Jackson and a date of application of July 10, 1967,
which is the date of the Union's telegraph
application for reinstatement of strikers. A list
purporting to show dates on which strikers were
replaced does not indicate that Jackson was
'Member Zagora agrees that the Respondent violated Section 8(a)(5) in
refusing to furnish the names of employees in the unit , and their wages
However , in so finding, Member Zagoria notes that such information was
presumptively relevant to the Union' s function as collective- bargaining
agent The Union' s latest request for the information occurred on August
7, well after the strike was over and many of the strikers had returned to
work The Employer 's written refusal did not occur until August 15
Member Zagoria does not find it necessary, in the circumstances of this
case , to decide whether the Respondent had a similar duty to supply this
information during the pendency of the strike
174 NLRB No 170
FLORIDA MACHINE & FOUNDRY CO.
replaced. In view of these facts we shall add the
name Percy Jackson to Appendix A, as a striker
entitled to reinstatement and backpay.
In The Remedy section of his Decision, the Trial
Examiner recommended that the Respondent make
the strikers whole for any loss of pay suffered
because of the discrimination against them, but he
did not determine a date on which the backpay
period should begin In view of the various dates on
which the strikers made application for
reinstatement, we shall order the backpay period for
each striker to begin 5 days after the date of such
striker's application and to run until the date of
reinstatement, with actual dates to be determined in
compliance proceedings.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and orders that the Respondent,
Florida Machine & Foundry Company and Fleco
Corporation, Jacksonville, Florida, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order, as herein modified
1. Insert in paragraph 1(d), following the words
wage surveys ." the phrase, "within a
reasonable time,".
2. Delete from paragraph 2(d) of the
Recommended Order, the words "in the section
entitled `The Remedy'," and substitute therefor the
word, "herein
3. Appendix A is modified by adding the name of
Percy Jackson.
4. Insert in the fifth indented paragraph of
Appendix B following the words ". . wage
surveys . ' the phrase, "within a reasonable
time .
For the reasons set forth in his partial dissent in Sea- Way Distributing,
Inc , 143 NLRB 460, 461 - 462, Member Brown would order backpay for
the discharged strikers from the date each received the Respondent ' s letters
of March 16 and 17, or the date on which each applied for reinstatement,
whichever is earlier As to those strikers who had not applied prior to
receipt of the termination notices, in Member Brown ' s view it cannot now
be determined whether they continued on strike despite their discharge or
whether their failure to make formal application resulted from the
Respondent ' s refusal to reinstate , except as new employees , those who did
apply prior thereto Hence all are entitled to full backpay
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MELVIN POLLACK, Trial Examiner . This proceeding
was heard in Jacksonville , Florida , on January 23-25,
1968, pursuant to an amended consolidated complaint
issued on October 30 , 1967, and amended at the hearing,
upon charges filed on various dates in April , July, and
October, 1967 , by the United Steelworkers of America,
AFL-CIO, herein called the Union The principal
1157
allegation of the complaint is that Respondent Florida
Machine & Foundry Company and Fleco Corporation,
herein called the Company, violated Section 8(a)(1),(3),
and (5) of the National Labor Relations Act, as amended,
by refusing to bargain in good faith with the Union over
the terms of a collective- bargaining contract and by
refusing to reinstate employees who struck in protest
against the Company's unlawful conduct. After the close
of the hearing, the General Counsel and the Company
filed briefs which I have carefully considered
Upon the entire record, including my observation of the
witnesses, I make the following
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE COMPANY
The Company manufactures machinery parts at its
plant in Jacksonville, Florida Its interstate sales during
the 12-month period preceding the issuance of the
complaint exceeded $50,000. I find that the Company is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act
Ii. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America , AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the
Act
III THE UNFAIR LABOR PRACTICES
A The Company's Preelection Conduct
Pursuant to a representation petition filed by the
Union, the Board conducted an election at the Company's
plant on September 22 and 23, 1966 About 2 or 3 weeks
before the election, the Company's vice presidents,
Thomas Madison and Thomas Peacock, interviewed
prospective voters Alex Chance testified that Madison
called him into the production office and asked him if he
knew anything about "the fellows trying to get a
Union in there " Chance answered "no" and Madison
told him to report back "anybody trying to get a Union in
here " Chance said he would do so and Madison reminded
him that the Company had a bad strike in 1958 and
remarked that Chance had "a big family" and could not
afford to lose his fob.' James Kitchens testified that
Madison called him into the foundry office, asked him
how he felt about the Union, and reminded him about the
1958 strike Thomas Lewis testified to the same effect.
Eddie Brown testified that Madison told him that men
"lost their jobs and homes" during the 1958 strike, that if
the Union came in now it would cause strikes, and that he
and Company President Russell did not want a union
Alexander Brown testified that Madison said that Brown
had 5 kids, that Brown had worked 4 1/2 years for the
Company, that the Union was trying to get in, and that
the Company did not want the Union Madison asked
Brown what he thought about the Union and if he had
heard "anybody say anything about it " Brown replied
that he was "not for the Union" and that he had not
heard anyone talk about the Union Joe Singleton testified
that Madison spoke to him in the "old personnel office"
Madison noted that Singleton had been with the Company
"quite a while" and had given "no trouble " He inquired
if Singleton had gone to union meetings and if he was a
member of the Union Singleton said he had been to a few
'Madison had Chance ' s personnel file "in front of him " during the
interview
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union meetings but that he was not a union member
Madison asked Singleton if he remembered the 1958
strike and Singleton answered, "Of course " Madison said
a lot of men had good jobs but they struck and lost their
homes, their automobiles, and other things He also said
"one thing was sure," that if the Union came in, "we'll
never sign a contract "
John Handley and Herbert Wright testified to
interviews by Vice President Thomas Peacock Peacock
told Handley that he wanted to talk to him about the
Union, that he understood that Handley wanted a better
job, and that he would get it "after everything was over"
He reminded Handley that he was "not getting any
younger," that "according to the record" he had "a big
family," and that it was hard to get a job at his age
Peacock spoke to Wright in the warehouse office He
showed Wright his personnel file and said Wright was "a
good worker" who "didn't get into any trouble " Peacock
asked Wright what he thought about the Union and
Wright said he thought it was "a good idea" because it
would improve "working t.onditions and seniority and so
forth " Peacock said if the Union won, it would not get a
contract because "it was a non-union job " He added that
the men "were making good money" and told Wright to
get up and leave 1
The Company's officials also spoke to groups of
employees about the coming election Thomas Lewis
testified that President Franklin Russell "made a speech
out in the front to everybody that day" in which he said
the Company did not want a union, that "it could be like
it was in '58," and that employees who went "out" would
lose their jobs James Witheres testified that Russell spoke
to the day shift employees 2 or 3 weeks before the
election, that he talked about the 1958 strike, urged the
employees to vote "no," and concluded his remarks by
saying he was going to say "something that's not lawful
for me to say We won't have a Union " Joe Singleton
placed the meeting a week or two before the election He
said Russell spoke about the 1958 strike, promised the
employees "a lot of work," and said "this is the way I
would vote" as he put an "X" in the "No" box of a
ballot-like chart Charles Martin testified that Russell said
among other things that he did not think the employees
needed a union and that it was not "a policy of the
Company to have one "
Alex Chance testified that about a month before the
election, Plant Superintendent George Peacock told the
"whole night shift" that he had heard "the boys was
trying to get a Union in there" but that it was not a union
job and that a union would never be brought in there "as
long as he had something to do with the plant " Chance
further testified that President Russell spoke to the night
shift before the election and said "I'd vote just like this"
as he marked "a big, wide piece of paper" with a "No"
vote.
Harold Mays testified that Foreman Frazier Rhoden
came to his house 2 or 3 weeks before the election, said he
understood that Mays was "one of the Union pushers,"
and, in a discussion about the Union, declared that "the
Company would never sign a contract with any union "
Lephus Felton testified that about 2 or 3 weeks before the
election, Foreman Luke Morgan remarked to him and
On cross-examination Wright repeated his prior testimony except for
Peacock ' s alleged statement that the Union would not get a contract if it
won the Board election
other employees that he knew how Mr Russell felt about
unions and that he would never sign a contract with the
Union
B The Bargaining Negotiations Before the Strike
The Union won the September 1966 election and was
certified on October 3 as the collective-bargaining
representative of the Company's production and
maintenance employees The Union submitted a written
contract proposal to the Company on October 10 The
first bargaining session occurred on November 28 ' The
parties reviewed the Union's contract and agreed on
recognition and union responsibility clauses, a 60-day
probationary period for new employees, management
control of hours of work, pay for a holiday occurring
during an employee's vacation, no cumulative vacations,
regular pay plus vacation pay if an employee elected to
work during his scheduled vacation if requested to do so
by the Company, leaves of absences without loss of
seniority for death in the family and serious illness, union
use of plant bulletin boards, and submission of discharges
to the contract grievance procedure Company attorney
Bowden said he would prepare a counterproposal for the
Company Union Representative Edwards urged the
Company "to meet as soon as possible, preferably in a
succession of days " Bowden said he had a busy schedule
and could not meet again until December 19 Edwards
objected but Bowden insisted that he had other
commitments The parties agreed to meet again on
December 19
At the December 19 meeting, the Company submitted a
complete contract proposal ° The proposal included the
following provisions
ARTICLE II
Management Rights
A The management of the Company's plants and
the direction of its working forces, including the right
to establish new jobs, abolish or change existing jobs,
increase or decrease the number of jobs, temporarily or
permanently, change materials, processes, products,
equipment, to subcontract any of the manufacturing,
warehousing and delivery, to discontinue, temporarily
or permanently, in whole or in part, its business of
manufacturing and delivery, to increase or decrease the
number of working hours per day or per week, shall be
vested exclusively in the Company and not subject to
arbitration The Company shall be the sole judge of
applicants for employment, their qualifications and
physical fitness Subject to the provisions of this
Agreement, the Company shall have the right to
schedule and assign work to employees to be
performed, recall employees who are laid off, demote,
suspend, discipline or discharge for any cause not in
violation of this Agreement
B In addition to items mentioned in Paragraph "A,"
the Company reserves and retains in full and
completely any and all management rights, prerogatives
'A meeting had been scheduled for October 27, but no bargaining
occurred that day as only a single employee-member of the Union's
negotiating team appeared The Company negotiators were present
'The Company' s proposal eliminated or modified agreements reached on
November 28, including those on holiday and vacation pay, leaves of
absence , union use of bulletin boards , and submission of discharges to the
contract grievance procedure
FLORIDA MACHINE & FOUNDRY CO. 1159
and privileges, except to the extent that such rights,
prerogatives and privileges are specifically limited by
this Agreement Such management rights as the
Company reserves in Paragraph "A" and "B," and
those rights which are not limited by this Agreement,
shall not be subject to arbitration if this be provided for
by this Agreement
ARTICLE VII
Grievances
A grievance is defined as a dispute between the
Company and its employees over the application,
interpretation or alleged violation of a specific provision
of this Agreement
Should an employee have any grievance, an earnest
effort shall be made to adjust such grievance
immediately in the following manner
A Step No I Within three (3) days after the
occurrence of the thing or event on account of which
the employee shall feel aggrieved, such aggrieved
employee, accompanied by his steward and the
department foreman shall attempt to adjust such
grievance
B Step No 2 If such grievance is not adjusted
under Step No I above within two (2) days after the
decision of the department foreman, the employee shall,
within said two-day period, if he elects to further
pursue the grievance, reduce such grievance to writing,
giving all material facts and witnesses, which shall be
signed by the aggrieved employee and dated Such
written statement shall immediately be referred to the
Business Agent of the Union and Department Manager,
who will attempt to adjust the grievance
C Step No 3 If such written grievance is not
adjusted under Step No 2 above within five (5) days
from its submission to the Department Manager, the
aggrieved employee and the Union may refer the
matter to a Management designee, who will attempt to
adjust such written grievance within ten (10) days from
the date of its receipt
D Employees are not to leave their jobs for the
purpose of investigating, presenting, handling or settling
grievances All such activities are to be done on off
time of all employees concerned without pay from the
Company The Company will cooperate in this respect
and will make available its representatives at mutually
convenient times
E Company prerogatives and reserved rights of
management shall not be subject to grievance
procedure
F If time limitations set out in this Article are not
observed or waived in writing by both Company and
Union, the grievance in which such non-observance
occurred shall be considered null and void and at an
end
ARTICLE VIII
Arbitration
Any grievance which remains unsettled after having
been fully processed through the grievance procedure
pursuant to Article VII may be submitted to arbitration
upon the written request of either the Company or the
Union, provided such request is made within twenty
(20) days after the final decision of the Company and
provided further the other party agrees to arbitrate the
said grievance
If the parties cannot agree to arbitrate the dispute,
then either party may resort to its economic power
under the following terms and conditions
Ten (10) days after the answer is received denying a
request for arbitration, either party may give written
notice by registered mail declaring the No-Strike
No-Lockout Clause inapplicable to the dispute between
the parties as to the subject matter of the grievance
only Such written notice regarding said No-Strike
No-Lockout Article shall be effective for a period of
thirty (30) days after such notice declaring No-Strike
No-Lockout Article inapplicable, as aforesaid, is
received by the other party The giving and receipt of
said notice in reference to the No-Strike No-Lockout
Article, or the institution of a strike or lockout
pursuant thereto, will not in any way change, alter or
affect any condition, agreement or requirement of this
contract, except as specifically sei forth in this Article,
and the contract shall remain in full force and effect for
its stated term in all other respects
If the Union does not call a strike, and the Company
does not institute a lockout during the thirty (30) day
period following receipt of notice as stated above, then,
in that event, the No-Strike No-Lockout Article
automatically becomes effective again on the 31st day
following receipt of said 30-day notice until again
declared inapplicable under this Agreement or until
expiration of this Agreement, whichever occurs first
If the Union calls a strike or the Company institutes
a lockout during the said 30-day period, the No-Strike
No-Lockout Article shall continue inapplicable to said
strike or lockout so long as said strike or lockout is
effective and current At the conclusion of the strike or
lockout, upon agreement of the parties upon the
disputed grievance, the No-Strike No-Lockout Article
shall automatically become effective again
Rights of management not specifically limited by this
Agreement are hereby reserved by the Company and
shall not be subject to arbitration
ARTICLE XI
No Strike Clause
A The Union will not cause or engage in or permit
its members to cause or engage in, nor will any
member of the Union take part in any strike, sit-down,
stay-in, slow-down, picketing or sympathy strike in or
upon premises or equipment of the Company, or
against the Company upon other premises or
equipment, or any curtailment, interruption or
interference with work of the Company or its agents,
servants or employees, nor cause such action to its
members or any other person
B Any employee participating in any action contrary
to this Article may be disciplined by the Company by
layoff or discharge in the discretion of the Company
C The Company agrees that it will not cause a
lockout of employees during the life of this Agreement
It is understood and agreed that a lockout means a
voluntary, complete cessation of operations of the
Company to prevent employees from working
D For violation of this Article, the parties consent
to the entry of a state court consent temporary
restraining order without necessary legal notice against
the offending party. Before this Section is invoked, the
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
offending party shall be notified immediately of the
violation.
E The parties agree that in the event of a breach of
the Union's no-strike promise contained in this Article,
such breach shall not be referable to the grievance
procedure herein, but shall be the subject of a suit or
action in federal or state court at the Company's
discretion.
F If a strike occurs in violation of this Article, the
Company shall not be required to discuss the dispute in
question, or any other matter or grievance, while such
strike is in effect
ARTICLE XII
Contract Constitutes Entire Agreement of Parties
The parties acknowledge and agree that during the
negotiations which resulted in this Agreement, each had
the unlimited right and opportunity to make demands
and proposals with respect to any subject or matter
included by law within the area of collective bargaining
and that all the understandings and agreements arrived
at by the parties after the exercise of that right and
opportunity are set forth in this Agreement. Therefore,
the Employer and the Union, for the life of this
Agreement, each voluntarily and unqualifiedly waives
the right to request or require further collective
bargaining, and each agrees that the other shall not be
obligated to bargain collectively with respect to any
matter or subject not specifically referred to or covered
by this Agreement, whether or not such matters have
been discussed, even though such subjects or matters
may not have been within the knowledge or
contemplation of either or both parties at the time that
they negotiated or signed this Agreement This
Agreement contains the entire contract, understanding,
undertaking and agreement of the parties hereto and
finally determines and settles all matters of collective
bargaining for and during its term, except as may be
otherwise specifically provided herein
The Company's proposal also made its working rules
part of the contract, provided for seniority by job
classification within a department, and retained its
existing practices as to overtime work, insurance,'
vacations, and holidays The proposal noted that job
classifications and wage rates were "To Be Negotiated "
The Union accepted with some modifications, the
Company's proposals on recognition clause, voluntary
union membership and union activity in the plant,6 union
visitation of the plant, a 60-day probationary period for
new employees, absenteeism, bulletin boards, production
work by supervisors, some leave of absence provisions, a
Military clause, washing facilities, and safety equipment
The Company said it would make no wage offer because a
wage survey showed that its wages were equal to or better
than those paid by other companies in the Jacksonville
area The Union rejected the Company's proposed
management rights, Company rules, arbitration, no-strike,
and "Entire Agreement" clauses The parties did not
resolve their differences on seniority, grievance procedure,
or economic items such as call-in pay, overtime pay,
'The Company notified its employees on August 3 , 1966, that a revised
insurance plan expfanding hospital, medical , and surgical benefits, and
increasing life insurance to $5 , 000, had been scheduled to go into effect on
August I , but had been put "on the shelf" because the Union had claimed
representative status on August 2
holidays, and vacations.
At the end of the meeting, Bowden said he would check
at his office and notify union representative McCall about
a date for the next meeting Bowden did not call McCall,
who tried unsuccessfully to reach Bowden before leaving
town A meeting was scheduled for January 6, 1967, when
McCall reached Bowden by telephone at his home a few
days later
The parties did not significantly change their bargaining
positions at the January 6 meeting' At the end of the
meeting, Attorney Bowden said the Company wanted its
insurance representative, Horovitz, at the next meeting
and that he would have to work out a meeting date with
Horovitz Staff representative Edwards urged the
Company to meet more frequently and said there was no
need to wait on Horovitz "as he was just going to be
talking apout one item, anyhow." The Company insisted
that no meeting be scheduled until Horovitz could attend
The next meeting was held on January 25, 1967
Horovitz explained the Company's insurance and pension
plan and left the meeting The Company offered to
increase the daily hospital room rate from $9 to $15 a day
and, based on a new survey, it also offered to increase the
wages of four skilled classifications' The Company
accepted a grievance procedure clause drafted by the
Union which left the question of compulsory or voluntary
arbitration open The parties' positions otherwise
remained unchanged
Meetings were held before a Federal mediator on
February 7, 13, and 22 At the February 7 meeting, the
Union inter alia offered to "consider" the Company's
no-strike clause if the word "permit" was changed to
"authorize," to accept the Company's management rights
clause,' and to drop its demand for call-in pay, if the
Company would increase wages 22 cents across the board,
add a holiday, and increase hospital benefits to $20 per
day, room and board The Company refused to modify its
no-strike clause and turned down the Union's proposals
on wages, holidays, and insurance benefits It offered,
however, to increase shift differentials by 2 cents a'id to
give a wage increase of 8 cents across the board. The
positions of the parties did not change materially at the
meeting on February 13 At the February 22 meeting, the
Union insisted inter alia on a 20-cent wage increase, the
day after Thanksgiving as a holiday, time and a half pay
after 8 hours, compulsory arbitration, its no-strike,
no-lockout clause, and exclusion of the Company's rules
as part of the contract The Company rejected the Union's
demands At a union meeting on February 26, the
members rejected the Company's contract offer and
authorized a strike
'Union representative McCall said the Union would agree to the
Company ' s proposals on union membership and activity "as long as we
had the check -off provision in the agreement " Bowden said the checkoff
"would not bar us from getting a contract "
'In addition to agreeing to a union grievance committee of 7 rather than
14 members , the Union said it would draft a new seniority provision The
Union dropped its demand for plantwide seniority but did not accept the
Company ' s proposal for seniority based on departmental job classification
The Company reduced the number of hours to be worked for vacation
eligibility from 1,800 to 1,700, the Union asking for 1,500
The proposed increase applied to about 30 of the 300 employees in the
bargaining unit
'The Union suggested that the clause be modified to provide that the
Company would not subcontract work with an object of discriminating
against union members The Company agreed to this modification
FLORIDA MACHINE & FOUNDRY CO. 1161
C. The Strike
The strike began at 9 30 p.m. on February 28, 1967
That night, Plant Superintendent George Peacock told
Alexander Brown and Elton Stewart "behind the furnace"
that he appreciated their "staying in here and helping me
out" and that he was going to give them "a dime raise "
Peacock also told four or five employees in the shipping
area, including Elijah Fishburne, Johnnie Hall, and
Clifford Hall, that the guys who remained in the plant
that night would receive a 10-cent an hour raise The next
morning, striker James Withers, a carpenter, was allowed
to come into the plant to get some tools "to do some
church work " As Withers unlocked his box, Vice
President Thomas Peacock suggested that he "take it all"
because he would not work there again On Friday,
March 3, Plant Superintendent George Peacock told Alex
Chance and one or two other employees who had come to
the plant for their paychecks that they were replaced and
terminated Chance was not in fact replaced until March
13, according to a list compiled from the Company's
personnel records
Striker Johnnie Snead, a crane operator, reported to
the plant on Monday morning, March 13, and told
Superintendent Peacock he wanted to go back to work.
Peacock went to the "main office" and, on his return
about 45 minutes later, told Snead he had been replaced,
but that he "could go upstairs and put in an application
and start over as a new man." Snead said, "I'll be
damned, after 12 years" and Peacock said, "That's the
way it goes " Snead said he would not accept a job "as a
new man" and asked about his checks Peacock left to get
Snead three checks due him. Upon Peacock's return with
the checks, James Mulloy, a nonstriker, asked him who
was going to run the crane Peacock said, "Just a
minute," and handed Snead his checks As Snead was
leaving the plant, Foreman Rhoden asked him, "What
happened?" Snead replied, "They wanted me to start back
as a new man," and Rhoden shook his head i° The
Company's replacement list shows that six crane operators
(Snead, Avery Cobb, Albert Perry, Van Driggers, Howard
Robinson, and Albert Purdy) were strikers, that Perry was
hired on March 13 as a replacement for Purdy, and that
Van Driggers was not replaced until March 15.
On March 15, strikers J E Sarrells, Melvin Ponce,
Raymond Miller, and Ralph Hodges told Foreman Luke
Morgan they wanted to go to work ii Morgan said they
had been replaced and "would have to come back as new
employees " As the men "started back out," Personnel
Manager Cline told Sarrells that they "could go back to
work if [they] filled out the applications "i= Sarrells
returned to the plant 6 weeks later and was hired as a
setup man at his old rate of pay but with "loss of
seniority and vacation time "
On March 16 and 17, the Company sent letters to
about 160 strikers adv: ang them that they had been
permanently replaced and were terminated The Company
thereafter employed strikers only upon personal
application at its personnel office and as new employees
Welder Carl Hillyard asked about his job 3 or 4 weeks
after the strike began and was told by one Norman
"Snead noticed as he entered the plant at 7.30 a m that his crane "was
parked - there was nobody in it "
"Sarrells and Ponce were setup men, and Miller and Hodges were
welders
"The Company' s striker replacement list shows replacements for these
four men before March 15
Wilcox, speaking for Foreman Luke Morgan, that
Morgan had no job open for him Hillyard "a little bit"
later asked another applicant for employment whether he
had been hired by Morgan This applicant, who was on
his way to the personnel office, said he had been hired by
Morgan. Hillyard asked him "what he was applying for"
and was told "welder."
Machinist George Loznicka asked Plant Superintendent
George Peacock for work on May 30, saying that he
"heard that if you wanted to go back you'd have to go
back as a new man " Peacock said they had "plenty of
work" and a place for Loznicka and that his rate of pay
would be the same as it was before the strike He
instructed Foreman Grady Ivey to take Loznicka to the
personnel office when he came in the next morning to "fill
out an application and be photographed " Loznicka later
that day decided he did not want to return as a new
employee and sent word by a friend to Ivey that he
"wouldn't be in
By telegram dated July 10, the Union advised the
Company that it had directed "all striking members
to return to work as soon as possible beginning" Monday
morning, July 10, that the telegram was "the Union's
official notice that all strikers hereby request to return to
work," and that the return to work was not conditioned
upon any union demand "save that such employees be put
to work on the same job each previously held or on a
similar job of equivalent pay " The Company thereafter
accepted applications from strikers and recalled many of
them to work as new employees
Plant Superintendent George Peacock testified that the
Company was short of men in "most" job classifications
when the strike began, that supervisors and office
personnel performed some production work at that time
"as an emergency measure," and that this situation
continued for the first month of the strike He further
testified that for the first 2 months of the strike "new
groups" of employees were brought to the plant by a
motor vehicle with "quite a few seats in it - not a big
bus " He confirmed that many of those employees had no
prior training in the type of work performed at the plant,
that they were hired on a 30-day probationary period, that
10 to 15 percent of the new employees turned out to be
"unsatisfactory," and that another 10 to 15 percent failed
to show up after the first day or two of work.
D Bargaining Meetings During and After the Strike
The Company and the Union met before the Federal
mediator on March 14, May I, and August 7, 1967 No
concessions were made by either party at the March 14
meeting The Union reduced its wage request from 20
cents to 18 cents across the board at the May I meeting
At the August 7 meeting, the Union offered concessions
with respect to its "Intent and Purposes" clause, inclusion
of the Company rules in the contract, insurance, physical
examinations, and departmental seniority, and dropped its
request for an additional holiday The Company agreed to
change the word "permit" to "authorize" in its no-strike
clause By letter dated August 8, 1967, Edwards notified
Attorney Bowden that the Union would accept a I5-cent
an hour general wage increase Edwards asked Bowden for
the names, jobs, and rates of pay of the employees
currently employed in the bargaining unit, and also asked
him for the area surveys on which the Company had
based its position on wages during the negotiations 11 On
The Union had initially requested the area survey data by letter dated
May 31, 1967
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
August 15, Bowden advised Edwards by letter that the
Company "was hesitant to furnish the names of
employees" because of the "large number of instances
involving violence and intimidation by strikers against
employees working." Bowden forwarded with this letter a
letter dated June 12, 1967, from Vice President Madison
which referred to an area wage survey as supporting the
Company's proposed wage increases for certain skilled
employees. The Union never received any actual area
wage survey from the Company
On October 2, 1967, the Company without notice to the
Union put into effect wage increases offered to the Union
during the bargaining negotiations
E. Analysis and Conclusions
I The refusal to bargain
1 find upon the entire record that although the
Company met with the Union and exchanged contract
proposals, it did not bargain in good faith, as required by
the Act, that is, "with an open and fair mind, and a
sincere purpose to find a basis of agreement touching
wages and hours and conditions of labor " Globe Cotton
Millsv NLRB, 103 F 2d 91, 94 (C A 5),NLRB v
Herman Sausage Co , 275 F 2d 229, 231-232 (C A
The record shows
5)
(1) The Company foreshadowed its failure to bargain in
good faith when, during the preelection campaign period,
its officers and other management personnel stated to
employees that the Company did not want the Union and
would not sign a contract with the Union if it did win the
election ' ° Billups Western Petroleum Company, 169
NLRB No. 147.
(2) The Company disregarded its obligation under
Section 8(d) of the Act to meet and negotiate with the
Union with reasonable frequency At the first bargaining
session on November 28, 1966, Union representative
Edwards asked for another meeting "as soon as possible"
and suggested that the parties meet "preferably in a
succession of days " The Company refused to meet again
until December 19, because of Attorney Bowden's
insistence that he had a busy schedule and other
commitments After the December 17 meeting, Bowden
failed to call Union representative McCall, as he had
agreed to do, about a date for the next meeting, and a
meeting was arranged for January 6, 1967, only when
McCall reached Bowden by telephone at his home a few
days later At the January 6 meeting, the Company
insisted that no meeting be scheduled until its insurance
representative, Horovitz, could attend to explain the
Company's insurance and pension plan It adhered to this
position although Union representative Edwards protested
that Horovitz would be talking lust "about one item."" In
consequence the next meeting was not held until January
25, 1967
'The employee testimony to this effect is quite detailed and mutually
corroborative For this reason , and as the employees otherwise impressed
me as reliable witnesses , I have credited their testimony over the testimony
of the Company' s witnesses where in conflict Although the conversations
and speeches in question occurred more than 6 months before the filing of
the charges in this case , they are properly considered under Section 10(b)
of the Act as background against which to assess the later negotiations
"The Company notified the employees on August 3, 1966 , that it had
worked out with the insurance company an increase in the hospital room
rate from $9 to $15 a day, expanded benefits in other areas of coverage
(including maternity benefits ), and an increase in life insurance to $5,000
According to the notice , the Company had to place "this new medical
(3) The Company proposed and insisted throughout the
negotiations that the Union accept contract clauses which
drastically curtailed the Union's representation rights 16
Article 11 A of its proposed contract, titled "Management
Rights," vested in the Company, "not subject to
arbitration," the right to establish, abolish or change fobs,
to change materials, products, processes, and equipment,
to subcontract or discontinue operations, and, "Subject to
the provisions of this agreement," the right to schedule
and assign work, to recall laid-off employees, and to
demote, suspend, discipline, or discharge employees
Article 11 B further reserved to the Company without
recourse to arbitration "any and all management rights,
prerogatives and privileges" not "specifically limited" by
the contract Article VII E, Grievances, excluded from the
grievance procedure "Company prerogatives and reserved
rights of management " Article VIII, Arbitration,
similarly excluded reserved management rights from
arbitration Under Article XII, Contract Constitutes
Entire Agreement of Parties, the contract settled "all
matters of collective bargaining for and during its term"
and the parties waived their right to bargain on matters
not covered by the contract "even though such subjects or
matters may not have been within the knowledge or
contemplation of either or both parties at the time they
negotiated or signed this Agreement " As the Company
included in its proposals no improvements in existing
conditions of employment which might compensate the
employees for this sweeping relinquishment by the Union
of their right to representation, its proffered contract was
one which the Union could not possibly justify to the
employees and hence frustrated rather than furthered
collective bargaining " Yet the Company never
significantly retreated from its initial bargaining position,
so making negotiations an exercise in futility, for without
the Company's proposed contract the Union at least
retained unimpaired its statutory right to advance
consultation and bargaining before the Company could
effect changes in the employees' wages, hours, and other
conditions of employment
(4) The Company insisted on a stringent no-strike
clause and also insisted on voluntary arbitration of
grievances Although the Company's arbitration clause
implicitly modified the no-strike clause to permit the
Union to strike over a grievance upon 10-day notice after
Company denial of a request for arbitration, other
provisions in the Company's proposed contract greatly
program on the shelf ' because of the Union ' s representation claim
Although the Company insisted that negotiations be postponed until
Horovitz could be present to explain the insurance and pension plan, it
does not appear that Horovitz or any other company representative
mentioned the improvements previously worked out with the insurance
company The Company never offered the Union insurance benefits equal
to those cited in the August 3 notice to the employees
"Of course , "the Board may not, either directly or indirectly, compel
concessions or otherwise sit in judgment on the substantive terms of
collective bargaining agreements " N L R B v American National
Insurance Co . 343 U S 395, 404 However , good faith or its lack is a
question of fact as to state of mind, and positions taken at the bargaining
table , considered in the context of the whole case , are manifestations of the
state of mind with which negotiations are conducted NLRB v
Insurance Agents' International Union , 361 U S 477, 498-499, N L R B
v Reed & Prince Mfg Co, 205 F 2d 131, 139-140 (C A 1), cert denied
346 U S 887, N L R B v National Shoes, Inc. 208 F 2d 688, 691-692
(C A 2)
"In presenting this proposed contract on December 19, 1966, more than
2 months after receiving the Union's contract proposal, the Company
ignored agreements reached at the November 28 negotiations on the
Union ' s proposed contract
FLORIDA MACHINE & FOUNDRY CO.
curtailed matters subject to the grievance procedure.
Accordingly , the Company as a practical matter was
insisting that the Union virtually surrender its right to
strike without the usual quid pro quo of compulsory
arbitration of grievances Textile Workers Union v.
Lincoln Mills, 353 U . S 448 , 455, Texas Coca-Cola
Bottling Company , 146 NLRB 420, 429, enfd . 365 F 2d
321 (C.A 5)
The Company contends that its good-faith bargaining is
demonstrated by its not taking "a firm hard attitude on
every single item" and by its making of " several major
concessions to the Union " on seniority , a no-strike clause,
and wages On seniority , the Union proposed plantwide
seniority and subsequently agreed to departmental
seniority The Company never deviated from its initial
position that seniority be limited to job classifications
within a department and ultimately insisted on its own
seniority proposal, rejecting a revised union proposal as
"just too complicated ." As to wages , the Company
initially rejected the Union ' s wage demands in their
entirety on the ground that its wage rates were equal to or
better than those in the Jacksonville area Allegedly based
on a new area survey, the Company on January 6, 1967,
offered to increase the wages of several skilled job
classifications to keep them in line with rates for
comparable classifications in the area and, on January 25,
it offered to increase shift differentials by 2 cents and to
give a general wage increase of 8 cents The Company
thereafter refused to supply the Union with area wage
survey data . After the strike, on October 2, 1967, it
unilaterally put its proposed wage increases into effect
allegedly because it was at a "competitive disadvantage in
the local labor market" and was not satisfied with "the
caliber of applicants "" On August 7, 1967, after the
Union called off the strike , the Company agreed to a
change in wording of its no-strike clause so that the
Union would not be liable for unauthorized strikes. The
Company, however , never retreated from its insistence
that the Union accept far - reaching limitations on its right
to strike together with voluntary arbitration of grievances,
and rejected a union proposal to leave both no-strike and
arbitration provisions out of the contract.
Under all the circumstances , I find that the Company
made no meaningful concessions on any major issue and
that its wage offers and other concessions made "here and
there" amounted to no more than "surface bargaining"
and were part of "a purposeful strategy to make
bargaining futile or fail " N L R B v Herman Sausage
Co , 275 F 2d 229, 23 1-232 ( C A 5) 1 conclude that the
Company violated Section 8 (a)(5) and (1) of the Act by
refusing to bargain in good faith with the Union
I also find that the Company further violated Section
8(a)(5) of the Act by refusing to comply with the Union's
requests for area wage survey data ," and by unilaterally
increasing wages on October 2, 1967 2"
"About a month before the wage increase , the Company removed a
notice from the bulletin board stating that it would be "unlawful" to give
wage increases
"This matter was fully litigated at the hearing and is within the scope of
the complaint
"I find nothing improper in the Company's refusal to supply the Union
with the names, classifications, and wages paid to employees after the
strike began Attorney Bowden emplained that the Company was hesitant
to supply the names of employees because of the "large number of instance
involving violations and intimidation by strikers against employees
working" and offered to supply information on the wages paid to any
strike replacement believed by the Union to be paid more than was the
replaced striker CF W L McKnight , d/b/a Webster Outdoor
Advertising Company, 170 NLRB No 144.
2. The refusal to reinstate strikers
1163
As the strike which began on the night of February 28,
1967, is attributable to the Company's failure to bargain
in good faith," the strikers under settled law were entitled
to reinstatement upon application notwithstanding their
having been replaced The Company therefore violated
Section 8(a)(3) and (1) of the Act by its purported
replacement and discharge of virtually all strikers on
March 16 and 17, 1967," and by its refusal to reinstate
strikers to their former jobs upon their individual
application or upon the Union's application of July 10,
1967, in their behalf r'
3 Prolongation of the strike
The General Counsel contends that even if the strike
started as an economic one, the Company's discharge of
the strikers, promises of wage increases to nonstrikers,
and illegal refusal to supply the Union with area wage
surveys and data concerning employment during the
strike, converted the strike into an unfair labor practice
strike Plant Superintendent George Peacock's promises of
wage increases to a few nonstrikers on the evening of
February 28, 1967, tended to interfere with their statutory
right to join the strike and hence were violative of Section
8(a)(1) of the Act," and I have found the refusal to
furnish area wage survey information to the Union after
the strike began violative of Section 8(a)(5) of the Act
Although these unfair labor practices bear upon the
Company's state of mind during the bargaining
negotiations, I see no connection between them and the
duration of the strike The promise to a few nonstrikers of
wage increases well below those sought by the Union
would hardly tend to prolong the strike, nor do I see any
such impact in the circumstances of this case stemming
from the Company's failure to comply with the Union's
requests for its area wage surveys
Assuming an economic strike, any striker was entitled
to reinstatement to his job without loss of seniority or
other rights and privileges, as distinguished from
nondiscriminatory consideration for new employment,
only if his job was vacant when he first applied for
reinstatement N L.R B v. Fleetwood Trailer Co , 389
U S 375, Union Bus Terminal of Dallas, Inc, 98 NLRB
"Billups Western Petroleum Company, 169 NLRB No 147
"Cincinnati Cordage and Paper Co, 141 NLRB 72, 75-76
"The Union' s telegram recited that it was "the Union's official notice
that all strikers hereby request to return to work " I find without merit the
Company' s contention that the telegram did not qualify as an
unconditional offer to return to work because it also recited that the Union
had directed the strikers "to return to work as soon as possible " Unlike
Ozark Dam Constructors , 99 NLRB 1031, 1038-1041, the telegram
requests reinstatement to their old jobs of all strikers and the record
warrants no finding that the parties had an understanding that the strikers
were to make individual applications for reinstatement Such individual
applications would have been futile as shown by the Company 's discharge
of strikers on March 16 and 17, 1967, and its insistence before and after
receiving the Union 's telegram that returning strikers apply for new
employment N L R B v Valley Die Cast Corporation , 303 F 2d 64, 65-67
(C A 6)
"Paragraph 12 of the complaint attributed this conduct to the
Company's "officers, agents and representatives , more particularly Vice
President Thomas Peacock " As the matter was fully litigated , I do not
consider the variance between complaint and proof a bar to an unfair labor
practice finding Accordingly, the Company' s motion to dismiss paragraph
12 is denied
1 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
458; see Bartlett Collins Co , 110 NLRB 395, 398 The
Company's letters of March 16 and 17, 1967, notifying
strikers that they had been permanently replaced and were
terminated, followed prior refusals to reinstate strikers
seeking to return to work and served notice upon the
strikers that they could return to work, regardless of
vacancies that might arise, only as new employees The
letters were sent out at a time when the Company was
experiencing a considerable turnover in personnel It
appears, however, that the Company was successful in
obtaining a steady flow of applicants for employment. In
these circumstances, the letters, albeit based on a
mistaken view of the law that hiring of a "permanent"
replacement terminates an economic striker's employment
status,SS only confirmed what the strikers must have
already known that the Company had substantially
succeeded in filling their jobs See and compare John W
Thomas Co., 111 NLRB 226
I find that the Company did not engage in conduct
during the strike which prolonged the strike 26
CONCLUSIONS OF LAW
I The Company violated Section 8(a)(5) and (1) of the
Act by failing to bargain in good faith with the Union on
and after November 28, 1966, as the exclusive bargaining
representative of the employees in the following
appropriate bargaining unit All production and
maintenance employees, including truckdrivers and
warehousemen, employed by the Company at
Jacksonville, Florida, but excluding office clerical
employees, draftsmen, professional employees, guards and
supervisors as defined in the Act
2 The Company violated Section 8(a)(5) and (1) of the
Act by refusing to furnish the Union with copies of its
area wage surveys, and by unilaterally increasing wage
rates on October 2, 1967
3 The strike which began on February 28, 1967, was
caused by the Company's failure to bargain in good faith
with the Union
4. The Company violated Section 8(a)(3) and (I) of the
Act by its purported replacement and discharge of unfair
labor practice strikers, and by failing or refusing to
reinstate the strikers listed in the attached Appendix A
upon their individual applications to return to work or
upon the Union's request of July 10, 1967
5 The Company violated Section 8(a)(1) of the Act by
promising wage increases to nonstrikers
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
"Section 2 ( 3) of the Act provides that the term "employee " includes
"any individual whose work has ceased as a consequence of, or in
connection with, any current dispute and who has not obtained any
other regular and substantially equivalent employment " See
Fleetwood Trailer Co. supra
"The record shows that a crane operator job was open when striker
Johnnie Snead sought to return to work on March 13, 1967 Snead would
be entitled to reinstatement and backpay from that date, even assuming
that he was an economic striker Similar findings are not warranted with
respect to strikers J E Sarrells, Melvin Ponce , Raymond Miller, and
Ralph Hodges, who sought to return to work on March 15, 1967, Carl
Hillyard who sought to return later in March, or George Loznicka. who
asked for work on May 30 Although work was available for them, the
record does not establish that their former jobs had been vacated by their
replacements when they sought to return to work
THE REMEDY
Having found that the Company engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act
It has been found that the Company discriminatorily
refused to reinstate the employees listed in the attached
Appendix A I shall therefore recommend that the
Company offer them immediate and full reinstatement to
their former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges,
dismissing if necessary all persons employed by
Respondent after February 28, 1967 If there is not then
sufficient work available for the remaining employees
including those offered reinstatement, all available
positions shall be distributed among them without
discrimination because of their union activity or
sympathy, in accordance with such system of seniority or
other nondiscriminatory practice heretofore applied by the
Company in the conduct of its business All such
employees for whom jobs are not available after such
distribution shall be placed on a nondiscriminatory
preferential hiring list I shall further recommend that
Respondent make the strikers whole for any loss of pay
suffered because of the discrimination against them The
loss of pay under the order recommended shall be
computed in the manner set forth in F. W Woolworth
Company, 90 NLRB 289, with interest added thereto in
the manner set forth in Isis Plumbing & Heating Co , 138
NLRB 716
I shall further recommend that Respondent bargain
with the Union upon its request
As the unfair labor practices of Respondent found
herein go to the heart of the Act, it will be recommended
that Respondent cease and desist from infringing in any
manner upon the rights guaranteed in Section 7 of the
Act
RECOMMENDED ORDER
Upon the entire record in this case, and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, I recommend that the Respondent, Florida
Machine & Foundry Company and Fleco Corporation, its
officers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Promising employees wage increases to induce them
not to engage in protected strike activity.
(b) Discouraging membership in the Union, or any
other labor organization, by discriminatorily discharging
or refusing to reinstate employees because they engaged in
lawful strike activity, or in any other manner
discriminating in regard to hire or tenure of employment
or any term or condition of employment
(c) Refusing to bargain in good faith with the Union
(d) Refusing to furnish the Union with area wage
surveys or with other information relevant to the
intelligent performance of its functions as the
collective-bargaining representative of the employees in
the appropriate unit.
(e) Unilaterally effecting wage increases or other
changes in the conditions of employment of the employees
in the appropriate unit
(f) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights under
Section 7 of the Act
FLORIDA MACHINE & FOUNDRY CO.
2 Take the following affirmative action designed to
effectuate the policies of the Act
(a) Upon request, bargain collectively and in good faith
with the Union as the exclusive representative of its
employees in the appropriate unit, and embody in a signed
agreement any understanding reached
(b) Upon request, meet and bargain collectively with
the Union with promptness and frequency concerning the
negotiation of a contract
(c) Notify and consult the Union, and afford it an
opportunity to bargain collectively, with respect to any
changes in wages, or other terms and conditions of
employment before effectuating such changes
(d) Offer to all unfair labor practice strikers whose
names are listed in the attached Appendix A, immediate
and full reinstatement to their former or substantially
equivalent positions, and make each striker whole for any
loss of pay he may have suffered because of the
discrimination against him, in the manner set forth in the
section entitled "The Remedy "
(e) Notify the employees whose names are listed in the
attached Appendix A, if presently serving in the Armed
Forces of the United States, of the right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces
(f) 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
1165
records necessary or useful in computing the amount of
backpay due, as herein provided
(g) Post at its Jacksonville, Florida, plant, copies of the
attached notice marked "Appendix B "27 Copies of said
notice, on forms provided by the Regional Director for
Region 12, shall after being duly signed by Respondent,
be posted immediately upon receipt thereof, and be
maintained for 60 consecutive days, thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken to insure that said notices are not altered,
defaced, or covered by any other material
(h) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of receipt of this
Trial Examiner's Decision, what steps Respondent has
taken to comply herewith."
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of the Act not
specifically found herein
"1f this Recommended Order is adopted by the Board , the words "a
Decision and Order" shall be substituted for the words "the
Recommendations of a Trial Examiner " in the notice If the Board ' s Order
is enforced by a decree of a United States Court of Appeals, the notice
will be further amended by the substitution of the words "a Decree of the
United States Court of Appeals Enforcing an Order" for the words "a
Decision and Order "
"If this Recommended Order is adopted by the Board, this provision
shall be modified to read "Notify the Regional Director for Region 12, in
writing , within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith "
APPENDIX A
NAME
Snead, Johnnie Gates, Oscar Lee Howard, Lennie Perry, Albert Christie, Frank
Hendley, Arthur Shanks, James Perry, John Clark, Earnest Livingston, Edward
Brown, Alexander Ware, George Woodard, Joseph Mines, Malichi Jackson, Edward
Dove, John Johnson, Frankland Cross, Lorinza Seniors, Thomas Felton, Willie
Kelly, Curtis Mobley, Roy Rivers, Henry Lee Dasher, Joseph Wrights, Frank
Loyd, William Vason, James 0 Badger, John Smith, Ben Miller, Henry
Cannon, Melvin Shirah, Freddie Wyche, Joseph Cauldin, Edward Hunter, Jesse L
Ansley, Alfred Wyman, Earl C Cobb, Avery Smith, Walter L Fudge, Jay Lynn
Craddick, Nathan Driggers, Van Robinson, Joseph Bellamy, Wilber Purdy, Willie
Cummings, Kenneth Singleton, Joe Mobley, Alden Seymore, Grover Loznicka, George
Jenkins, Earnest Christie, Richard McCloud, Walter Lee Smith, Dan McCallister, Harold
Thomas, Ronald Gillyard, Sylvester Lovelace, Albert Jackson, McArthur Hildum, Roy
Newton, James Harrell, Willis Hunter, Theodore Thomas, George Handley, John W
Davis, William Newbill, James Jones, Roosevelt Collins, Willie L. Stokes, Ben
Reddick, Ora Crawford, Sam Martin, Charles Wright, Herbert Causey, John A
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Smith, Rufus Robinson, Charles Chance, Alex Allen, Andrew Shivar, John
Johnson, Richard Mays, Harrell E Bryant, Melvin Purdy, Albert Green, Edward
Robinson, Howard Ponce, Merlin Nelson, Pressie Felton, Lephus Peterson, Samuel
Harris, Alonzo Gamble, Willie Brown, Walter Lee Scantling, Frank Sapp, Robert Lee
Brown, Eddie Wesley, Glenn Williams, Terry Daniels, Benjamin Badger, George
Waters, Nazaree Terrell, Edward Walker, Odis Reid, Luther B Fountain, Alpheus
Booth, Adell Brown, Ronald Jackson, Willie Gordon, Thomas Gunder, Carther
Lewis, Thomas Jones, Freddie Lee Baxter, Samuel Wright, Willie B Ramsey, Willie
Sheppard, Edward Benge, Roy R Evans, Billie Harris, Bobby Mincey, Arthur
Benton, George Toske, Leroy McClary, Isaac B Moore, Nelson Henderson, Jimmy Lee
Clark, Horace Ricketson, Willie H King, Clement Hodges, Ralph Allen, Billy
Peoples, Dewery Thomas, Marion Young, James Sweat, Tenly Miller, Raymond
Mungin, Robert Fishburne, Elijah Reid, Jonathan Hillyard, Carl Waye, Eugene
Smith, Charlie Boggs, Willie Wright, Edward D Britt, Robert A Wells, John A
Withers, James C Mack, John E Taylor, Charles E Hartley, Owen Causey, Earl
Kohn, Edward Goodman, William H. McCanless, Franklin Laurendine, Bobby Tomlinson, Eugene
Wilson, Henry Lee Butler, Jimmie Tomlinson, John R Perkins, Ellis Kitchens, James
Mosley, Isiah Girtman, Vogie McManus, Charles Sariells, J E Collins, Robert
Daniels, David
APPENDIX B
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 in United
Steelworkers of America , AFL-CIO , or any other labor
organization of our employees , by refusing to reinstate
unfair labor practice strikers upon their unconditional
requests, or in any other manner discriminating in
regard to hire or tenure of employment or any term or
condition of employment
WE WILL NOT promise our employees wage increases
to induce them to refrain from supporting
union-sponsored strikes or other union activity
WE WILL NOT refuse to bargain collectively with the
Union by failing to meet for contract negotiations with
reasonable promptness and frequency
WE WILL NOT change wages , hours, or any term or
condition of employment of our employees in the
bargaining unit, without notifying, consulting, and
bargaining with the Union , as the exclusive
representative of our employees in the appropriate unit
set forth below.
WE WILL NOT refuse to furnish the Union, upon its
request, with our area wage surveys, or with any other
relevant data necessary and useful for the purposes of
collective bargaining
WE WILL NOT refuse to bargain in good faith with
the Union as the representative of our employees in the
appropriate unit.
WE WILL NOT in any other manner interfere with,
restrain , or coerce employees in the exercise of the right
to self-organization, to form labor organizations , to join
or assist the above-named or any other labor
organization , to bargain collectively through
representatives of their on choosing, and to engage in
any other activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
WE WILL, upon request, bargain collectively and in
good faith with United Steelworkers of America,
AFL-CIO, as the exclusive representative of our
employees in the appropriate unit, and embody in a
signed agreement any understanding reached
WE WILL, upon request , meet and bargain
collectively with the Union with promptness and
frequency concerning the negotiation of a contract
WE WILL notify and consult the Union, and afford
the Union an opportunity to bargain collectively, with
respect to any changes in wages, or other terms and
conditions of employment before effectuating such
changes
WE WILL offer to all unfair labor practice strikers
FLORIDA MACHINE & FOUNDRY CO.
whose names are listed in Appendix A attached to the
Trial Examiner's Decision, immediate and full
reinstatement to their former or substantially equivalent
positions, and make them whole for any loss of pay
they may have suffered as a result of the discrimination
against them
WE WILL notify any of the employees whose names
are listed in Appendix A to the Trial Examiner's
Decision, if presently serving in the Armed Forces of
the United States, of the right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces
The bargaining unit is.
All production and maintenance employees including
truckdrivers and warehousemen employed at the
1167
Jacksonville plant, but excluding office clerical
employees, draftsmen, professional employees,
guards, and supervisors as defined in the Act.
Dated By
FLORIDA MACHINE &
FOUNDRY COMPANY AND
FLECO CORPORATION
(Employer)
(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, Federal Office
Building, Room 706 500 Zack Street, Tampa, Florida
33602, Telephone 228-7711