Grand Lodge of Free and Accepted Masons, Masonic Home

National Labor Relations Board - Board Decisions

Nov 25, 1974

215 N.L.R.B. 75 (N.L.R.B. 1974)

GRAND LODGE OF FREE AND ACCEPTED MASONS, MASONIC HOME 75
Grand Lodge of Free and Accepted Masons, Masonic
Home and Local No. 1511 and Council No. 55,
American Federation of State , County and Munici-
pal Employees, AFL-CIO. Cases 7-CA-8158 and
7-CA-10030
November 25, 1974
DECISION AND ORDER
.,BY MEMBERS FANNING, JENKINS, AND PENELLO
On May 22, 1974, Administrative Law Judge
Thomas F. Maher issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief. The Charging Party filed a brief
in answer to Respondent's exceptions and in support of
the Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
Respondent, Grand Lodge of Free and Accepted Ma-
sons, Masonic Home, Alma, Michigan, it officers,
agents, successors, and assigns, shall take the action set
forth in the said recommended Order.
' The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544 ( 1950), enfd . 188 F 2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
DECISION
STATEMENT OF THE CASE
THOMAS F. MAHER, Administrative Law Judge- Upon
charges filed on August 22, 1970, in Case 7-CA-8158 and on
January 3, 1973, in Case 7-CA-10030, against Grand Lodge
of Free and Accepted Masons, Masonic Home, Respondent
herein and frequently referred to as "the Home," by Local
No. 1151 and Council No. 55, American Federation of State,
County and Municipal Employees, AFL-CIO, herein called
the Union, the Regional Director for Region 7 of the Na-
tional Labor Relations Board, herein called the Board, issued
a consolidated complaint on behalf of the General Counsel of
the Board, against the Respondent on July 25, 1973, alleging
violations of Section 8(a)(1), (3), and (5) of the National
Labor Relations Act, as amended (29 U.S.C., Sec. 151, et
seq.), herein called the Act In its duly filed answer, Respond-
ent, while admitting certain allegations of the complaint, de-
nied the Board's jurisdiction in the matter and the commis-
sion of any unfair labor practice. In addition to the
aforementioned documents there has been considerable
procedural activity in this matter. It is set forth in detail
hereafter in sec. III, A, infra.
Pursuant to notice a hearing was held before me on various
dates between October 16, 1973, and January 24, 1974, in
Ithaca, Michigan, and Detroit, Michigan, where all parties
were present, represented and afforded full opportunity to be
heard, to call, examine and cross-examine witnesses, to make
oral argument and file briefs Briefs were filed by all parties
on March 18, 1974.
Upon consideration of the entire record, including the
briefs filed with me, and specifically upon my observation of
each witness appearing before me and a consideration of his
demeanor,' I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I THE NATURE OF RESPONDENTS OPERATIONS
Grand Lodge of Free and Accepted Masons, Masonic
Home, Respondent herein, is a nonprofit fraternal charitable
organization incorporated in the State of Michigan in 1926.
It owns and operates a home for the aged which also includes
a nursing home and a hospital providing basic care, intensive
care, and intermediate care to its residents and patients who
are members of the fraternal organization or members of their
immediate families. On an annual basis, during the 1970
period involved in this proceeding, Respondent purchased in
excess of $50,000 worth of goods and materials, which goods
and materials are either sent directly to Respondent's facility
from outside the State of Michigan or are purchased from
companies in Michigan who in turn directly purchase such
goods and receive them from outside the State of Michigan.
During the same 1970 period Respondent received gross
revenues in excess of $100,000.2
It is Respondent's contention that by the provisions of
Section 2(2) of the Act it is exempt from the jurisdiction of
the Board, it being a nonprofit hospital.
There is no dispute that Respondent operates a nursing
home and a home for the aged. This is the subject of stipula-
tion and was amplified by the testimony of Norman Ryburn,
administrator of the Home. Whether it operates a hospital in
conjunction with its facility is another matter. At the hearing
held before me on October 16, 1973, Ryburn testified that the
Home was not licensed as a hospital under the State's provi-
sions for the licensing of hospitals. And with respect to the
facilities available at the Home in this area Ryburn testified
that there was no major operating room but a facility for
minor operations such as suturing cuts, tending bruises, and
checking broken skin. Such operations as those for appendici-
' Cf Bishop and Malco, Inc., d/b/a Walker's, 159 NLRB 1159, 1160
(1966).
2 The foregoing facts were the result of a stipulation between the parties
215 NLRB No. 24
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tis and for the pinning of broken hips were not handled at the
Home but instead, by an existing transfer agreement, the
patient was transferred to the Gratiot County Hospital, si-
tuated adjacent to the Home but not in any way associated
with it. The Home has no X-ray facilities, relying on Gratiot
for such services, but it does have facilities for taking elec-
trocardiograms. Physical therapy facilities are provided for
the patients as are therapeutic and rehabilitation services.
There is a staff of five registered nurses and a number of
licensed practical nurses in addition to the usual staff of
workers and orderlies. The medical staff consists of 1 full-
time physician, interns from a medical school in the State,
and 30 outside physicians available on call to treat specific
individual patients. Technically, Ryburn testified, all the doc-
tors in Gratiot County Hospital are on Home's staff.
At a subsequent hearing before me in this matter in Janu-
ary 1974 Respondent adduced further testimony on the sub-
ject of the nature of its facility, this time to establish that since
the October 1973 hearing it had filed application for a hospi-
tal license. This so-called hospital section for which a license
is presently being sought comprises 30 beds of Home's total
capacity of 409.
Because certain of the activity involved in this proceeding
occurred, at a time when there was considerable question
concerning the Board's jurisdiction over facilities such as
Respondent's, it is to be noted that at the outset of 1967 the
Board , in' University Nursing Home, Inc., 168 NLRB 263
(1967), decided to assert its jurisdiction over proprietary as
distinguished from nonprofit nursing homes and related
facilities which provide skilled nursing health care and con-
valescent services where the employer received gross reve-
nues in excess of $100,000 per year. Thereafter in Drexel
Home, Inc., 182 NLRB 1045 (1970), the Board extended its
jurisdictional coverage to nonprofit nursing homes and
related health care facilities. In that case, as in the instant one,
the employer sought to characterize itself as something other
than a home for the aged, citing the fact that it provided
health care facilities and performed supplementary hospital
functions. Thus the Board, interpreting its early decision in
University Nursing (supra), stated (182 NLRB at 1046):
A reading of University Nursing, including both au-
thoritative sources and the statistics cited therein, clearly
shows, contrary to the Employer, that our conclusions
therein were predicated on considerations which extend
to and encompassed "proprietary nursing homes and
related facilities . . . in this health-care field," and that,
in addition to nursing homes, jurisdiction also was as-
serted over such "related facilities." (Emphasis sup-
plied.) Without belaboring the point, we note for clarifi-
cation purposes that a home for the aged is such a
"related facility" within the authoritative, medical, and
officially recognized meaning of the all-inclusive term
"nursing home and related facilities." Moreover, the ti-
tle by which an institution may be designated does not
necessarily indicate its true function or clearly describe
its operation. The present Employer, for example, is
ostensibly a "home for the aged." [Footnote omitted.]
Nor is it of consequence that Respondent's facility may, in
fact, have a separate facility, small though it may be, which
is designated as a hospital facility, and for which a hospital
license has recently been sought. A review of the factual
description of this unit discloses that it is not intended to be
a substitute for the nearby Gratiot County Hospital, that it
lacks many of the basic essentials of a usual hospital, such as
a major operating room, X-ray equipment, and testing facili-
ties. This unit is admittedly coordinated with the rest of the
Home, has the same director, has an interchange of profes-
sional and custodial staffs, and utilizes the same physical
plant and maintenance facilities. Under such circumstances
even if, contrary to the facts, this were to be considered a
hospital and not an extended care facility of the nursing
home, there is such a high degree of functional and opera-
tional integration between the so-called hospital unit and the
rest of the Home and health care facility as to make it a part
of the integral operation. So the Board held in Parkvue Medi-
cal Center and General Hospital, 183 NLRB 559 (1970), a
case with features of integration similar to those herein. Upon
all of the foregoing therefore, I conclude and find Respondent
to be an employer engaged in commerce within the meaning
of the Act.
II THE LABOR ORGANIZATIONS INVOLVED
Local No. 1511 and Council No. 35, American Federation
of State , County and Municipal Employees , AFL-CIO, the
Charging Parties herein , and collectively referred to hereafter
as the Union , are admitted to be and I accordingly conclude
and find them to be labor organizations within the meaning
of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. The Procedural Sequence of the Case
Respondent and the Union were parties to a collective-
bargaining agreement which expired on December 31, 1969.
Negotiations for a new contract ensued during late 1969 and
early 1970 but proved unsuccessful. Accordingly the em-
ployees went on strike in support of their Union bargaining
position for a new contract on February 5, 1970. Thereafter,
on February 26, the Union filed unfair labor practice charges
against the Respondent with the Board in Case
7-CA-7768, and thereafter on February 16, withdrew these
charges, it appearing that at the time Respondent was not
deemed to be an employer over whom the Board was pre-
sently asserting its jurisdiction. At the same time refusal to
bargain charges were filed with the Michigan Empk yment
Relations Commission, referred to herein as MERC. Then,
on April 21, Respondent filed a charge with MERC against
the Union alleging that the strike was illegal under Michigan
Law. At the hearing held by MERC in both cases MERC, on
motion by the Union, dismissed both cases on the ground of
lack of jurisdiction; charges were thereafter filed with the
Board against' Respondent on August 21, 1970, in
7-CA-8158, one of the instant consolidated cases, and on
August 27, 1970, a charge was filed against the Union in Case
7-CB-2241. The Regional Director refused to issue a com-
plaint in this latter matter and upon appeal to the General
Counsel by the Respondent herein the Regional Director's
refusal was upheld . Meanwhile on November 16, 1970, the
complaint issued in -Case 7-CA-8158 . Respondent and
GRAND LODGE OF FREE AND ACCEPTED MASONS, MASONIC HOME
Union finally executed a contract on December 1, 1970,
and the strike officially ended on December 5. At this
point there was still an unresolved question relating to the
return to work of approximately 82 strikers. These, it
appears, were the subject matter, in part, of the complaint
previously issued on November 16. A considerable por-
tion of that case, which is actually part of the consoli-
dated instant proceeding , was taken to arbitration.
This particular phase is still in some form of suspended
animation awaiting an outcome of pending appeals liti-
gation with respect to the arbitration awards. Nothing in-
volved in that arbitration, however, is involved here.
There is no contention by any party that the arbitration
was anything but regular on its face and not in any way
"repugnant to purposes and policies of the Act."'
Subsequent legal proceedings involving this subject matter
must be noted here. A charge in Case 7-CA-8977 alleging
discriminatory failure to reinstate strikers was filed against
Respondent on September 21, 1971. This was thereafter dis-
missed by the Regional Director. Meanwhile, on October 29,
1971, Respondent filed a representation petition for an elec-
tion in Case 7-RM-822, questioning the Union's majority
status; and on December 14, 1972, a representation petition
was filed by an employee of Respondent in Case
7-RD-1073. Both petitions were held in abeyance pending
the outcome of the deferred unfair labor practice proceedings.
On January 31, 1973, another unfair labor practice charge
was filed, Case 7-CA-10030, by the Union, this time alleging
Respondent's refusal to bargain. After dismissal by the Re-
gional Director and a reversal of his dismissal on appeal by
the General Counsel an amended complaint was issued on
July 25, 1973. This amended complaint, by direction of the
General Counsel, incorporated the charges in Case
7-CA-8158, issued on November 16, 1970, and as well as
Case 7-CA-10030. It is this amended consolidated complaint
upon which this case proceeds.
B. The Issues
As described in brief summary above it is obvious that this
case involves a spate of litigation. On closer scrutiny it would
appear that all of this legal activity has been advantageous to
everyone except the individuals in whose behalf it was in-
stituted, the employees-a case spawned in an aura of juris-
dictional uncertainty and unduly prolonged by a general
reluctance to come to final grips with this jurisdictional issue.
It has become a vehicle whereby the Respondent and Union
have succeeded in building such a morass of legal obfuscation
that both the forest and the trees are frequently out of sight.
By the diligence of counsel for the General Counsel, however,
the basic issues have been effectively preserved.
Simply stated the issues presented here are (a) whether a
strike, economic in its inception, was converted to an unfair
labor practice strike by the imposition of illegal conditions to
the signing of a collective agreement, namely, the require-
ment that the contract be for members only, and that the
Union waive its right to represent or grieve in behalf of em-
ployees whom the Respondent would discipline for alleged
strike misconduct; (b) whether the strike itself was illegal as
not being in conformity with Section 8(d) of the Act; (c)
77
whether upon the conclusion of the strike the strikers were
entitled to recall in the face of Respondent's allegations of
strike misconduct; and (d) whether there could be a reasona-
ble doubt that the Union had lost its majority thus relieving
Respondent of its obligation to bargain.
C. Relevant Facts
1. Contract negotiations
As previously noted , a contract between Respondent and
the Union expired on December 31 , 1969. It was extended in
writing for 30 days and this extension expired on February
1, 1970. Negotiations for the new contract continued in the
meantime and when no agreement had been reached by Feb-
ruary 5, 1970, the Union called a strike . This strike, admit-
tedly instituted in support of the Union 's bargaining position,
continued throughout most of 1970 , while negotiations also
continued , with the assistance of mediators associated with
MERC. An early effort has been made by the Union to secure
the services of State authorities , including MERC and the
governor's office, in the settlement of the dispute, the Board
not being deemed to have asserted jurisdiction over facilities
such as Respondent 's.` This took the form of a letter to
MERC, dated January 6, 1970, stating as follows:
This is to advise you that Michigan Council #55,
AFSCME, AFL-CIO, representative of Local # 1511,
Michigan Masonic Home Employees , requests the inter-
vention of the Michigan Employment Relations Com-
mission in a dispute over the renegotiations of a collec-
tive bargaining agreement pursuant to and in accordance
with Section 9 and Sections 13 through 13(g) of the Act
176. The issues are over sick leave , work hours, time and
one-half, hospitalization , life insurance , holidays, clas-
sifications, wages , job descriptions , cost of living clause,
no sub-contracting clause , and successors clause.
After four meetings and some 34 hours of negotiations
on amendments and/or modifications on an agreement
which expired December 31, 1969, and the employer and
the Union had verbally agreed at the bargaining table to
extend the agreement for an additional 30 days , giving
the parties an opportunity to attempt to resolve the is-
sues or call on the services of the Michigan Employment
Relations Commission , pursuant to the Governor's Pa-
nel, the Union finds now that the employer representa-
tive, Mr. Ryburn , has refused to sign the letter of exten-
sion as submitted by the union until approved by the
Michigan Masonic Home 's Home Board of Control.
Very truly yours,
Robert Chittenden
Thereafter, on January 26, the Union sent to MERC and the
Board written notices of intent to strike, the notice to MERC
reading as follows:
3 Cf. Spielberg Manufacturing Company, 112 NLRB 1080 (1955 ). 4 Cf infra
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The following is a copy of a telegram sent to the National
Labor Relations Board, Detroit, on January 22, 1970.
"This is to advise you that after a series of negotiations
and submitting a letter to reopen 60 days prior to
December 31, 1969, and a contract extension until mid-
night, February 1, 1970, that an impasse has been
reached at the Michigan Masonic Home in Alma. This
is a non-profit organization with a gross income of over
$200,000, and there is a meeting set for negotiations
strictly for clarity on non-economics. The Union will
present the proposal to the membership on January 29,
1970, for a rejection and a strike vote, and to take legal
strike action in accordance with the National Labor Re-
lations Act of 10 days advance strike notice.
If this is not the proper procedure or time limits, please
advise immediately."
Very truly yours,
Robert Chittenden
As the strike progressed thereafter the patties continued to
meet on a reasonably regular basis; sometimes face-to-face, at
other times as two groups coordinated by a mediator. In
addition to economic issues, about which there was consider-
able diversion as indicated by the foregoing letters, the parties
continually discussed at their meetings the reinstatement of
striking employees who Respondent contended had been in-
volved in strike misconduct, but without ever identifying to
the union representatives who these particular individuals
actually were. Respondent, for its part, insisted that it was the
Union's obligation to identify these individuals among the
strikers, that it (the Union) knew who had engaged in the
misconduct, and that it should take appropriate action with
respect to them. The union representative, on the other hand,
claimed lack of knowledge as to who the alleged malfactors
were and repeatedly urged Respondent to provide it with any
list of names and misdeeds it possessed, as a basis for further
discussion or action, as the case might be. This dispute as to
the identity of strikers and the responsibility for their acts
continued unabated in each discussion held during the strike,
and became subjects of nearly every item of correspondence
passing between the parties.'
In the course of discussion economic issues were consid-
ered in great detail, and on July 22, 1970, Respondent pre-
sented to the Union's representative its contract proposal.
Included in this proposal was a clause which read as follows:
ARTICLE 1. RECOGNITION Employees covered. Pursuant to
and in accordance with all applicable provisions of Act
176 of the Public Acts of 1947, as amended, the Em-
ployer does hereby recognize the Union as the exclusive
5 The foregoing summarization of the issue relating to the identity of
strikers engaged in misconduct is a synthesis of the documents in evidence
and the testimony of Walter Oliver and Robert W Chittenden, the Union's
representatives at the hearing, and Norman Ryburn and Hicks Griffiths,
Respondent's administrator and attorney respectively, both of whom repre-
sented it at the meetings The names in question were finally divulged at the
hearing before me in the form of a list offered by Respondent and received
in evidence over the Union attorney's objection
representative for the purpose of collective bargaining in
respect to rates of pay, wages, hours of employment, and
other conditions of employment for the term of this
Agreement for all Employees of the Employer, who are
members of the Union, excluding Registered Nurses,
Licensed Practical Nurses, Graduate Practical Nurses
with certified State permits, irregular, temporary em-
ployees, Bookkeeper, Assistant Bookkeeper, Secretary
to Medical Director; Secretary to the Home Administra-
tor; Secretary to Director of Nursing and Supervisors;
State of Michigan approved, licensed and/or Pharmacy
and Laboratory technicians, plant guard and Supervi-
sors. [Emphasis supplied.]
This clause was a duplication of a clause in the recently
expired agreement between the parties, excepting only that
the phrase "who are members of the Union," was inserted
together with several corrections relating to certain profes-
sional employees to be excluded from coverage. It is Respon-
dent's contention, vigorously advanced at the hearing by tes-
timony and by a statement attributed to a mediator several
months after the submission of the proposal, that this was a
typographical error, the typist having erroneously substituted
the word "Union" for "unit." I am not disposed to accept this
explanation, for three reasons: (1) there is no evidence in the
record that the Union was ever advised that this was a typo-
graphical error, (2) the error did not become the subject of
consideration until raised by the mediator in the context of
a letter on October 8, 1970, addressed to the parties wherein
he referred to the clause as an illegal "members only" clause,
and (3) the substitution of the word "Union," with the capital
"U," for a "Unit" was a lower case "u" does not suggest a
reasonable typographical error. This is particularly so since
the whole phrase was an addition to the new contract and had
never appeared at all in the previous one. I accordingly con-
clude and find that upon all the evidence before me that
"members of the Union," as contained in the Respondent's
proposal, was not a typographical error, albeit, Respondent,
at a later date, readily agreed to the substitution of the words
"members of the unit."
The contract proposals submitted by Respondent was sub-
mitted to the employees on the following day, July 23, and
after fully considering it they voted to reject it. Respondent
was notified accordingly and the strike continued.
Significantly, on July 14, a week before the Respondent's
submission of its contract proposal, Respondent's attorney
and representative in the negotiations addressed the following
letter to Walter Oliver, the Union's representative:
This is to notify you that due to the length of the
strike, the Employer has had the opportunity to access
its staffing requirements and finds that it is over-staffed
among the following classifications: Nurse Aides, Or-
derlies, Clerk-Typist, Beauty Operators, Hallmaids,
Laundry Helpers, Kitchen Helpers and Dishwashers.
Please be advised that due to this finding, it will be
necessary to terminate the employment of some em-
ployees. The Employer stands willing to negotiate the
basis, procedures, and personnel who will be terminated
as a result of the reduction of personnel.
Please be further advised that it will be the Employer's
position that any employee who has engaged in any
GRAND LODGE OF FREE AND ACCEPTED MASONS, MASONIC HOME
violence, physical damage, vandalism, etc., will not be
reinstateable upon conclusion of the strike. Since the
Union has inside information as to who these persons
are, we shall expect that the Union present us with a list
of such names and would be willing to discuss their
situation.
Please communicate with me as to a date for negotia-
tions on the above items.
Very truly yours,
Griffiths & Griffiths
HICKS G GRIFFITHS
Oliver testified at the hearing as follows:
A. Yes, a part of the condition of any agreement that
was reached we would waive the right to represent those
that had been discharged, and again we tried to point out
just cause would only be borne through arbitration.
Q. Did Mr. Griffiths ever tell you personally face to
face or by telephone that the employer wanted this con-
dition?
A. Mr. Griffiths insisted personally, face to face, by
telephone and by written communications, he insisted
that certain employees were not reemployable, taking
the position first the union had a responsibility to give
those names to the employer, and I think the first figure
of ten was thrown to us. We asked if he had information,
we would investigate, perhaps, you know, some of them
we would choose not to represent but he did not give us
the names.
s s s s s
Q. (By Mr. Alexander) I think the question was did
Mr. Griffiths ever tell you personally or over the phone
or face to face that before there could be any agreement,
the union would have to give up its right to grieve any
question concerning reinstatement of the strikers?
A. That's correct, yes.
JUDGE MAHER What is correct?
Q. (By Mr. Alexander) Did he or didn'd he?
A. Face to face and by telephone, yes, Mr. Griffiths
asked us to give up the right to represent certain mem-
bers.
JUDGE MAHER Under what circumstances?
THE WITNESS By virtue, as I have indicated several
times, by virtue of those persons the Home felt was
guilty of strike misconduct, et cetera, and we knew not
how many or who.
Q. (By Mr. Alexander) Do you recall whether he
made that statement at the time you called him on the
phone?
A. Pardon?
Q. That phone call, where you called him after you
met with the membership, that phone call you testified
to previously?
A. Yes, he made the statement each time I talked to
him.
JUDGE MAHER Was this in conjunction with the sign-
mg of the contract?
79
THE WITNESS This was prior to signing the contract.
This has been the position they established-I think I
heard it the first time Mr. Griffiths, myself and Bill
Marshall present of the Michigan State AFL-CIO, my-
self and Fairburn Smith and Mr. Gnffiths was there, I
think the first time it was ever projected to us that we
not represent certain members of the Home felt were not
reemployable.
JUDGE MAHER What did this have to do with the
contract? Did it have anything to do with the contract
itself, the negotiations or was it independent of all of
this?
THE WITNESS It started on the basis of negotiations we
could not reach any fruitful discussion until we agreed
to that.
JUDGE MAHER Excuse me for taking this over, but I
want to get this straight myself. What do you mean you
could get no fruitful discussions?
THE WITNESS We could get no further? We had to
agree to that before we could discuss any economics,
contract settlement, et cetera.
JUDGE MAHER I would like to pursue this myself. You
were told you would get no economics until you agree
to this, yet there was presented to you a full-blown offer
on July 20th. Had Mr. Griffiths retreated from that
position at that time?
THE WITNESS The July 20th?
JUDGE MAHER That's the one.
THE WITNESS The July 22nd -
JUDGE MAHER That's the one, July 22nd, for members
only?
THE WITNESS For members only.
JUDGE MAHER I know exactly what it is, but you say
they would not get to any fruitful negotiations until you
made the agreement to cease representing certain of your
members.
THE WITNESS That's correct. He gave me that as a
proposal. When he gave it to me he in fact said but you
must understand that even if ratified by the members we
would have to have an understanding you will not repre-
sent employees of the Masonic Home that we feel is not
reemployable.
Attorney Griffiths, testifying before me, denied the state-
ments attributed to him by Oliver. He did testify that on the
occasion of submitting the Respondent's contract proposal he
asked Oliver if he had received his letter of July 14, quoted
above. On the following day, July 23, according to Griffiths,
Oliver telephoned him to advise that the employees had re-
jected the proposal. In its place Oliver proposed to Griffiths
that Respondent agree to the old contract with certain wage
and insurance modifications. Griffiths then informed him, he
testified, that, the Union's proposal would have to be submit-
ted to Respondent's Board and he again asked Oliver if he
had read the July 14 letter. Griffiths then testified:
Well, I said when the contract was completely nego-
tiated, and the strike was over, there would have to be
a procedure for the reinstatement of strikers, and I felt
that we should have discussions as to the procedure for
reinstatement of the strikers.
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Without finding it necessary at this point in my findings to
resolve the credibility as to the conflicts between Griffiths'
and Oliver's testimony in this area one finding is nevertheless
apparent. From the substance of Respondent's July 14 letter
to the Union, dealing as it does with the main subject of
discussion, reinstatement of strikers, and from Griffiths' tes-
timony, it is apparent that the reinstatement of strikers was
part and parcel of Respondent's contract proposal, despite
Griffiths testimonial effort to separate the two. Linking as he
did in those two conversations with Oliver the contract and
the Respondent's position of refusing the reinstatement, it is
a reasonable inference and I accordingly find that an agree-
ment to waive reinstatement was an unstated condition to
Respondent's July 22 contract proposal. This condition, ex-
pressed as it is in Respondent's version, and testified to as an
outstanding issue in all subsequent negotiations by Oliver,
remained until the close of the strike.
Documentary evidence submitted at the hearing contrib-
utes significant support to this finding I have made, quite
apart from testimony in various shades of contradiction.
There I shall reproduce below. On August 8, 1970, Oliver of
the Union addressed a telegram to Respondent in which he
noted the lack of progress in the previous day's mediation
session . He proposed, as he had on July 23, that the old
contract be accepted by Respondent with certain insurance,
wage and classification modifications and the Respondent
"withdraw its position with regard to persons they deem not
reemployable and allow those persons access to the final step
of the grievance procedure under the newly executed
contract."
In a reply dated August 24, Attorney Griffiths stated:
With reference to your proposal that the last step of
the Grievance Procedure be invoked for your members
participating in the acts of violence, vandalism, physical
damage, etc., against persons or property commencing
on and after the start of the illegal strike of February 5,
1970, be advised: (1) That your proposal pre-supposes
that the grievance procedure was in effect at the time of
the acts of misconduct; (2) that the numerous acts would
involve a multiplicity of grievance cases-which would
be extremely expensive, time-consuming, and cumber-
some, and (3) that the said grievance procedure could be
mis-used and abuse.
Again, we request that the Union present to us resig-
nations of those persons engaged in the acts of vandal-
ism, violence , physical damage, etc. The safety and well-
being of the persons who are residents at the home
(including patients at the hospital) have to be guaran-
teed. Whenever the quality of patient care is maliciously
impaired and the patients' welfare is so threatened, the
Governing Board is under duty to prevent recurrence of
such employee activity. For example, a striker who
would pour salt and sugar in the flour supply, or who
scrambled the medicine of the patients, should not be
employable under any circumstances. Such totally irre-
sponsible misconduct could have resulted in serious ail-
ments and terminal damage to many patients. For in-
stance, the consequences to a diabetic patient could have
been devastating. We cannot believe that the Union
seeks to continue to represent such persons! Thus, the
Union should accept its responsibilities to obtain their
resignations.
Be further advised that in addition to the persons
referred to in the above paragraphs, the Employer will
not be reinstating all strikers due to the Employer's re-
ductions in staff (within the bargaining unit). As set
forth previously (see my letter, addressed to you, dated
July 14, 1970), the Employer has found that it does not
need a staff of approximately 195 employees (in the
unit). As a result the total unit staff will be approxi-
mately 140. Since the re-instating cannot be construed to
be a layoff-recall situation, and the Agreement is not
applicable, the re-instatement of strikers shall be based
upon length of service and qualifications. The decisions
therein shall rest solely with the Employer and shall not
be covered by the Agreement, nor amenable to the griev-
ance procedure. Again, it is pointed out that this is sepa-
rate and distinct from the non-employment of the strik-
ers who engaged in violence, physical damage,
vandalism, etc.
Thus, to summarize, first: strikers who engaged in
violence, physical damage, vandalism, etc., shall not be
re-employed, and the Union should present the Em-
ployer with their resignations; and second: if the total
number of strikers seeking re-employment exceed the
number of vacancies available, they shall be re-instated
based upon their length of service and qualifications as
determined by the Employer.
To facilitate this matter, the Union should present a
list of re-employable strikers who seek re-instatement to
the Employer within 10 days of receipt of this letter.
If you have any questions, please do not hesitate to
contact me.
Very truly yours,
GRIFFITHS & GRIFFITHS
Hicks G. Griffiths
Thereafter, on November 11, 1970, there is another letter to
Oliver Griffiths addressed himself on Respondent's behalf to
the same subject matter:
In my July 14 and August 24, 1970 letters to you, I
brought to your attention the findings of over-staffing,
the inability to reinstate all strikers, the termination as
a result of the reduction of personnel, and the conclusion
that the strikers who engaged in acts of misconduct
would be the first to be determined unqualified and un-
reinstatable.
In these letters, I asked for the union's cooperation in
helping determine, first, the individuals who were en-
gaged in the misconduct and, second, reinstatement of
strikers thereafter based upon length of service and
qualifications. These points were also made during vari-
ous meetings with either you or Mr. Chittenden.
Your only proposal was an attempt to include it in the
collective bargaining agreement and have it covered by
the grievance procedure. As pointed out in my August
24 letter, this was wholly inadequate. Likewise, as
pointed out in my letter, the matter of reinstatement is
GRAND LODGE OF FREE AND ACCEPTED MASONS , MASONIC HOME 81
not and should not be included as part of the collective
bargaining agreement . In other words, the question of
reinstatement for strikers has nothing to do with
negotiations for the collective bargaining
agreement-they are separate and distinct and agree-
ment or disagreement of one has nothing to do with
agreement or disagreement of the other.
Since we have heard nothing further from you, we
have interpreted this to mean that you are leaving the
entire decision to the employer and no longer wish to
discuss it . Further , to facilitate the reinstatement of per-
sonnel when consummation of the collective bargaining
agreement is effectuated , please be advised of the follow-
ing:
1. The employer has finalized its study of its needs,
vacancies , and operations . The findings of such study
indicate that there will be need for twenty-one addi-
tional personnel.
2. The employer has reviewed the longevity , qualifica-
tions, background , abilities , conduct during the strike,
and other relevant factors and has prepared a list of
personnel who will be asked to return to work upon
termination of the illegal strike . The list of names is
attached hereto.
3. When the illegal strike is terminated , the personnel
listed on the attached sheet will be contacted by tele-
gram and given appropriate time in which to report
for work.
4. Barring unforeseen circumstances or developments,
no other personnel would be reinstated.
If there are any questions , please do not hesitate to
contact me.
Very truly yours,
GRIFFITHS & GRIFFITHS
Hicks G. Griffiths
At some point shortly thereafter the Union capitulated in
its demands, signed a contract and called a halt to the strike
on December 5. Immediately thereafter the Union sought to
process grievances on behalf of certain of the employees
whom Respondent had refused to take back either because of
their alleged misconduct or because of the reduction of the
staff. Respondent's reply to these submissions was contained
in a letter dated December 21, 1970, from Norman Ryburn,
Respondent's administrator, to the Union's chairman of the
unit:
The nine alleged grievances submitted to me on Decem-
ber 17 , 1970 are denied , because there is no violation of
any clause in the Agreement . The employees were not
laid off. The Union called an illegal strike. During the
duration of the strike , Management abolished jobs and
positions . Management negotiated with the Union on re-
turn of strikers and for the jobs and positions still vacant
at the end of the illegal strike. Since there was no layoff
or recall situation and no Agreement in effect , there is
none , there can be no grievance.
For these and other reasons not specifically set forth
herein , there are no grievances.
Retroactive pay for the time worked from January 1,
1970 to February 5, 1970 is being prepared and will be
mailed to the persons who are no longer employed. For
employees who have not already received the retroactive
pay, they, too, shall receive it as soon as practical.
Yours truly,
Norman L. Ryburn
Upon consideration of this additional undisputed evidence,
documentary in form , I restate my finding and conclusion
that the refusal to reinstate the strikers was a condition of
Respondent 's execution of the collective agreement and I
further find upon the documentary evidence relative to the
period immediately following the execution of the most re-
cent contract that Respondent implemented the condition it
was imposing by the strategem of refusing to consider the
grievance submitted in behalf of the unreinstated strikers. In
this respect I am aware , of course , that Respondent's ex-
pressed refusal in this regard is carefully stated in language
which would place the subject of the grievance outside the
framework of the contract . I have no hesitancy whatever in
reading all of the documentation together , as well as consider-
ing the relevant testimony in the record , and finding this to
be a legalistic effort without basis in logic.
2. The nature of the strike
On February 4, 1970 , the date preceding the strike, there
were 180 individuals employed at Respondent 's Home. Of
this number approximately 160 joined the strike , either join-
ing the picket line or absenting themselves altogether.
Another 20 remained at work , and during the period of the
strike between February 5 and December 5, approximately 20
other employees abandoned the strike and returned to work.
And when the strike ended on December 5, 82 of the 130
employees were deemed unemployable by Respondent and
were refused reinstatement . It is the reinstatement of these
particular individuals which comprises the basic issue of this
case.
It is Respondent 's contention that because of the miscon-
duct in which 82 of the strikers engaged in the strike is illegal
and the individuals accordingly not eligible for reemploy-
ment. Throughout the hearing constant reference was made
by Respondent 's counsel to the misconduct of these people,
and the record abounds with questions concerning it directed
to Respondent 's and General Counsel's witnesses . Thus it
appears that by way of establishing its condition for signing
of a contract Attorney Griffiths , at every meeting, requested
that the Union provide him and his client with a list of the
wrongdoers and that it take appropriate remedial action
against them . However , when asked by the Union officials to
identify the people , he refused . Nor was there ever any spe-
cific identification by Respondent of the strikers allegedly
involved until sometime in mid -October when Griffiths en-
trusted such a list to the mediator . The Board was equally
unadvised of the identity of these individuals , Norman Ry-
burn , the Homes administrator, testifying that a charge was
never filed against the Union alleging strike violence and
picket line misconduct.
0
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Coming down to the hearing before me. In the pleadings,
statements of counsel, the substance of interrogation of wit-
nesses there is constant reference to acts of violence. There
are references to mixing the medicines and dentures of pa-
tients, altercations with employees not on strike, slashing of
tires, a car blocking a driveway, damage to employees'
homes, and a variety of other acts. Similarly, there is in
evidence a copy of an injunction issued against the Union and
certain named individuals on July 22, by the circuit court for
Grotiot County, Michigan, restricting the number of pickets
on the picket line, directing the Home to respect the Union's
peaceful picket line, and enjoining all parties from harassing
any other party by specified acts of misconduct, and enjoining
the Union and its agents from parking cars on the Home's
property. In addition, there appears in the record an Order
dated May 25, 1971, finding the Union and its officers and
the same named individuals, in contempt of the injunction
and imposing a fine of $500 on the Union. Nowhere in either
document does there appear the name of any individual ac-
cused of specific misconduct. And indeed in the citation of
contempt the only indication of the nature of the misconduct
that is evident at all is a statement on the record by counsel
for the Union stating it to be a "violation of court order
relating to the number of pickets."
In the face of all of the foregoing accusations, many of
them generalizations by Respondent's witnesses most cer-
tainly not to be either denied or minimized, there has never
been any effort on Respondent's part to relate a specific act
of violence or misconduct to any specific individual striker,
with but one exception-Betty Wolfe was the owner of a car
deliberately parked across the driveway. Nor do I give cre-
dence to the contention that these individuals were not
known to the Respondent, a contention reiterated by Ad-
ministrator Ryburn as he recounted the types of misconduct
that have occurred. The fact is that in the final day of the
hearing of this matter Respondent introduced into evidence
a list, presumably the one it had given to the mediator on
September 29, 1970, on which was set forth the names of 41
strikers and opposite these names a catagory of misconduct
such as denture mixture, threats, auto damage, etc. Thus, for
the first time in this proceeding the names of the alleged
culprits was made known by Respondent, when in fact, their
identity had been known to it in late September 1970, if not
before.
Upon the ending of the strike on December 5, 1970, Re-
spondent accepted back 21 of the strikers, as specified in a
letter from Griffiths to the Union on November 11. In addi-
tion, according to Union Representative Chittenden, whom
I credit, three or four other individuals returned to work.
There remained, according to Union officials' best estimates,
82 strikers still to be reinstated but refused reinstatement by
Respondent in accord with its stated position.
D. The Refusal To Bargain
It is alleged in the complaint that by the Respondent's
response to a request for bargaining made in the fall of 1972
it engaged in an unlawful refusal to bargain.,
1. The appropriate unit for bargaining
There is no dispute as to the appropriateness of the bar-
gaining unit as set forth in the most recent contract between.
the parties. It is as follows:
All regular employees of the employer who work in
categories described as Hallmaid, Kitchen and Dining
room Helper, Laundry Helper, Night Watchman, Dish-
washer, Janitor, Kitchen Clerk, Nurse Aide, Orderlie,
Seamstress, and Occupational Therapy Aide, excluding
Registered Nurses, Licensed Practical Nurses, Graduate
Practical Nurses with certified State permits, irregular,
temporary, employees, Bookkeeper, Assistant Book-
keeper, Secretary to Medical Director, Secretary to the
Home Administrator, Secretary to the Director of Nurs-
ing and Supervisors, State of Michigan, approved, lic-
ensed and/or Pharmacy and Laboratory Technician,
Plant Guards and Supervisors.
I accordingly conclude and find the foregoing to constitute a
unit of employees appropriate for the purposes of bargaining.
2.,,The refusal to negotiate a new contract
In mid-October 1971 Union Representative Chittenden
wrote Administrator Ryburn requesting that negotiations be
commenced for a contract to replace the one that was to
expire at the end of the year. In response Ryburn sent a letter
to Chittenden, through Mediator Howlett, stating that they
were refusing to bargain and were filing a petition for an
election to resolve the good-faith doubt which it entertained
concerning the Union's majority status. This petition was
filed on October 29, 1971, in Case 7-RM-822. Several
months thereafter an election petition was filed by an em-
ployee in Case 7-RD-1073. Both petitions were held in abey-
ance by the Regional Director pending the determination of
the unfair labor practices alleged in the complaint in this
proceeding. By admission of Respondent in its answer it may
be stated as a fact that again on or about October 20, 1972,
the Union reiterated its request of Respondent that it com-
mence collective-bargaining negotiations in an effort to
negotiate a new contract and that in reply, on November 6,
1972, Respondent, through its attorney, informed the Union
that the question of whether Respondent would negotiate
with it could be resolved by the Union's cooperation in the
conduct of an election sought by the Respondent in Case
7-RM-822. Subsequently on November 6, 1972, the Union
addressed Respondent's attorney requesting that negotiations
commence at the earliest possible date. Respondent since that
date has failed to respond to the Union's request . In its an-
swer to the complaint in this respect Respondent contends
that due to the pendency of the representation petitions they
did not engage in negotiations with the Union because of its
expressed good-faith doubt of the Union's majority status.
E. Analysis and Conclusions
The focus of this matter is the status of the striking em-
ployees insofar as their respective rights to reinstatement
after the strike is concerned. And this, in turn, hinges upon
the nature of the strike, whether it is an economic strike or
GRAND LODGE OF FREE AND ACCEPTED MASONS, MASONIC HOME
an unfair labor practice strike, and upon the evaluation of the
conduct of individuals seeking reinstatement, and backpay. It
is axiomatic, of course, that economic strikers are entitled to
reinstatement so long as they have not been replaced,' or,
although replaced, if upon their availability for work there is
a job opening for which they are individually qualified.' It is
equally well established that strikers engaged in a strike in
protest of an employer's unfair labor practices or whose eco-
nomic strike has become converted to an unfair labor practice
strike by the subsequent commission of unfair labor practices,
"do not lose their status and are entitled to reinstatement
with backpay, even if replacement for them have been
made."8 Basic then to the determination of the status of the
employees is the nature. and status of the strike itself.,
The work stoppage which commenced among Respon-
dent's employees on February 5, 1970, was clearly in protest
of the failure to reach agreement on a new collective-bargain-
ing agreement. All other things being usual this would clearly
be a validly instituted economic strike. It is Respondent's
contention, however, that the strike was an illegal one from
its inception, thus depriving the strikers of such statutory
protection as is provided for participation in concerted activi-
ties for their mutual aid and protection. In support of its
contention Respondent cites the Union's failure to comply
with Section 8(d) of the Act, a statutory provision establish-
ing the legal criteria for the conduct of the strike in support
of negotiations for the renewal of an expiring collective
agreement.' Thus, it is contended, the Union has failed to
give timely notice to the Federal Mediation and Conciliation
Service and the state mediation service (MERC) and has
failed to continue the contract in full force and effect without
resort to a strike for 60 days after either the expiration of the
contract or giving of notice of the existence of dispute. This
failure on the Union's part, it is contended, establishes the
strike as an illegal one and deprives the strikers of the rein-
statement which they seek here.
6 Mastro Plastics Corporation , and French American Reeds Mfg. Co., Inc.
v. N.L.R.B., 350 U . S. 270 ( 1956).
1 N.L.R. B. v. The Laidlaw Corporation , 171 NLRB 1366, enfd . 414 F.2d
99 (C.A. 7, 1969), cert . denied 397 U.S. 920 ( 1970).
8 Mastro Plastics Corp. v . N.L.R.B., 350 U . S. 270, 278; N.L.R.B. v. Samuel
J. Kobritz, d/b/a Star Beef Company, 193 F.2d 8, 16-17 (C.A. 1).
9 Section 8 (d) of the Act as amended , provides , in part, as follows:
... where there is in effect a collective-bargaining contract covering
the employees in an industry affecting commerce, the duty to bargain
collectively shall also mean that no party to such contract shall termi-
nate or modify such contract, unless the party desiring such termination
or modification-
(1) serves a written notice upon the other party . . . of the proposed
termination or modification sixty days prior to the expiration date
thereof, .. .
(3) notifies the Federal Mediation and Conciliation Service within
thirty days after such notice of the existence of a dispute . . . and
(4) continues in full force and effect, without resorting to strike or
lockout, all the terms and conditions of the existing contract for a
period of sixty days after such notice is given or until the expiration date
of such contract, whichever occurs later:
a a a s
Any employee who engages in a strike within the sixty-day period
specified in this subsection shall lose his status as an employee of the
employer engaged in the particular labor dispute, for the purpose of
sections 8, 9, and 10 of this Act, as amended .. .
83
A review of the chronology of this matter discloses a num-
ber of periods of suspended animation . Looking to the cause
of these several interruptions in the normal processing of the
case it is apparent that they were caused (1) by uncertainties,
deliberations, and reevaluations in the area of the assertion of
the Board's jurisdiction over facilities such as Respondent's,
and (2) by a deferral of Case 7-CA-8977 to arbitration, a
proceeding still in the final appeals stage. Thus, it appears
that the Union on February 26, 1970, 10 days after filing its
original charge, withdrew it, when it became evident that the
Board was not then asserting jurisdiction over nonprofit nurs-
ing homes (supra). The matter was then transferred to the
State agency (MERC) and the matter proceeded there.
Thereafter the Board 's policy changed and again a charge
was filed with it, removing the subject matter to it from
MERC. While the foregoing is not intended to be a precise
legal description by me of what was occurring it is suffi-
ciently basic as to suggest that no one in authority had ar-
rived at any fixed and final determination of the manner in
which the dispute was to be resolved; whether it was, in
fact, a Federal case, or one for MERC. In the face, then,
of such obvious official vacillation in the determination of
the proper forum for the resolution of the dispute it would
be ridiculous to suggest that the Union at that very time
would nevertheless be expected to follow the precise terms
of Section 8(d). To so constrain the Union would be to
require of it a degree of precision and perspecacity not
displayed elsewhere in the processing of the case at any
time in its tortured progress . But in any event , consider-
ing the timing of the Board 's assertion of jurisdiction
over nonprofit old age or nursing homes,1° the retroactive
application of the Board's newly enunciated jurisdictional
standards cannot be presumed, retroactively, without weigh-
ing the "mischief' that would be created by such action."
In the absence of any showing that such retroactive applica-
tion was intended I conclude and find that it was not. I
accordingly reject the suggestion that Section 8(d) was of
controlling significance at the time the strike was instituted
and maintained, and I conclude and find that insofar as the
requirement of notice and refraining from a work stoppage
are concerned the Union's action was proper in every way,
and the strikers did not lose their employee status thereby.
In further support of its contention that the strike which
began on February 5, 1970, was an illegal one Respondent
relies upon the alleged misconduct of those involved as being
of such an intensity as to deprive them of the usual statutory
protection afforded such concerted activity and to deprive the
offending participants of the right to reinstatement. This is
commonly referred to as the Thayer doctrine." As a general
standard to be applied the following quotation from the deci-
sion in this case by the United States Court of Appeals for the
First Circuit is noteworthy (213 F.2d at 755-756):
If the pickets "restrained" or "coerced" other em-
ployees in the exercise of their rights under § 7 of Act,
and if union responsibility therefore could be demon-
strated, the picketing would constitute a union unfair
10 Drexel Homes, Inc., 182 NLRB 1045, was decided by the Board on June
2, 1970.
11 Security and Exchange Commission v. Chenery Corp., 332 U.S. 194.
12 N.LR.B. v. Thayer Company and H. N. Thayer Company, 213 F.2d 748
(C.A. 1), cert. denied 348 U.S. 883 (1954).
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor practice and therefore would not be a protected
concerted activity under §7. Nor would the same con-
duct by the picketing employees, even though not at-
tributable to the union, be protected.
This gives us a standard for determining what picket
line conduct falls outside the protection of § 7. Certainly
conduct which is not a union unfair labor practice may
still be unprotected. But with respect to the instant case,
if there was no "coercion" or "restraint" of non-striking
employees, the picketing should be considered 4 pro-
tected activity, for then the collective action would not
have been in violation of any other federal statute; nor
on the facts found by the Board was the conduct on the
picket line in breach of the pace and therefore enjoinable
by state law.
Thus our problem is considerably simplified. It is un-
disputed that those employees who wished to continue
working during the strike were able to do so.
The Board's decision in Herbert Bernstein, Alan Bernstein,
Laura Bernstein, a co-partnership d/b/a Laura Modes Com-
pany, 144 NLRB 1592 (1963), gave practical substance to the
general standard of evaluation. Thus, in a situation where a
union was seeking recognition and a contract and the em-
ployer reacted by threat, interrogation, and other acts in
violation of the Act, the union engaged in violence-and other
misconduct spelled out both in the Trial Examiner's and the
Board's decisions. Thus there were recounted an occasion
when the union business agent visited the employer together
with eight union members, not employees. After requesting
and being refused permission to talk to the employees the
union group proceeded to physically assault the employer;
and when his secretary attempted to call the police "she too
was 'pushed around."' A strike in protest of the employer's
unfair labor practices had meanwhile been called and while
in progress an identified employee-striker pointed out the
employer to four thugs who proceeded to beat him. Charges
against the union alleging the foregoing has violations of
Section 8(b)(1)(A) were filed and a subsequent settlement was
reached which included the union 's compliance with certain
structures, including the posting of a notice. The Board, pro-
ceeding to a consideration of the employer's misconduct in
the atmosphere of this violence commented unfavorably upon
the prospects of bargaining under such conditions. Of this
feature, as it relates to the instant case, we shall treat later
(infra). But what is significant is the Board's view, not of
bargaining, but of employee rights in the concerted activities.
Thus, it observed (144 NLRB at 1595) that
it does not follow that the Respondents were free to
threaten their employees with reprisals because of their
affiliation with or their adherence to the Union. We find
that by so doing during the meetings held by the Bern-
steins with the employees on the afternoon of August 14
and 15, Respondents further violated Section 8(a)(1) of
the Act. Nor were they justified in telling their em-
ployees, as they did, that they would "never" bargain
with the Union. For the Union's misconduct did not
extinguish the employees' rights to bargain through the
Union. We further find, accordingly, that by threatening
their employees with reprisals because of their affiliation
with the Union and by announcing to them that their
continued adherence to it would be a futile act as the
Respondents would never recognize the Union, Re-
spondents further violated Section 8(a)(1) of the Act.
Respondents' unlawful conduct in derogation of its
employees' Section 7 rights was clearly a contributing
cause of the strike which began on August 17. We shall
therefore adopt the Trial Examiner's recommendation
that the Respondents reinstate each of them-except
Lewis-upon request, to former or substantially equiva-
lent positions, and that it cease and desist from action in
derogation of their Section 7 rights.
Again in Allou Distributors, Inc., 201 NLRB 47 (1973), the
same dilemma arose. Here, in a consolidated proceeding
against both employer and union it was found that the em-
ployer had violated the Act by procuring the withdrawal of
a number of its employees from the union with which it had
a contract that was about to expire, by offering various bene-
fits to withdraw from the union, preparing and circulating a
petition among the employees disclaiming any continuing
desire to be represented by the union, and by causing a decer-
tification petition to be filed by the employees with the Board.
This the Board found to be an aggravated intrusion into the
rights of the employees. At no time , however, were employees
involved in picketing activity. Here, it was the union itself, as
distinct from any of its employee-members, who were in-
volved in the violence which followed and which gave rise to
the finding of a violation by it of Section 8(b)(1)(A) of the
Act. Thus, upon learning of the employer's duplicity-the
union's president, vice president, and four business represen-
tatives who "through the use of force, threats and general
intimatory conduct, 'pressured' the employees to withdraw
the decertification petition." This conduct, the Board con-
cluded, "created the impression that they were in control of
the premises," "frightened and terrorized the employees." In
consequence of all of this the Board, relying upon the Laura
Modes decision (supra), found the union's misconduct to be
of such a grave and serious nature as to disqualify it from
obtaining the bargaining rights to which the employer's mis-
conduct would, have otherwise entitled it. Nor would the
Board find any distinction in either the gravity of the matter
or remedy to be imposed depending upon whether the union
involved was one recognized for the past several years or one
that was seeking its first recognition, as was the case in Laura
Modes.
These are the cases upon which Respondent relies to sup-
port its contention that the alleged violence attending the
strike and picketing was such as to render the strike illegal.
In the first place there is a significant distinction to be made.
The issue of illegality raised in the instant case is in the
context of the rehiring of strikers, and not, as in each of the
cited cases, in the efficacy of a bargaining order. Indeed, in
Laura Modes, the argument of strike illegality as barring
strikers was rejected and the strikers were reinstated.
Basically the instant case differs from the cases upon which
Respondent relies (Thayer, Laura Modes and Allou) in the
evidence of violence upon which the Board's determination
is to be made. In each case the evidence was plentiful and the
findings explicit. In Thayer both the Court and the Board (99
NLRB 1122 at 1130 and 1133) outlined in detail the impro-
prieties on the picket line and the specific individual incidents
GRAND LODGE OF FREE AND ACCEPTED MASONS, MASONIC HOME
of violence and misconduct, such as kicking, weilding of iron
pipes, opening of car doors, et al. In Laura Modes the beating
of the employer and the "pushing around" of his secretary
was fully documented. And in Allou the union agent's vio-
lence was spelled out to find Section 8(b)(1)(A) violations.
Here, on the contrary, we have consistent reference to
misconduct, the switching of dentures, blocking of driveways,
auto damage, but no identification. Instead the Employer
asks the Union to punish the culprits, the Union asked the
Employer to identify them, ad infinitum, and in the final
hours of the hearing, on January 24, 1974, Respondent first
produced and offered into evidence a list of the alleged cul-
prits it has in its possession at least since September 1970.
Nowhere in the presentation of its defense evidence or in the
support of its allegations of misconduct was there produced
one specific incident by an identifiable employee or union
member, excepting only Betty Wolfe whose car was used on
one occasion to block a driveway.
This is not the evidence of aggravated violence and miscon-
duct upon which the findings were made in the cases relied
upon for support by Respondent. By comparison, the evi-
dence produced by Respondent palls in insignificance. This
is not to say that such events may well not have happened.
But substantial evidence of facts must be produced, and not
mere protestations and generalizations. Indeed the injunction
papers submitted here relating to the misconduct on the
picket line are but more of the same generalization. However
much evidence the learned judge of the Gratiot County court
received and considered to grant the injunction in the first
instance, and to impose a fine thereafter for contempt of it,
all that appears is that the number of the pickets was to be
limited, that the Union refrain from parking cars on Home
property, and that "All parties are enjoined from harassing
any other parties," the harassment being spelled out in forms
of such misconduct as puncturing tires, spreading glass, etc.
But again, nowhere is any one striker, picket, union member
or employee identified as a wrongdoer. Accordingly, upon
consideration of all of the foregoing, and upon comparison
with factual content of cases wherein the Board and the
courts have branded union and employee misconduct has so
aggravated as to justify some curtailment of the Board's usual
remedial action, I conclude and find that the picketing and
strike events, as set forth in this record, are completely devoid
of such specific factual detail as would place their concerted
activity in the same catagory as the concerted activities in the
cases relied upon. I therefore conclude and find that the strike
and the attendant picketing from February 5, 1970, to
December 5, 1970, has never lost the protection afforded such
concerted activity by Section 7 of the Act.
A review of the record and findings made on it (supra)
reveal that quite apart from the alleged and/or actual vio-
lence discussed previously, bargaining went on apace. Then,
on July 22, Respondent presented the Union its contract
proposal which included in it a provision limiting recognition
to members of the Union, as I have previously found. And at
the same time Respondent's attorney asked the Union's re-
presentative if he had read Respondent's letter of July 14 in
which was spelled out Respondent's refusal to reinstate strik-
ers. On the following day, when presented with the em-
ployees' rejection of its proposal, Respondent, by its attorney,
again referred to the July 14 letter, and it has consistently
85
maintained its position respecting reinstatement through the
remainder of the strike, and after the employees' capitulation.
I have already found and concluded this insistence by Re-
spondent upon a waiver of striker reinstatement to be a condi-
tion imposed by it to a signing of a contract. It is well estab-
lished that a "refusal to execute a complete contract, except
upon a condition outside the terms of the contract itself, is a
violation of Section 8(a)(5) of the Act."" And in reliance
upon this authority the Board has recently affirmed the con-
clusion that insistence upon inclusion in the contract an
agreement by a union not to punish nonstrikers was a condi-
tion precend'ent to the signing of the contract and a violation
of Section 8(a)(5) of the Act.14 It is significant that the very
conditions sought in the cited case is the converse of the
condition being sought by Respondent herein. Upon this au-
thority, therefore, I conclude and find Respondent, by impos-
ing as a condition precedent to the signing of a contract that
strikers not be reinstated, thereby refused to bargain in viola-
tion of Section 8(a)(5) of the Act.
Furthermore, upon consideration of all of the evidence, I
have found the inclusion of the "member of the Union" to
have been intentional. I am aware, of course, that Respondent
eventually withdrew this provision from its proposal but only
after its illegality was brought to Respondent's attention 2
months later. There is nothing in the record to suggest that
Respondent ever brought this alleged typographical error to
the Union's attention at any time.
A reading of the Board's most recent holding on the subject
of "members-only" contracts leaves me with more than a
suspicion that the Board's position has been consistently un-
clear. Thus in Don Mendenhall, Inc., 194 NLRB 1109 (1972),
the Board held (at 1110):
Although the Board has never ruled squarely on the
legality per se of a members-only contract , Max Factor,
118 NLRB 808, the insufficiency under the Act of such
recognition has been well established . For that reason we
dismiss the complaint insofar as it alleges violations of
Section 8(a)(5).
Turning now to Max Factor & Company, 118 NLRB 808
(1957), in an action where violations of Section 8(a)(5) were
not alleged, the Board there stated (at 815)
We are not now deciding whether a members-only con-
tract, standing apart from any other unlawful conduct
by the contracting parties, is per se a violation of the
statute.
In such a state of the law and considering the tenuous
circumstances upon which my findings concerning this al-
leged typographical error are based I am inclined to attach
no more consideration to the submitted clause recognizing
"members of the Union" than the Board attached to a con-
tract were the members-only feature was never questioned, as
in Don Mendenhall, Inc. I accordingly would recommend
that so much of the complaint as alleges the proffering of such
13 N..L.R B. v. Dalton Telephone Company, 187 F.2d 811, 813 (C A 5,
1951).
14 Independent Stave Co, 175 NLRB 156 See also the Herald Co., 181
NLRB 421, enfd . 444 F 2d 430 (C A 2), cert. denied 404 U S 990.
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a contract provision to be a violation of Section 8(a)(5) be
dismissed.
It now remains to be determined whether this was an eco-
nomic strike or an unfair labor practice strike; bearing in
mind that the former may be converted to the latter.15
Unquestionably the strike commenced as an economic pro-
test of a failure to reach an agreement, and so it continued
until mid-July 1970. But "[t]here is no question but that
where a strike is initially undertaken for economic reasons
but is prolonged by reason of the employer's intervening
unfair labor practices, the employer is in the same position it
would have been in had his unfair labor practice caused the
strike in the first place and is bound to reinstate all strikers
and discharge all those hired to replace them during the
strike "16
Having previously concluded and found the strike and
picketing to be concerted activity protected by the Act, and
having determined that midway through the strike Respond-
ent imposed the condition of waiver of striker reinstatement
rights and has steadfastly adhered to its position in that re-
spect, it remains to be determined what, if any, relationship
one finding bears to the other. Clearly the strike was an
economic one at its inception on February 5, 1970, as noted
above. But when the employees were presented the Respon-
dent's proposal on July 23, and were reminded then and
constantly thereafter that it must be linked to the Union's
agreement not to seek reinstatement of the strikers alleged to
have committed misconduct, the employees then had further
basis for its protest-Respondent's imposition of an unlawful
condition which I have found would constitute an unfair
labor practice. I have no doubt that the employees were fully
aware of the implications of this condition, of what it meant
to them, and of the fact of their continued strike included this
as a further subject of their protest. Employees were at all
times members of the bargaining committee which met with
Respondent's officials. Union Representatives Chittenden
and Oliver credibly testified that the committee was con-
stantly appraised of any developments which occurred at
other than bargaining sessions. Certainly it is reasonable to
infer, as I do, that the dominant issue and the one holding up
the very signing of the contract, Respondent's condition re-
specting reinstatement of strikers, was known to the striking
employees through their committee members and that this
was, after having been learned of on July 23, part and parcel
of their protest strike and picketing for the remainder of its
duration. I accordingly conclude and find that from July 23,
1970, until its cessation on or about December 5, 1970, the
work stoppage of Respondent's employees was an unfair la-
bor practice strike, as so denominated by the Board and the
Courts."
There remains for consideration the legitimacy of Respon-
dent's contention that it did not unlawfully refuse the bargain
when requested to do so on October 20, 1972, and thereafter
on November 6, and since. This it contends it did because it
IS N.L.R.B. v Kobritz, 193 F 2d 8, 16 (C A 1)
16 N.LR B. v Crosby Chemicals, Inc, 188 F 2d 91, 95 (C A 5), citing
NLR.B v Remington Rand, Inc., 130 F 2d 919 (CA 2) See also: Alba-
Waldersian, Inc. v NLRB, 404 F 2d 1370, 1371 (C A 4, 1968)
17 NL R B v Mastro Plastics Corporation and French American Reeds
Manufacturing Company, 345 F 2d 170 (C A 2, 1965), cert denied 384
U S 972 (1966), NLR B. v. Mackay Radio & Telegraph Co, 304 U S 333
entertained a good-faith doubt as to the Union's majority
status. What Respondent seeks by its claim is to reap the full
advantage of its previous conduct which I have already found
to be unlawful. If there have been defections from the Union,
and the record shows that there have been, and if there have
been employees hired subsequently who are not union mem-
bers, or do not wish union representation, and Respondent's
conduct makes this feeling quite understandable, then the loss
of union membership is attributable only to Respondent's
own illegal efforts. It is well settled beyond the need of cita-
tion of authority that a loss of majority under such circum-
stances is one that is attributable to the employer and may not
be relied upon by him to avoid further bargaining . I accord-
ingly conclude and find that the Union's majority status has
not been affected by Respondent's unlawful efforts and that
Respondent's refusal to bargain for such reason does not
constitute a good-faith doubt of the Union's majority status.
Under such circumstances I therefore conclude and find Re-
spondent's refusal on and after November 6, to bargain with
the Union as the majority representative of its employees is
a refusal to bargain in violation of Section 8(a)(5) of the Act.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III, above,
occurring in connection with Respondent's operations de-
scribed in section I, above, have a close, intimate, and sub-
stantial relationship to trade, traffic and commerce among
the several States, and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of commerce.
V THE REMEDY
I have found that Respondent by its conduct has refused
to bargain with the duly selected bargaining representative of
its employees, and it has failed and refused to reinstate em-
ployees striking in protest of Respondent's conduct after un-
conditional request made in their behalf on the cessation of
the strike, such conduct being in violation of Section 8(a)(1),
(3), and (5) of the Act. I shall accordingly recommend that
it cease and desist therefrom, and because of the gravity of
Respondent's conduct shall also recommend that it cease-
and-desist from infringing in any other manner upon the
rights of employees guaranteed by the Act. 18 I shall also
recommend certain affirmative action be taken in order to
effectuate the policies of the Act. I shall recommend that
Respondent be ordered to continue recognition of the Union
as the exclusive bargaining representative of its employees
and that it continue in full force and effect the most recent
collective agreement between it and the Union, that it con-
tinue bargaining collectively with the Union concerning the
terms and conditions of any new contract to supersede this
existing one," and that if agreement be reached that it em-
body such agreement in writing, and that in the meantime it
be ordered not to vary or abandon such benefits it may have
given its employees in the most recent contract executed
between the parties.'0
18 NLRB v Express Publishing Co, 312 U S 426, 437
19 Tidewater Express Lines, Inc, 142 NLRB 1111, 1122 (1963).
20 The Bassick Company, Spring Valley Division, a division of Stewart-
Warner Corporation, 127 NLRB 1552 (1960)
GRAND LODGE OF FREE AND ACCEPTED MASONS, MASONIC HOME 87
I shall recommend that with respect to the employees
whom Respondent has refused to reinstate because they en-
gaged in a strike in protest of its unlawful refusal to bargain,
that these employees be offered reinstatement to their former
or substantially equivalent positions, without prejudice to
seniority or any other rights and privileges, terminating if
necessary, any person hired since June 22, 1970, the date
upon which the strike of the employees became an unfair
labor practice strike, to make room for them ,21 and that
they be made whole from December 5, 1970, the date on
which the strike was abandoned by the Union and upon
which reinstatement was sought in their behalf.22 The back-
pay to which they arrentitled shall be computed in the cus-
tomary manner, with interest at 6 percent per annum.23 It
will also be recommended that Respondent post appropriate
notice of compliance with the Board's Order.
Upon the foregoing findings of fact; conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 14
Grand Lodge of Free and Accepted Masons, Masonic
Home, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain with Local No. 1511 and Council
No. 55, American Federation of State, County and Municipal
Employees, AFL-CIO, as the exclusive bargaining represen-
tative of its employees in the unit found to be appropriate for
the purposes of collective bargaining in the contract between
the parties most recently in force by imposing unlawful condi-
tions upon the execution of a collective agreement, specifi-
cally the refusal to rehire strikers, and by withdrawing its
recognition of the said Union.
(b) Discouraging membership in the aforesaid Union by
refusing reinstatement of employees striking in protest of its
unlawful conduct because they had engaged in such con-
certed activities and to be protected by the National Labor
Relations Act, as amended.
(c) In any other manner interfering with, restraining, or
coercing its employees or unlawfully discriminating against
them in the exercise by them of rights guaranteed by Section
7 of the Act.
2. Take the following affirmative action which it is found
will effectuate the policies of the Act:
(a) Offer reinstatement to all employees who were engaged
in a strike against it between February 5, 1970, and December
5, 1970, and whom it has since refused to reinstate, dismiss-
ing, if necessary, any individual hired since July 22, 1970.
21 Samuel Levine, doing business as Hock and Mandell Jewelers, 145
NLRB 435, 444 (1963)
22 N.LR.B v Mackay Radio & Telegraph Co, supra, Mastro Plastics
Corp v NLR B., supra.
23 F W Woolworth Co., 90 NLRB 289 (1950)
24 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order , and all objections thereto shall be
deemed waived for all purposes
(b) Make whole the aforesaid striking employees for the
period from December 5, 1970, until the date of Respondent's
offer of reinstatement, computation to be made in the manner
set forth in "The Remedy."
(c) Continue to recognize the aforesaid Union as the exclu-
sive bargaining representative of all employees in the bargain-
ing unit set forth in the contract between the parties most
recently in force.
(d) Upon request continue to bargain collectively with the
aforesaid Union concerning the wages and working condi-
tions of its employees, and, if an understanding is reached,
embody such understanding in a new signed agreement.
(e) Continue in full force and effect such benefits and
emoluments as it may have granted its employees during the
period of its unfair labor practices and the pendency of these
proceedings.
(f) Post at its Alma, Michigan, facility the notice attached
hereto as "Appendix."25 Copies of said notice on forms
provided by the Regional Director for Region 7, after being
duly signed by the Respondent, shall be posted immediately
upon receipt thereof, and be maintained for a period of 60
consecutive days in conspicuous places. Reasonable steps
shall be taken to insure that said notices are not altered,
defaced, or covered by any other material
(g) Notify the Regional Director for Region 7, in writing,
within 20 days from the receipt of this Decision, what steps
it has taken to comply therewith.
25 In the event the Board's Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Local No.
1511 and Council No. 55, American Federation of State,
County and Municipal Employees, AFL-CIO, by refus-
ing to reinstate you to your jobs for engaging in con-
certed activities protected by the National Labor Rela-
tions Act, as amended.
WE WILL continue to recognize the aforesaid labor or-
ganization as the exclusive bargaining representative of
our employees set forth in the contract between our-
selves and the Union most recently in force, and upon
its request, we will bargain collectively with it, and if we
reach an agreement we will put it in writing in the form
of a signed contract.
WE WILL offer reinstatement to all employees who en-
gaged in the strike against us between February 5, 1970,
and December 5, 1970, and whose reinstatement has
since been refused and, WE WILL dismiss, if necessary,
any individual hired since July 22, 1970.
WE WILL make whole striking employees for the
period from December 5, 1970, until the date upon
which we offer you reinstatement to your job.
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL continue in full force and effect any raises or
other benefits we have granted since February 5, 1970.
WE WILL NOT in any other manner interfere with, re-
strain , or coerce any of you or unlawfully discriminate
against any of you in the exercise of your rights guaran-
teed by the National Labor Relations Act.
All of you, our employees , are free to remain , or become,
to withdraw from or to refrain from becoming, members of
Local No. 1511 and Council No. 55, American Federation of
State, County and Municipal Employees, AFL-CIO, or any
other labor organization.
GRAND LODGE OF FREE AND ACCEPTED
MASONS, MASONIC HOME