Griffin Wheel Co.

National Labor Relations Board - Board Decisions

Apr 30, 1962

136 N.L.R.B. 1669 (N.L.R.B. 1962)

GRIFFIN PIPE DIV. OF GRIFFIN WHEEL COMPANY 1669
Griffin Pipe Division of Griffin Wheel Company and United Steel-
workers of America, AFL-CIO. Case No. 18-CA-19290. April
30, 1962
DECISION AND ORDER
On December 19, 1961, Trial Examiner Lloyd Buchanan issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the Intermediate
Report attached hereto. The Trial Examiner also found that the
Respondent had not engaged in certain other unfair labor practices
alleged in the complaint and recommended that such allegations be
dismissed. Thereafter, the Respondent, the Union, and the General
Counsel filed exceptions to the Intermediate Report together with
supporting briefs.'
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and, as it finds merit in some of the General Counsel's ex-
ceptions, adopts the findings, conclusions, and recommendations of
the Trial Examiner only to the extent consistent herewith.
A. Facts a
The Respondent and the Union, which had been certified on June 30,
1960, pursuant to a consent election, as the bargaining representative
,of the Respondent's employees, engaged in a long series of negotiating
meetings, but were unable to reach agreement. Finally, on July 5,
1961, the Union notified the Respondent that a strike had been called
for July 6. On that day, about 75 of the approximately 110 employees
went out on strike.
On July 9, the Respondent prepared a letter regarding a super-
seniority policy,' and, on July 11, distributed copies of this letter to
the nonstriking employees at their work stations in the forenoon, read
it to them at a meeting held later that day, and sent it by registered
The Respondent 's request for oral argument is hereby denied as the record, including
the exceptions and briefs , adequately presents the issues and the positions of the parties
2 The facts, which are set forth in greater detail than in the Intermediate Report, are
clearly established by the record as they are based upon uncontroverted testimony, ad-
missions , or unimpeached documentary evidence.
'The letter is set forth in Appendix A attached to the Intermediate Report.
136 NLRB No. 144.
1670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mail to all employees, including the strikers. On July 12, the Re-
spondent published this letter as an advertisement in a local news-
paper. On July 13, and the 3 succeeding days, the Respondent ran
another advertisement soliciting permanent replacements. The non-
striking employees were permitted by the Respondent to bid on the
jobs vacated by the strikers on July 13, and, on the following day, the
Respondent commenced hiring replacements, who began work at the
plant on July 17.
Meanwhile, on July 11, the Union notified the Federal Mediation
and Conciliation Service that it wished to resume negotiations. On
July 12, the parties met with a conciliator, who suggested that the
Union submit a new proposal. Present at the next meeting with the
conciliator , held on July 14, were International Representative Piper 4
and three union committeemen, Herschelman, the Respondent's officer
in charge of labor relations, and Beckman, the Respondent's attorney.
When Piper read the Union's new proposal, Herschelman's response
was: "I told Mr. Piper that his request and the economic items were
reasonable, if these had been proposed earlier during negotiations that
very possibly a contract could have been consummated. . . ." How-
ever, Herschelman went on to say that negotiations were now compli-
cated by the "new issues" raised by the Respondent's July 11 letter,
and Beckman indicated that nonstrikers and replacements might bring
lawsuits if the Respondent revoked their superseniority. Piper re-
plied that it was for the Respondent to solve these problems which
it had created. The Respondent's representatives then stated that they
would have to talk to the nonstrikers and replacements to see if
releases could be secured, and that they hoped something could be
worked out.' They attempted to reach the nonstrikers at the plant
to discuss the matter but were unable to do so. They also attempted
to reach the other two members of the Respondent's negotiating com-
mittee, Dean, manager of operations, and Marfold, vice president and
assistant general manager, to consider the Union's proposal, but they
had left the plant. The meeting concluded with the understanding
that Herschelman was to call Piper on the following day, Saturday,
July 15, and that the parties would meet again on Sunday, July 16.
On Saturday morning, the Respondent's representatives asked the
nonstrikers to vote by a show of hands on whether the Respondent
should be released from its superseniority commitments. Of the 33
employees voting, only 2 voted in the affirmative. At noon, Herschel-
* We find merit in the Union's exception to the Trial Examiner's characterization of
Piper as unreliable The Trial Examiner based this conclusion not on his observation
of Piper's demeanor but on his analysis of Piper's testimony with regard to the negotiating
meeting and the union meeting on July 16. Piper's testimony as to these matters, how-
ever, was largely corroborated by other witnesses of the General Counsel and by the
Respondent ' s witness , Herschelman.
6 The Trial Examiner, apparently inadvertently , indicates that this statement was made
at the meeting of July 16.
GRIFFIN PIPE DIV. OF GRIFFIN WHEEL COMPANY 1671
man called Piper and advised him that the Respondent was bound by
its commitments, but that he still wished to meet on the 16th to "work
out the other things." The meeting of July 16 opened with the Re-
spondent's presentation of its counterproposal. This included the
July 11 letter,6 which Herschelman handed to Piper, with the state-
ment that its provisions or like provisions "had to be incorporated in
the contract." Beckman again indicated that the Respondent was
bound by its commitments in this letter. Piper responded that he
would rather withdraw the Union from the plant or get out himself
than agree to the superseniority provisions. Due to the vehemence of
Piper's reaction, the conciliator suggested that the Respondent's rep-
resentatives go into another room. The record is not clear as to what
happened after the parties separated. Piper testified that after the
conciliator talked to the Respondent's representatives, the conciliator
advised the Union that the Respondent would not retreat from its
position respecting the July 11 letter. Herschelman testified that the
conciliator told the Respondent's representatives that the Union was
"very upset" about the July 11 letter; that Beckman questioned
whether the Union realized that the superseniority involved was lim-
ited to layoffs; that the conciliator then spoke to the union representa-
tives and, upon his return, Herschelman asked him "if there would be
any advantage to we going in and having further discussions on this
matter" to which he replied, "No, you had better stay in here because
they are very disturbed"; and that, as a result of that conversation,
the Respondent's representatives left.'
That night the Union held a membership meeting. After Piper
reported on the negotiations, superseniority was the main topic of
discussion, with various members expressing opposition to it. Gra-
ham, the Union's staff representative, testified that at the end of the
meeting he stated that, in his opinion, the membership was opposed to
the proposal, and questioned the members as to how many would be
on the picket line the following morning, whereupon "everybody in
the hall raised their hand."
On July 17, the Respondent sent a letter to its employees with re-
gard to the strike and the negotiations. As to the meetings of July 14
and 16, the letter stated :
At the [July 14] meeting, the International Representative of
the Union lowered his demands to a position that could have, with
some negotiations, probably resulted in a settlement before the
strike. However, it was pointed out that due to the strike, the
Company had been forced to make changes in its seniority policy
Other than the issue presented by this letter, the major differences remaining between
the parties were: (1) insurance coverage for employees' dependents, (2) the anniversary
date of the contract; and (3) the effective date of the wage increase
7 Herschelman also testified that at no time during the meeting did he offer to with-
draw any part of his counterproposal because he had "no opportunity" to do so
1672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and these changes would have to be considered by the Company
as there were commitments made to employees who remained at
work or returned to work before 7:00 A.M., on July 13, in order to
keep the plant open, all as set out in our letter of July 11th... .
The third meeting was held on Sunday, July 16th, in the hope
the strike could be settled so all of you could return to work on
Monday, July 17th.... However, negotiations failed primarily
because the Company refused to renege on its commitments to
employees who remained at work or returned to work before 7:00
A.M. on July 13th.... The conciliator recessed the meeting
indefinitely at this stage.
At a meeting on the evening of July 18, the union membership 8'
voted to end the strike. After the vote, Graham telephoned Dean,
manager of operations, and told him that the men had voted to end the
strike and would report to work the next morning, and asked what
time they should report. Dean told Graham to "have them come to
work about 7:30." Graham also mentioned that it might not be
possible to notify the strikers who were not at the meeting in time for
them to report the next morning; Dean indicated this could be worked
out. Thereafter, Graham sent Dean a telegraphic "night letter" which
stated : "Confirming our telephone conversation this pm. men will
return to work at time designated by you 7:30 am. This is pending
further negotiations and settlement of agreement."
After this telephone conversation with Graham, Dean arranged for
a meeting later that night with Marold and Beckman, at which they
determined what vacancies existed and drew up a memorandum ad-
dressed to "All striking employees seeking reinstatement," which
stated in pertinent part :
1. All striking employees who wish reinstatement are ask [sic]
to bid on vacant jobs.
2. Only after all striking employees seeking reinstatement have
had an opportunity to bid on open jobs can the Company evaluate
the bids for the purpose of making fair job assignments based on
skill and seniority in accordance with Griffin's usual method as
modified by policy letter to all employees dated July 11, 1961.
3. Inasmuch as Earl Graham, International Representative of
the United Steelworkers advised Mr. Dean that he might not be
able to contact all striking employees of their opportunity to
apply for reinstatement today, July 19, the Company will be
forced [sic] with the necessity to delay awarding bids until it is
certain that all striking employees have had an opportunity to,
apply for reinstatement....
s About 64 strikers were present at this meeting.
GRIFFIN PIPE DIV. OF GRIFFIN WHEEL COMPANY 1673
On the morning of July 19, when the strikers reported to work,
they were given a copy of this memorandum and advised that it was
necessary for them to bid on the available jobs. On July 19, 20, and 23,.
the Respondent ran an advertisement in a local newspaper which
stated :
All employees who have been out on strike and desire reinstate-
ment have an opportunity to bid on vacant jobs at the plant NOW,
in order that the company can make fair job assignments based
on ability and seniority in accordance with Griffin's usual method
as modified by policy letter dated July 11, 1961... .
Some of the strikers were never reinstated and some were reinstated
to different jobs from those they held prior to the strike.
B. Conclusions
1. The Respondent's unlawful refusal to bargain;
conversion of the strike
The Trial Examiner concluded that the Respondent, by announcing
and granting superseniority on layoffs to nonstriking employees and
to those who abandoned the strike or replaced strikers during the
strike, failed and refused to bargain collectively, in violation of Sec-
tion 8(a) (5) of the Act, and interfered with, restrained, and coerced
employees, in violation of Section 8 (a) (1) of the Act. He concluded,,
however, that these unfair labor practices, although occurring during
the course of a strike which was economic in origin, did not prolong
the strike, thereby converting it into an unfair labor practice strike
on the theory that as there were items of disagreement between the
parties other than superseniority, the date when the strike would have
been terminated, absent these unfair labor practices, was speculative.
The General Counsel excepts (A) to the Trial Examiner's failure
to find that the Respondent committed an additional violation of the,
Act on July 16 by insisting that its superseniority policy be included
in the contract,9 and (B) to his conclusion that the Respondent's un-
fair labor practices did not aggravate and prolong the strike, thereby
converting it into an unfair labor practice strike. We find merit in
these exceptions.
Based on the entire record, as summarized above, we find that the-
conduct of the Respondent at the July 16 meeting constituted in-
sistence that its superseniority policy "had to be incorporated in the
contract." Herschelman admitted that he made such a statement and
that he thereafter gave no indication of any intent to retreat from this
Y The Intermediate Report indicates at some points that the Trial Examiner considered
it unnecessary to decide whether the Respondent insisted on superseniority on July 16,
and at others that he decided there was no such insistence
1674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
position. Accordingly, we find that the Respondent, by its announce-
ment and grant of superseniority 10 and its insistence upon the in-
corporation of its superseniority policy in the collective-bargaining
contract," failed to bargain in good faith in violation of Section
.8(a) (5) and (1) of the Act.
In addition, we find that the Respondent's unfair labor practices
engaged in during the course of an economic strike, aggravated and
prolonged the strike, thereby converting it into an unfair labor prac-
tice strike. This is manifest from all the facts. Thus, as a result of
the Respondent's injection of superseniority as a new issue between
the parties, negotiations were deferred on July 14 in order that the
Respondent could poll nonstrikers on this matter. Further, at the
next meeting, which took place on July 16, negotiations were com-
pletely disrupted because of the Respondent's insistence that its super-
seniority policy be incorporated in the contract. Additionally, that
'evening the union membership voted to continue the strike in protest
against the superseniority policy, and the strike did continue through
July 18. Accordingly, we find that the strike was in fact aggravated
and prolonged by the Respondent's unlawful conduct, and that it
was thereby converted into an unfair labor practice strike. We find
further that the effective date of this conversion was July 11, 1961,
when the Respondent embarked upon its unlawful course of conduct
by announcing its superseniority policy.12
2. The Respondent's discrimination with regard to
reinstatement of strikers
As set forth above, the Union, on the night of July 18, 1961, noti-
fied the Respondent that the strike was terminated, and made an
10 We make no finding with respect to the question of whether this conduct violated
Section 8(a)(3) of the Act inasmuch as the complaint did not allege a violation of
Section 8 ( a)(3) based on such conduct , and the General Counsel did not except to the
Trial Examiner 's failure to so find The complaint does allege that the Respondent vio-
lated Section 8(a)(3) by discriminating with regard to the reinstatement of strikers as
discussed below.
The Trial Examiner found it unnecessary to decide whether the Respondent 's mainte-
nance of its superseniority policy constituted a further violation of the Act. As the
General Counsel, in effect, agreed with the Trial Examiner at the hearing that such a
finding was unnecessary and no exceptions have been taken thereto, we adopt the Trial
Examiner' s finding pro forma.
The Trial Examiner discusses the General Counsel ' s argument regarding the Respond-
ent's maintenance of a seniority roster reflecting its superseniority policy but finds no
violation based thereon As the complaint contained no allegation with respect to this
conduct and no exceptions have been taken to the failure to so find , we adopt the Trial
Examiner's finding pro forma
11 Erie Resistor Corporation, 132 NLRB 621.
12 Oates Bros ., Inc, 135 NLRB 1295 , footnote 11; U.S. Sonics Corporation, 135 NLRB
818; Trinity Valley Iron and Steel Company, a Division of C C Griffin Manufacturing
Company, Inc , 127 NLRB 417, 424; National Gas Company , 99 NLRB 273, 285, reversed
on other grounds 215 F. 2d 160 (CA. 8).
The Respondent argues that its unfair labor practices eventually resulted in the Union's
abandonment of the strike on the night of July 18 , and thus shortened the strike. As we
have found that the Respondent ' s unlawful conduct served to convert the strike as of
July 11, we find no merit in this contention
GRIFFIN PIPE DIV. OF GRIFFIN WHEEL COMPANY 1675°
application for the return to work of all the strikers on the following
morning, July 19. As we have found that the strike had been con-
verted into an unfair labor practice strike on July 11, and as none of
the strikers had been replaced as of that date, it follows that all the
strikers were entitled to reinstatement on July 19.13 The General
Counsel contends that the Respondent violated Section 8(a) (3) and
(1) of the Act by its failure or refusal to reinstate (A) 33 strikers to,
their former or substantially equivalent positions or to any position
of employment, and (B) 31 strikers to their former or substantially
equivalent positions. The Respondent admits that it failed or refused
to reinstate 28 strikers in the first group and 23 in the second, and we
therefore find that it violated Section 8(a) (3) and (1) of the Act
with respect to them. The Respondent disputes the General Counsel's
contentions with respect to five strikers in the first group and eight
in the second.
Those in the first group are :
Paul M. Andersen: The General Counsel and the Respondent
stipulated that he did not bid on the jobs posted after the strike al-
though he was notified by the Respondent by letter on July 21 14 that
unless he came in and bid on a vacant job, he would not be reem-
ployed; and that he was terminated on July 28, 1961. As the record
does not establish whether Andersen failed to report for work after
the strike, or reported but refused to participate in the bidding pro-
cedure," we shall leave the determination of his status to the com-
pliance stage of this proceeding.
Wayne E. Knouse, Richard R. Steffen, and Virgil Johnson: The
General Counsel and the Respondent stipulated that, prior to the
strike, Knouse was a casting control operator earning $2.52 an hour,
and Steffen was a machinist earning $2.65 an hour. After the strike
ended, they bid on jobs but were unsuccessful. Thereafter, job
vacancies arose, some in the laborer classification, which paid $2 an
hour. The Respondent telephoned Knouse and Steffen and offered
them permanent employment, with temporary assignment as laborers,
until all the vacant jobs could be bid upon. Knouse and Steffen refused
to return as laborers although told that this meant terminating their
employment. They were terminated on July 28, 1961. Johnson testi-
13 N L.R B v. Pecheur Lozenge Co ., Inc, 209 F. 2d 393, 404 ( C A. 2), cert denied
347 U.S. 953.
14 The letter stated that "According to our records you have not yet come to the plant
to inquire about your status"; that it was necessary for him to bid on vacant jobs if he
desired reinstatement ; that job assignments would be "based on ability and seniority in
accordance with Griffin 's usual method as modified by policy letter to all employees
dated July 11, 1961"; and that bidding would remain open until July 24, 1961.
15 Andersen testified at the hearing He was temporary president of the Union at the
Respondent 's plant, one of the union committeemen involved in the 1961 negotiations,
and chairman of the July 16 membership meeting. He commenced working for the Union
Pacific Railroad on July 19 , 1961 , and was employed there at the time of the hearing,
October 10 , 1961. He was not questioned about his failure to be reinstated.
E[676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fled that he was a press operator prior to the strike, and that, after the
strike, he bid for the jobs of press operator, transfer operator, and
laborer. Thereafter, he received a letter from the Respondent advising
.him to report to work on July 26 at 3 p.m. He failed to report at that
time. About 5 p.m., Dean telephoned Johnson and asked if he were
returning to work. Johnson replied, "No, not on this shift." When
Dean told him that he would be terminated if he failed to return that
might, Johnson said he realized that, and Dean terminated him. As
Knouse, Steffen, and Johnson were entitled to be reinstated to their
former or substantially equivalent jobs on July 19, 1961, and as the
Respondent refused so to reinstate them on that day, we find that it
hereby violated Section 8 (a) (3) and (1) of the Act. Moreover, we
find that the Respondent's subsequent offers to them did not constitute
offers of their former or substantially equivalent jobs.
Robert D. Jamzes: After the strike, James bid on his former mainte-
nance job and on a laborer's job. He was notified by the Respondent on
the evening of July 25 that he had been awarded a maintenance job,
and came to work on July 26 on the 11 p.m. to 7 a.m. shift. About 5
-a.m. on July 27 he had a conversation with his foreman, Cook, during
which, James testified, he asked Cook for permission to take 3 nights'
leave to complete the job he had taken with the Union Pacific Railroad
during the strike. According to James, Cook said, "As far as he was
• concerned, it was all right with him." However, Cook testified that
,he initiated the conversation with James because he had heard that
James was working the same shift on his Union Pacific job and in-
tended to continue working there 5 nights a week and for the Re-
spondent the remaining 2; that when James confirmed this, Cook told
him it would not be permissible; that, in response to James' inquiry,
Cook told him he did not have authority to grant a leave of absence;
.and that James then stated he would continue to work at the Re-
spondent's plant.
James did not report for work on the nights of July 27, 28, and 31.
When he reported on August 1, he was terminated by another fore-
man on the ground that "there hadn't been anything said" about his
obtaining permission to be absent the 3 preceding nights. The Trial
Examiner did not resolve the conflict in the testimony of James and
Cook. The General Counsel argues that James should be credited and
that, although he returned to work, he was not properly reinstated be-
cause he was entitled to a reasonable period in which to give notice to
his interim employer.
We find that the Respondent, by its refusal to reinstate James on
July 19, 1961, violated Section 8 (a) (3) and (1) of the Act. There-
after, James accepted reinstatement and began to work on July 26,
without making any request for time to give notice to his interim
GRIFFIN PIPE DIV. OF GRIFFIN WHEEL COMPANY 1677
employer. We find, therefore, that he was properly reinstated on
July 26. His conversation the following morning with Cook, even
were we to accept his version thereof, concerned not his reinstatement
but an incident of his employment relationship. As we find no
evidence in the record that James' discharge on August 1 was based
,,on union considerations, we shall not order James reinstated, and
shall limit his backpay to the period from July 19 to 26, 1961.
The eight disputed individuals in the second group had all worked
on the first shift prior to the strike, and were reinstated subsequent to
the strike on the second shift.16 We find that the Respondent's rein-
statement of these men to a shift other than the one they had worked
on prior to the strike did not constitute reinstatement to the same or
substantially equivalent employment, and was, therefore, violative of
,Section 8(a) (3) and (1) of the Act.l7
The Remedy
Having found that the Respondent has violated the Act, we shall
order that it cease and desist therefrom, and take certain affirmative
.action in order to effectuate the policies of the Act.
As the Respondent's announcement of its superseniority policy and
its grant of superseniority to nonstrikers and to those who abandoned
the strike or who replaced strikers was violative of the Act, we shall
order the Respondent forthwith to rescind said policy, and to restore
all strikers to the seniority they would have enjoyed absent this super-
seniority policy.
As we have found that the Respondent refused to bargain collec-
tively with the Union as the exclusive representative of the employees
of the appropriate unit by the above-described action and by insisting
that its superseniority policy be included in the collective-bargaining
contract, we shall order it to cease and desist therefrom and, upon re-
-quest, to bargain collectively with it and, in the event an understand-
ing is reached, embody such understanding in a signed agreement.
We have also found that the strike, which began as an economic
strike on July 6, 1961, was converted into an unfair labor practice
strike on July 11, 1961, and that the Respondent's refusal to reemploy
certain strikers on July 19, 1961, and to reinstate others to their former
16 Some were given different job classifications , but all received the same or higher
wage rates plus the 10 cents an hour wage differential for the second shift.
17 The Stslley Plywood Company, Inc, 94 NLRB 932, 936 (re Charles E. Sherman),
•enfd. as modified on other grounds 199 F 2d 319 (CA 4), cert denied 344 U S 933.
In addition, as to Lester E. Bingle, one of the eight, the General Counsel and the
Respondent stipulated : "On May 13 , 1961 , he requested a transfer of jobs but none was
available. On September 1, 1961, he called in to say he was quitting." As the record
does not indicate why Bingle chose to terminate his employment, we shall leave the
,determination of his reinstatement and backpay to the compliance stage of this proceeding.
Our findings herein do not , of course, bar the Respondent from nondiscriminatory shift
notations of its employees.
1678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or substantially equivalent employment, was discriminatory. We
shall therefore order the Respondent, insofar as it has not already done
so, to offer to those employees who are listed in Appendix B attached
hereto," immediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their seniority
or other rights and privileges, dismissing, if necessary, any employees
hired since July 11, 1961.
We shall also order the Respondent to reimburse Robert D. James
and the employees listed in Appendix B attached hereto for any loss
of pay they may have suffered by reason of the Respondent's discrimi-
nation against them, by payment to each of them of a sum of money
equal to the amount which he normally would have earned as wages
during the periods (a) from July 19, 1961, the date of the Respondent's
refusal to reinstate them, to the date of the Intermediate Report,"' and
(b) from the date of this Decision and Order to the date of the Re-
spondent's offer of reinstatement 20 Such loss of pay shall be com-
puted on the basis of separate calendar quarters, in accordance with
the policy enunciated in the Woolworth case.2i
CONCLUSIONS OF LAW
1. United Steelworkers of America, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
2. All the Respondent's production and maintenance employees,
excluding all office clerical employees, guards, research and profes-
sional employees, and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
3. The above-named labor organization has been at all times since
June 30,1960, the exclusive representative, within the meaning of Sec-
tion 9 (a) of the Act, of all employees in the aforesaid unit for the pur-
poses of collective bargaining.
4. By announcing its superseniority policy, by granting super-
seniority to nonstrikers and to those who abandoned the strike or
replaced strikers, and by insisting on inclusion of its superseniority
policy in the collective-bargaining contract, the Respondent has en-
gaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (5) of the Act.
13 Appendix B does not contain the names of Paul M . Andersen and Lester E Bingle ;
we have left the determination of their reinstatement and backpay rights to the com-
pliance stage of this proceeding
1e With regard to Robert D. James, the backpay period shall run from July 19, 1961,
to the date of his reinstatement
20 When , as here, the Board, contrary to the Trial Examiner, orders backpay for em-
ployees, such backpay is abated from the date of the Intermediate Report to the date of
the Board 's Decision and Order.
P IF W. Woolworth Company, 90 NLRB 289
GRIFFIN PIPE DIV. OF GRIFFIN WHEEL COMPANY 1679
5. By the aforesaid conduct, the Respondent has interfered with,
restrained, and coerced employees in the exercise of rights guaranteed
by Section 7 of the Act, and has thereby engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (1) of the
Act.
6. The strike, which commenced at the Respondent's plant on
July 6, 1961, as an economic strike, was converted by the aforesaid
unfair labor practices into an unfair labor practice strike on July 11,
1961.
7. By discriminating in regard to the hire and tenure of employees,
thereby discouraging membership in the above-named labor organiza-
tion, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (3) of the Act.
8. These unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Griffin Pipe
Division of Griffin Wheel Company, Council Bluffs, Iowa, its officers,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Giving effect to its superseniority policy, or to any other sen-
iority policy which discriminates against any of its employees with
regard to the other in which they are to be selected for layoff, or with
regard to any other aspect of their employment relationship, on the
basis of whether they had or had not worked during a strike.
(b) Refusing to bargain collectively with United Steelworkers of
America, AFL-CIO, as the exclusive bargaining representative of
the employees in the appropriate unit, by the above conduct and by
insisting that the aforesaid Union agree to a discriminatory super-
seniority plan.
The appropriate bargaining unit is:
All production and maintenance employees at the Respondent's
Council Bluffs, Iowa, plant, excluding all office clerical employees,
guards, research and professional employees, and supervisors as
defined in the Act.
(c) Discouraging membership in United Steelworkers of America,
AFL-CIO, or in any other labor organization of its employees, by
refusing to reinstate its employees upon their unconditional -abandon-
ment of an unfair labor practice strike, or otherwise discriminating
against them in regard to their hire or tenure- of employment or any
1680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
term or condition of employment, except as authorized in Section,
8 (a) (3) of the Act, as amended.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of rights guaranteed in Section 7
of the Act.
2. Take the following affirmative action which the Board finds will'
effectuate the policies of the Act :
(a) Upon request, bargain collectively with United Steelworkers
of America, AFL-CIO, as the exclusive representative of all em-
ployees in the aforementioned appropriate unit, and, in the event an
understanding is reached, embody such understanding in a signed
agreement.
(b) Rescind its superseniority policy, and restore all the former
strikers to the seniority they would have enjoyed absent the super-
seniority policy.
(c) Insofar as it has not already done so, offer the employees listed
in Appendix B attached hereto immediate and full reinstatement toa
their former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, dismissing, if neces-
sary, any employees hired since July 11, 1961, and make them and
Robert D. James whole for any loss of pay they may have suffered by
reason of Respondent's discrimination against them, in the manner
set for in the section of this Decision entitled "The Remedy."
(d) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment
records, timecards, personnel records and reports, and all other records,
necessary to analyze the seniority and reinstatement rights of em-
ployees and former employees and the amounts of backpay due under-
the terms of this Order.
(e) Post at its plant in Council Bluffs, Iowa, copies of the notice,
attached hereto marked "Appendix C." 22 Copies of said notice, to
be furnished by the Regional Director for the Eighteenth Region,,
shall, after being duly signed by the Respondent, be posted by it im-
mediately upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps.
shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director for the Eighteenth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
zd In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and' Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
GRIFFIN PIPE DIV. OF GRIFFIN WHEEL COMPANY 1681_
APPENDIX B
Donald E. Bahr
Clifford Barth
Ernest A. Bates
O. V. Brown
Max E. Bullington
Kenneth L. Camp
Jack Coan
Albert Lee Graybill, Jr.
Quentin A. Hanneman
Donald F. Hassler
Warren G. Jensen
Virgil Johnson
Wayne E. Knouse
Ronald D. Kuhlmann
David E. Meyers
Lewis Meyers
Michael T. O'Grady
Harold F. Powers
Duane Porter
John H. Schnackenberg
Lloyd C. Springer
Richard R. Steffen
Gilbert W. Stogdill
Thomas W. Stuart
Johnny L. Thomas
Donald W. Thompson
Edward J. Wageman
Glen J. Wagner
John W. Whitt
Leland D. Winterstein
Ralph A. Woods
Harold E. Allen
James Anderson
William T. Anderson
Robert Bringleson
John W. Collins, Jr.
Eugene E. Cook
R. P. Cook, Jr.
William R. Cozad
Kenneth F. Doty
Gary L. Driver
Ervin Eilts
Adam J. Gdowski
Kenneth D. Girton
Harold R. Hicks
Edgar W. Hulsebus-
Carol A. Lee
Thomas O. Miller
George W. Myers
Kenneth Perrin
Larry Phippen
Richard Lee Pigman
Francis Raymond Pogge'
August L. Pontow
Alvin G. Scott
Donald L. Smith
Ronald Eugene Smith
Jesse A. Sobbing
Ralph E. Spencer
Herbert A. Wagner
Frederick D. Witt
APPENDIX C
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations,
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT give effect to our superseniority policy, or to any-
other seniority policy which discriminates against any of our em-
ployees with regard to the order in which they are to be selected
for layoff, or with regard to any other aspect of their employ-
ment relationship, on the basis of whether they had or had not
worked during a strike.
WE WILL NOT refuse to bargain collectively with United Steel-
workers of America, AFL-CIO, as the exclusive bargaining rep-
resentative of the employees in the appropriate unit, by the afore--
X682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said conduct and by insisting that the aforesaid Union agree to
a discriminatory superseniority plan. Upon request, we will bar-
gain collectively with the aforesaid Union, and, in the event an
understanding is reached, embody such understanding in a signed
agreement.
WE WILL NOT discourage membership in United Steelworkers
,of America, AFL-CIO, or in any other labor organization of our
,employees, by refusing to reinstate employees upon their uncon-
ditional abandonment of an unfair labor practice strike, or other-
wise discriminating against them in regard to their hire or tenure
of employment or any term or condition of employment, except
as authorized in Section 8(a) (3) of the Act, as amended.
WE WILL rescind our superseniority policy, and restore all the
former strikers to the seniority they would have enjoyed absent
the superseniority policy.
WE WILL, insofar as we have not already done so, offer the
following employees immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, dismissing, if neces-
sary, any employees hired since July 11, 1961:
Donald E. Bahr
Clifford Barth
Ernest A. Bates
O. V. Brown
Max E. Bullington
Kenneth L. Camp
Jack Coan
Albert Lee Graybill, Jr.
Quentin A. Hanneman
Donald F. Hassler
Warren G. Jensen
Virgil Johnson
Wayne E. Knouse
Ronald D. Kuhlmann
David E. Meyers
Lewis Meyers
Michael T. O'Grady
Harold F. Powers
Duane Porter
John H. Schnackenberg
Lloyd C. Springer
Richard R. Steffen
Gilbert W. Stogdill
'Thomas W. Stuart
,Johnny L. Thomas
Donald W. Thompson
E dward J. Wageman
;Glen J. Wagner
Harold E. Allen
James Anderson
William T. Anderson
Robert Bringleson
John W. Collins, Jr.
Eugene E. Cook
R. P. Cook, Jr.
William R. Cozad
Kenneth F. Doty
Gary L. Driver
Ervin Eilts
Adam J. Gdowski
Kenneth D. Girton
Harold R. Hicks
Edgar W. Hulsebus
Carol A. Lee
Thomas O. Miller
George W. Myers
Kenneth Perrin
Larry Phippen
Richard Lee Pigman
Francis Raymond Pogge
August L. Pontow
Alvin G. Scott
Donald L. Smith
Ronald Eugene Smith
Jesse A. Sobbing
Ralph E. Spencer
GRIFFIN PIPE DIV. OF GRIFFIN WHEEL COMPANY 1 683
John W. Whitt Herbert A. Wagner
Leland D. Winterstein Frederick D. Witt
Ralph A. Woods
WE WILL make Robert D. James and the above employees whole
for any loss of pay they may have suffered as a result of our dis-
criminatory refusal to rehire them on duly 19, 1961.
GRIFFIN Pins: DIVISION OF GRIFFIN
WTiii]ba, COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Ilegiolial
Office, Federal Building, 110 South 4th Street, Minneapolis 1, Minne-
sota, Telephone Number 339-0112, Extension 2601, if they have any
questions concerning this notice or compliance vitlt its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
The complaint herein, as amended, alleges that the Company has violated Section
8(a),(5) and (1) of the National Labor Relations Act, as amended, 73 Stat. 519, by
announcing and putting into effect in connection with a strike of its employees a
superseniority rule with respect to future layoffs, and thereafter continuing such rule
and insisting on its inclusion as a provision in any collective-bargaining agreement;
and Section 8(a)(3) and (1) of the Act by refusing to reinstate 33 named i employ-
ees to any position and 31 other employees to their former or substantially equivalent
positions , after an unconditional offer and applications to return; and that the strike
was aggravated and prolonged by the acts which constituted the refusal to bargain.
Admitting certain acts which are alleged to constitute a refusal to bargain, but not
the complaint's characterization thereof, and the refusal to reinstate some of the
employees named, the answer as amended denies the allegations of aggravation and
prolongation of the strike, and of unfair labor practices.
A hearing was held before Lloyd Buchanan, the duly designated Trial Examiner,
at Council Bluffs, Iowa, from October 9 to 12, 1961, inclusive. Briefs have been
filed by the General Counsel, the Union, and the Company; the time to do so having
been extended.
Upon the entire record 2 in the case, and from my observation of the witnesses, I
make .the following:
FINDINGS OF FACT (WITH REASONS THEREFOR)
I. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED
It was admitted and I find that the Company, a Delaware corporation with prin-
cipal office and place of business in Chicago, Illinois, is engaged in the manufacture
and sale of water pipe and sewer pipe at its plant in Council Bluffs, Iowa; that during
the year 1960 it bought raw materials valued at more than $100,000 from suppliers
outside the State of Iowa, and sold pipe valued at more than $100,000 to its cus-
tomers outside the State; and that it is engaged in commerce within the meaning
of the Act.
' In view o1 the disposition of this issue, infra, it is unnecessary to list here the names
of all of the alleged discriminatees
2
The Company's motion to correct the transcript, to which no objection has been filed,
Is hereby granted except that on page 44 the substitution is for the word "convention
641795-63-vol. 136-107
1684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It was admitted and I find that the Union is a labor organization within .the mean-
ing of the Act.
II THE UNFAIR LABOR PRACTICES
A. The alleged refusal to bargain
It was admitted that the following constitutes an appropriate unit for the purpose
of collective bargaining within the meaning of the Act:
All production and maintenance employees , but excluding all office cleri-
cal employees , guards, research and professional employees , and supervisors as
defined in the Act.
On June 30 , 1960, the Union was certified as the exclusive collective -bargaining
representative for the employees in the unit The parties thereafter engaged in col-
lective bargaining until approximately October 1960 ; they resumed negotiations in
May 1961.
It was stipulated that the Union was recognized by the Company as the bargaining
representative of the employees in the unit through July 16 , 1961 . Since the com-
mission of an unfair labor practice as alleged would prevent a fair test of the Union's
majority, the Company in such case would not be heard to question such majority
thereafter Hence if during the period when the Company was negotiating with the
Union, the former committed such a violation , the majority representation as recog-
nized by the Company would here be presumed On the other hand , if there was no
violation as alleged , majority after July 16 would be of no consequence in this pro-
ceeding In short, whatever the issues before us , there is no issue concerning the
Union's majority at any time here material
The letter which the Company in its answer admitted that it sent by registered mail
to each employee on July 11, 1961 , and which it advertised in a local newspaper on
July 12 is attached to this report marked "Appendix A " It is that letter and the
Company 's alleged adoption of the superseniority policy therein set forth and insist-
ence that the Union accept the terms thereof which the General Counsel alleges
constitute a violation of the Act.
Since a superseniority policy is discriminatory ,3 unilateral announcement thereof
establishes a refusal to bargain and interference within the meaning of the Act. The
Board has repeated and emphasized this principle in the even more recent Swan
Rubber Company case 4 If it be unlawful to grant preference to union members
in laying off,5 it is equally unlawful to grant such preference to those who work
during a strike in opposition to a union ' s strike efforts . As one may and should be
a maverick, independent of others ' influence in matters of principle and where there
has not been an authoritive declaration , so must he "be subject unto the higher
powers" 6 where authority has spoken The Company could lawfully replace
economic strikers . But until replaced , they could not lawfully be deprived of the
right to reinstatement "without prejudice to their seniority or other rights and
privileges "
It is clear and undisputed that the superseniority granted and at issue here is
limited by its terms to preference on layoff
With violations thus found on the basis of the Erie Resistor decision , it appeared to
be unnecessary to receive testimony concerning the events which led up to the super-
seniority violation or which might explain such violation But with the General
Counsel claiming that it is "the crux of the case" to show "how big a part the super-
seniority issue" played , and the Company urging that the testimony be allowed "to
show what the surrounding circumstances were ," such testimony was received.
Should the Board want to go behind its decision in Erie Resistor , we have here the
facts which both sides apparently wanted in the record to show whether there was
more ,than "inherent violation." In any event these facts concerning the negotiations
shed light on the issue of the prolongation of the strike, infra
`t;'i•ic I sistor Corpo ration , 132 NL1:I1 621
133 NLRB 375 Cf also lienne Kota, 4lfred FInte1, and 111aiicy Katz, (1/b/a
1V^(Iainsbrrp Steel Products Company 126 NLRP, 288 In the latter ease, den y ing en-
forcement and remanding the case, the Cucuit Court of Appeals for the Second Circuit
(289 F 2d 700 ) on April 11 , 1961 , insisted on "a definite determination of the mental
attitude of the employer " rather than the Board ' s reliance on "specific umlatcial acts,
regardless of had faith " in connection with wage increases and sick leave changes The
Supreme Coint has granted the Board's petition for certiorau in that case, 368 U'S 811.
5 Cf Paragon Products Cot-potation, 134 NLRB 662
6 Romans 13.1.
GRIFFIN PIPE DIV. OF GRIFFIN WHEEL COMPANY 1685
The Company argues that the Supreme Court's decision in the MacKay Radio
case 7 is contrary to the Erie Resistor decision; but the Board in the latter case did
not overlook MacKay.
At the hearing the Company undertook to explain the circumstances surrounding
and the reasons for the issuance of the letter of July 11. It attempted to show that
difficulty in getting replacements because of violence on the picket line affected
measures which the Company had to take to obtain replacements; and that this
prompted the Company to offer inducements as here and to publicize the inducement
as it did in its letter of July 11. Violence calls for its own remedy or penalty,
difficulty of proof thereof does not warrant adoption of unlawful measures, specifi-
cally relegation of all strikers to a subordinate status on return.
The Company also sought to show its apprehension based on violence here and
elsewhere But under Erie Resistor, the question is not the Company's state of mind
but the inherent tendency to persuade or to affect employees and potential replace-
ments. In this connection the Company argued that under the conditions which it
sought to portray, potential replacemens might be unwilling to take jobs, and strikers
might be unwilling to return; and that the Company might therefore reasonably
believe it necessary to offer additional inducements to recruit replacements and to
effect the return of strikers.
Further to explain and to support its concern, the Company offered testimony to
show its very existence was threatened and that the strike was costly to it. This is
understandable but not unusual, whatever the sympathy and concern even of those
who are not directly involved
But the Board held in Erie Resistor that interference and discrimination are "the
inevitable result of [the] preference granted .. ." It there declared, as has many
times been held: "Where discrimination is so patent, and its consequences so in-
escapable and demonstrable, we do not think the General Counsel need prove that
Respondent `intended' such a result." The Company's argument to the contrary
notwithstanding, we are not to assign "the utmost importance" to its motivation
By letter dated July 7, 1961. the Company showed its concern when the strike was
1 day old as it advised the employees of their right to continue to work and sug-
gested a procedure which they should follow in the event of violence, threats, or
other unlawful conduct.
Such early evidence of concern which allegedly prompted the superseniority letter
of July 11, if valid, would prove too much. Not only aie the later losses testified
to by the Company common in such situations; but the Company, citing an ex-
culpatory concern based on its appraisal of events during the second full week in
July, points to that concern as existing the week before and indeed before the strike
got well under way' As for any claim that the letter of July 11 was prompted by
arson which occurred on an employee's farm on that day or violence at around that
time, it is clear from the testimony of Vice President Marold that the policies an-
nounced in that letter were discussed and arranged for the week before, the Com-
pany admittedly waiting to see whether the strikers would return (This testimony
was offered on the issue of "the state of mind of prospective replacements" and
might reflect on the Company's state of mind also, but not as proof against the
Union or the strikers ) In fact the Company testified to its wholly subjective re-
action based on reports of violence elsewhere and 2 years before the instant strike
Aside from the question whether violence elsewheie and 2 years before would
reflect on the situation here, the Company's own testimony, as we shall see, indi-
cates that what concerned replacements was their retention Whatever the fear
of immediate and direct violence, against which they availed themselves of the
Company's protective measures, there is no evidence that either nonstrikers or re-
placements even requested the superseniority determined upon by the Company
(This is not to suggest that requests by some employees or potential replacements
would have justified this interference with the rights of other employees and their
bargaining agent.)
We must not minimize the problems and concern of a struck employer, especially
at its peak season and in the face of commitments made to its customers or con-
tractors But concern based on such considerations is not unusual and. to reneat,
would prove too much: for without amendment of the statute's recognition of the
right to strike, or acceptance of a broader basis for granting seniority than the
Board has heretofore recognized, this plea of concern and economic pressure would
justify superseniority grants in most if not all strike situations
Still on the question whether the Company's concern justified its promise of
superseniority, we should note the testimony by Dean, its manager of operations, that
7 N L R B v MacKay Radio & Telegraph Co , 304 U S 333
1686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
several replacement applicants asked whether they would be replaced when the
strikers returned. Here was an item of inducement which the Company could law-
fully offer during an economic strike: permanent replacement of the strikers It
does not even appear that superseniority was there sought or that its offer thereof,
lawful or not, was requested.
I have not overlooked Marold's testimony that at one and perhaps a second meet-
ing with nonstriking employees in the plant, "[s]ome of them said [that they would]
like to see some sort of layoff preference given to [them] in the future.. . .
No problem apparently developed at the time despite the absence of any assurance to
them as they were advised to "be patient": it was explained that the Company
wanted the strikers back, that all would later have to work side by side, and the
Company did not "want to proceed with any undue haste and do anything pre-
cipitous." Thus we could hardly rely on this alleged suggestion of layoff pref-
erence by some unidentified employees as warranting the decision thereafter made
and the action taken by the Company. In a letter to employees on July 10, the
Company reported the status of negotiations with the Union. It apparently saw no
need at the time when it issued that letter or at a meeting held that afternoon to
satisfy or placate nonstrikers with even a reference to the superseniority which it
promised the following day.
Superseniority on layoffs was apparently an inducement conceived of by the
Company. Applicants' concern for permanent employment is understandable, and
could be met by assuraance of permanency in replacement, as hereinabove noted,
if as the Company believed this was an economic strike. Company counsel has
argued that the July 11 letter "lend[s] some meaning to the word `permanence' by
providing some form of layoff preference" A displaced economic striker and his
replacement well know that there is "meaning" in the permanence of the replace-
ment, and in assurance thereof, without superseniority on layoff. In fact, if the
replacements are not now to be ordered displaced by strikers, it is because this is
found to have been an economic strike; not because of the Company's promise of
superseniority which, whatever the rights of the replacements as against the Com-
pany, cannot affect the rights of those strikers who are entitled to reinstatement.
The Company points to its attempts to meet the situation described in Bixby, et al
v. Wilson & Company, Inc.,8 at that time pending and since dismissed in the court's
decision of August 21, 1961. If it adopted the instant superseniority plan as a
"way to appeal" to employees who "were sort of gun-shy of struck plants hiring
people on a permanent basis," because of the developments at the Wilson plant,
there is no evidence of any attempt to explain to employees here the technical dis-
tinction between so-called permanent hiring and superseniority on layoffs so that
the gun-shy would "accept (Company) job offers and come to work "
To cite another and specific fact noted by the Company and concerning which
there is no dispute, the Company submitted the official Department of Labor find-
ing that in July 1961 the Omaha area was designated a "Group C area" (no "A"
or "B" being listed at that time), signifying that no area geographically listed has
a smaller labor surplus Aside from the important qualification that even in such
an area "job seekers [are] slightly in excess of job openings," and the generaliza-
tion expressed which embraces many industries, types of jobs, wage rates, etc., the
argument which is based on the fact as noted would lead to the conclusion that in
times of relatively full employment so-called, employers might in like situations
lawfully grant superseniority and perhaps many other advantages and inducements
The answer to this is that it is not the law
Under the Erie Resistor decision, my finding on the question whether the super-
seniority announcement and grant were warranted by the circumstances would be no
more relevant than the testimony received in this connection But since we do have
such testimony and it may be considered later, I shall now offer a brief observation
without presuming to make findings thereon since such findings would be im-
material under that decision We have already noted the testimony concerning
violence here and elsewhere, and that the Company was concerned with such vio-
lence even though it was not connected with this Union; and that such concern and
concern over financial loss are not unusual. Certainly to the extent that testimony
concerning later events was offered to explain the Company's concern, such tecti-
monv could not provide justification for the letter of July 11 In determining
whether the Company's acts were reasonable it would be necessary in this case to
balance the elements of anticination. of suspicion, and, in some instances. of hear-
sav as the basis for its alleged concern, against the material elements of existing
rights based on seniority (whether great or short).
8196 F. Supp. 889
GRIFFIN PIPE DIV. OF GRIFFIN WHEEL COMPANY 1687
This finding of refusal to bargain does not depend on any proof of animus or
antiunion motivation beyond the admitted fact of proposal and adoption of, and
insistence on, the superseniority provision. That the Company elsewhere "enjoys,"
to quote from its brief, collective bargaining with this and other unions does not
exculpate it from the violation here found.
Since the evidence shows that the Company announced its superseniority policy with
respect to layoff and put that policy into effect, and since a finding to that effect has
been made, it is unnecessary at this point to make or rely on any finding with respect
to the allegations that the Company thereafter during negotiations with the Union
insisted on the continuance of such policy and on inclusion of a provision to that
effect in any contract to be signed with the Union. As for the further allegation
that the Company has continued to maintain its superseniority rule or policy, it was
agreed that we need not go into that question since a finding, as made supra, of
earlier violation would warrant as complete a remedy. In this connection it must
be stressed that superseniority was announced or put into effect; it was no mere pro-
posal held in abeyance for agreement. (While this constituted a failure to bargain,
we shall see, infra, that it was not implemented to the point of action thereon and
that this latter was not alleged.) Nor could the Company justify any later in-
sistence by the promise already made; for if itself violative, that promise would not
create a right in the Company to insist on performing it. As for any obligation
to those thus promised, that issue is not before us.
B. Economic or unfair labor practice strike
Determining whether an economic strike has been prolonged by unfair labor
practices and has thereby been converted into an unfair labor practice strike should
be no arcane process.9 Here as elsewhere we must consider the entire record in
the case and the preponderance of the testimony taken.
According to the Union, the parties after several bargaining meetings had, by
June 27, 1961, "negotiated a considerable portion of the agreement." On that date
a number of basic issues remained unresolved, including insurance, shift rotation,
wages, contract expiration date, pension date, holiday pay, jury duty pay, I.S.A. credits,
protective clothing allowance, rates for two classifications, and certain rules. Other
issues had been tentatively agreed upon and provisions therefor had been drafted
and initialed.
No progress was made on the unresolved issues at the meeting of June 27. The
Union's bargaining committee thereafter met, discussed the status of the negotia-
tions, and decided to strike Notice was given to the Company on July 5, and
the strike began the following morning With the strike continuing, the parties met
on July 12 and 14 under the auspices of a member of the Federal Mediation and
Conciliation Service Although Piper, an International representative and the
Union's chief negotiator, testified that he was uncertain as to when he first learned
of the Company's letter of July 11, it is clear that the letter had been delivered
by registered mail to at least some of the strikers that same evening; and it is
reasonable to believe that the union negotiators had knowledge of the letter when
they met on July 14 with the Company's representative. On the latter date Piper
submitted a new proposal on behalf of the Union Herschelman, the Company's
director of organizational services and its chief negotiator, and Beckman, its attorney,
thereupon characterized the Union's proposal as being down to earth and said that
if the Union had come up with it a long time earlier the parties would have had
a contract. But they added that in the meantime commitments had been made to
employees (this was a reference to the matter of superseniority). Herschelman's
version was that he had said that "very possibly a contract could have been con-
summated" but that new issues had been raised because of the strike. He later
testified, "(W)ith some further negotiations we could probably have consummated
a contract."
Beckman declared that he was sure that the commitments could be worked out.
The meeting of July 14 terminated on that note, the Company promising to con-
sult the employees who were then working, and the parties agreeing to meet again
on July 15. Such steadfastness and recognition by the Company of an obligation
based on a commitment are indeed laudable and could be translated in relations
with employees into a sense of high purpose. But here the commitment itself was
° See I Posner, Inc, et al , 133 NLRB 1573 (IR at footnote 30) Whatever the Board
may there or elsewhere have said concerning the necessity for determining that question
(cf City Packing Company and Trinity Packing Company, 98 NLRB 1261), the issue to
be decided here Cf. also Wooster Division of Borg-Wainer Corporation, 121 NLRB
1492, 1494.
1688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unlawful, as we have seen. Whether it prolonged the strike is our present concern.
On the 16th, Herschelman submitted the Company's counterproposal After
referring to several items discussed at the prior meeting, he mentioned seniority,
saying that this was to be as stated in the Company's letter of July H. Here arises
an issue of fact which can at least be deferred: The Union maintains that when
Herschelman laid the seniority issue on the table he said that it would have to be
part of any agreement reached; Herschelman on the other hand testified that he
did not say the Company would not sign unless the provisions of the July 11 letter
were concluded He maintained rather that with the Union's reaction the Company
had no opportnuity to withdraw that proposal.
While he had certainly known of the Company's letter of July 11, Piper was
apparently highly disturbed by injection of the issue into the negotiations. The meet-
ing was terminated at that point although Herschel man for the Company asked the
Federal Mediator, who continued to talk with each side separately, to bring the
union representatives back to the loom. While the effect of the supersemority issue
was thus recognized, there yet remained several admittedly important items which
had not been agreed upon and where difference between the parties was clear
Aside from items upon which agreement had tentatively been reached, there were
others which appeared to offer no great "problem " On the other hand the item of
contract termination (pension agreement termination date was also in issue) had been
considered so important that Piper had told Herschelman that he would wait until
the spring to continue negotiations rather than continue them in November 1960
and thereafter, the Company being in a better position to withstand a strike during
the slack winter season Other important items upon which the parties disagreed
related to certain insurance dependency coverage and the effective date of proposed
wage increases (Whatever the status of a no-strike no-lockout provision, it was not a
cause of disagreement during these last negotiations, and neither helped cause nor
contributed to any prolongation of the strike ) Recognizing the significance of this
issue, the General Counsel early promised to prove that the parties were close to
an agreement but that the negotiations failed and the strike continued as a result of
the insistence on the July 11 letter's provision for supersemority This promise was
not performed or supported by the proof
To this point it does not appear that the Union or the Company would have
waived, or that agreement would otherwise have been reached on, the other impor-
tant items in dispute; or that the road to an agreement was in effect barred by the
submission of the superseniority proposal. Certainly neither the union nor the com-
pany representatives so stated or indicated at the meeting of July 16
We come now to the evidence concerning the effect of the superseniority issue on
the strikers themselves. This and the activities of the Union as bargaining agent,
supra, would be irrelevant under the General Counsel's theory that "granting eco-
nomic benefits to nonstrikers converts a strike automatically." The theory is novel but
hardly persuasive Although the General Counsel in his brief argues that the test
is whether the unfair labor practice "aggravated" rather than "prolonged" the strike
(the complaint alleges these in the conjunctive), the cases which he cites include
the elment of actual prolongation, here absent At the union membership meeting
held on the night of July 16, a report was made on the negotiations, and the
various proposals by the Company were discussed According to Piper, who was
quite evidently attempting to bolster his case (he first testified that "the only discus-
sion" concerned supersemority but later that there was "some little discussion" of
the other items), most of the talk centered on superseniority and its effect on the
strike He testified that this issue was the most important reason for not entering
into an agreement with the Company, and that it was the latter's alleged insistence
on superseniority which prolonged the strike. Such insistence was by Piper presum-
ably to be distinguished from the Company's definite statement of position in its
letter of July 11 and its advertisement of that letter on July, 12, of which the strikers
had now been well aware. Here again, in the testimony by Piper and other witnesses
called by the General Counsel, we have no proof of an apparent readiness to agree
on the items which had for so long separated the parties and that such agreement
was prevented by the question of superseniority. That the latter issue "bothered" the
men is understandable; but, even if we were to accept Piper's testimony, there is no
showing that this alone bothered them and barred agreement
This is not to minimize the seriousness of the superseniority item But neither
should we minimize the seriousness and the apparent importance of the issue of
contract termination and the other items which prompted the strike in the first place.
While the instant hearing was being held a report was made of a nationwide strike
in the automobile industry which remained unsettled over two issues We need not
equate the situations or the issues, nor are we now relying on or taking judicial
notice of that other strike. But that the existence of issues other than superseniority
GRIFFIN PIPE DIV. OF GRIFFIN WHEEL COMPANY 1689
here itself prolonged the strike would in no event be far-fetched, aside from the facts
of continued and important disagreement, as noted, and the absence of proof of readi-
ness to agree on those issues.
Under the cases the General Counsel must show a "causal relationship" between
the economic strike and the later acts as a "basis for holding that the Respondent's
tiaterl conduct tended to prolong the strike." 10 As noted, no connection has here
been shown between continuance of, or tendency to continue, the strike and the
promulgation of the superseniority plan which has been found to have been an
unfair labor practice. The Board has said that "an illegal refusal to bargain during
a strike concerning economic differences which caused the strike patently prevents
a resolution of those differences and tends to prolong the strike beyond the time
when it might have been settled had there been a continuance of good-faith bargain-
ing." 11 In the instant case we have no actual refusal to bargain, the refusal as found
being on the basis of violative acts other than a refusal to meet and bargain, so that
there can be no question of prolongation or conversion of the strike because of any
such refusal as noted in Rutter-Rex and in a host of cases cited by the General
Counsel.
Aside from the absence of evidence of acts which prolong the strike and converted
it into an unfair labor practice strike, there is no evidence that whatever allegedly
thus converted the strike prevented or even delayed the offers to return to work.
Contrariwise, the Company presumably argues or suggests that what is here found
to have been a violation of Section 8(a)(5) may have hastened the termination of
the strike No such diametrically opposite finding need be made 12 It is important
to note that prolongation by insistence was allegedly caused on July 16, the infor-
mation being conveyed to the strikers that night. Two days later, the strike was
terminated To say that the strike was "prolonged" by injection of the super-
seniority issue is to claim that it would otherwise have been terminated almost
immediately after the union meeting on July 16, i.e , between that time and the
night of July 18, when notice of the termination was given to the Company. Of this
there is no proof, however brief a prolongation might be sufficient to support the
allegation The violation by the superseniority proposal has been found. But proof
of prolongation thereby or conversion on July 16 is lacking
In fact, the General Counsel limits to a period "no later than July 12, 1961," the
time of the alleged conversion.
Were we to rely on July 12 as a cutoff date, we would have to note that, so far
from prolonging the strike, the superseniority issue did not loom so important as
to be discussed on July 13, when Piper and the union committee discussed the status
of the negotiations and the items in dispute Nor does the original charge herein,
dated July 17 and filed July 18, 1961, mention the item of superseniority which
allegedly prolonged the strike, although it does recite that the Company met with
groups of employees within the plant; this omission casts light on the question whether
the superseniority issue was regarded at the time as so important and whether it
prolonged and converted the strike. Whatever Graham, the Union's staff repre-
sentative, had in mind at a later time, and why, he had not been so impressed by the
significance of the superseniority issue or the employees' reaction to it the evening
before he filed that charge. I shall not join in possible speculation that he learned
of the Erie Resistor question (decided by the Board on July 31) between July 17
and 24, when he submitted a statement which we were told indicated that super-
seniority was in Graham's mind at that time. Furthermore examination of that
statement discloses confusion of superseniority as here considered with the right of
replacements to retain their jobs Certainly the Company's assertion of the latter
right could not lead to conversion of the strike The amended charge dated Au-
gust 28 does mention and indeed emphasize superseniority.
To the argument that .the original charge but emphasized the Company's bad
faith "throughout the negotiations," there are two answers: such bad faith is no
reason for ignoring the superseniority issue, earlier, as the General Counsel has
indicated by basing his complaint and proof on that issue; and the alleged earlier
and general bad faith, which has not been proved, was apparently ignored in the
declaration that this was originally an unfair labor practice strike
As for prolongation before July 16, we have seen that the parties were negotiating
for a contract. They disagreed on various items, and again there is no evidence that
to Peyton Packing Company, Inc, 129 NLRB 1358, 1362 See also Eric Resistor Corpo-
ration, sepia
11J 11 Rutter-Rex illanufactwinq Company. Inc, 115 NLRB 3S8, 390
12 Lest this be construed as "the Trial Examiner ' s suggestion" ( see I Posner, Inc, etc,
133 NLRB 1567 , footnote 1) that he might make such a finding , I neither make nor
suggest it
1690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Company's acts which have been found violative of Section 8(a)(5) were even
the subject of the strikers' or the bargaining committee's attention (much less that
the strike was prolonged by such acts) during the negotiations and prior to the
Company's alleged insistence on July 16 that a superseniority provision be included
in the contract. The testimony that the strikers at their meeting on the evening of
July 16 were highly aroused by the report of the Company's alleged insistence on
superseniority itself tends to negate the claim of earlier prolongation.
In short, the Union and the striking employees attempted by self-help and the
exercise of economic force to obtain concessions from the Company. The law
recognizes that attempt as an economic strike. The Company withstood this exer-
cise of economic force, and to that extent may be deemed to have "prolonged" the
strike, but lawfully. The evidence does not show that the Union's efforts were pro-
longed beyond its own intendment by any unlawful act by the Company; or, in the
language of the General Counsel's brief, that an unlawful company act "became
the dominant or paramount issue in the strike."
In making this finding I do not rely on the statement by Graham, made to a re-
porter, that ,the strike was called for economic reasons. There is no issue as to this,
and it is of little value as proof of reason for later continuance of the strike, especially
in the face of modification of demands during subsequent negotiations with the
Company.
The finding that the strike was not prolonged and converted as alleged is made
before and without determination of the issue of fact whether the Company actually
insisted on inclusion of the superseniority provisions as in its letter of July 11. Sug-
gesting that it would have so insisted a outrance is the fact that it had received legal
advice concerning possible liability if it reneged on that letter and the further fact
that, in the hope that "something could be worked out," it had polled those who
were working on July 15; and also that it had received a negative reply to its query
concerning withdrawal of its promise to them. On the other hand, Herschelman's
request that the meeting be continued suggests a willingness to negotiate rather than
to insist. Further, it is clear that, whether insisted upon or not on July 16, the
superseniority provision was not discussed at that time. However justifiable the
Union's outrage over the issue, we can hardly say it has been tested by an attempt
to negotiate concerning it. We might thus say no more than that the Company
would probably have insisted on superseniority; not that it actually did so insist.
That it did not insist, or did not get to the point of insistence, at the July 16 negotia-
tions is suggested by the fact that although Piper had in an earlier statement de-
scribed those negotiations and said that the Company had at that time laid the super-
seniority issue on the table, he did not at that time refer to any insistence that such
a provision be included in the contract. True, Piper at the hearing testified to such
insistence; but we have already seen that he was not altogether reliable.
In this connection I have not overlooked Beckman's and Herschelman's optimistic
evaluation at the July 14 meeting and similar statements concerning the July 14 and
16 negotiation meetings in the Company's letter of July 17. These company ap-
praisals or evaluations are significant; but they do not overcome the contrary fact
of continued disagreement thereafter on other important issues and the lack of actual
proof or prolongation because of the superseniority question, as noted supra What
would allegedly have settled the strike earlier or prevented it is not necessarily effec-
tive under subsequent conditions; and the proposals were thereafter modified in the
Company's favor but were still not acceptable or agreed upon as late as July 16,
disagreement continuing on several important items aside from the question of super-
seniority. Since these other items effectively prevented agreement and since they
had prompted the strike, any speculation that the Company would probably have
insisted on superseniority is quite unnecessary. We may here quote from a related
situation in a recent case: 13 "Whether the Union would insist on bargaining on a
broader basis was not tested and is highly speculative." Certainly it cannot here be
said, as in Erie Resistor, that with respect to the other issues, "agreement seemed
imminent." The facts there noted concerning imminence of an agreement and the
decision to continue the strike because of superseniority are markedly different from
those in the instant case.
In any event, as noted, and for another reason, the question whether the Com-
pany thereafter insisted on superseniority as a sine qua non appears to be so im-
material as not to require determination. Certainly as late as the July 16 meeting
it had said that it would consult the men then working, for possible waiver of its
commitment to them. If the announcement and granting of superseniority was itself
a violative act, continued insistence thereon although violative 14 would not affect the
L'ynitable Life Insurance Company , 133 NLRB 1675
Woos ter Div,szon of 1?oig -1Yoierr Corporation, 113 NLRB 1288, 1289
GRIFFIN PIPE DIV. OF GRIFFIN WHEEL COMPANY 1691
finding or remedy, as was agreed. If on the other hand the measure of superseniority
declared and granted were not violative, later insistence thereon would not be so
either. As for prolongation and conversion of the strike either by the letter of July 11
or by any insistence through July 16, we have seen that there was no proof of such
prolongation.
Under the disposition here made, we need not concern ourselves with the Com-
pany's claim that a dwindling picket line reflected the strikers' lack of enthusiasm,
which prompted their decision on July 18 to terminate the strike.
C. Return and reinstatement of strikers
Testimony was received concerning details of efforts to put employees back to
work and the procedure followed. It is not claimed nor does it appear that this
procedure was objectionable or unlawful or that with the possible exception of a few
individuals, whom we shall now consider, the Company discriminated against the
strikers in the process of rehiring returning strikers if this was not an unfair labor
practice strike. In fact the General Counsel early declared that he does "not con-
tend that the Company . . . failed to rehire economic strikers." Those who had
not been replaced were reinstated; the other were permitted to bid on unfilled jobs
"in accordance with Griffin's usual method" of making assignments. No question
has been raised concerning the general procedure followed. Thus whether the strike
was converted on July 16 or an earlier date, we need not concern ourselves with
occasional testimony and a stipulation concerning earlier hiring of replacements
who started to work on July 17.
Neither is there any real issue concerning applications for reinstatement. Starting
with evidence of both blanket and individual applications, the issue is whether there
was an unlawful refusal to reinstate.
In addition to this testimony concerning reinstatement of strikers generally we
have evidence concerning reemployment of a few named individuals. While in
some cases the poststrike classification differed from the employee's prestrike classifi-
cation, it does not appear that in any case reinstatement was not made to at least a
substantially equivalent position. Furthermore, and aside from what will now be
noted 15 with respect to these individuals, reinstatement of economic strikers to
different positions is not violative where a lawful reinstatement procedure is followed.
A change noted with respect to eight employees referred to in a group is that
whereas prior to the strike they had been employed on the first shift, they were as-
signed to the second shift on their return. As did all other second-shift employees,
these eight received a 10-cent per hour differential in addition to the job rate. One
of the issues in dispute during the negotiations was the question of rotation of shifts,
the Union objecting to such rotation. But this shows no more than that change from
one shift to another periodically may have been objectionable. It does not indicate
that the second shift with its shift differential was less desirable than the first shift.
Thus it does not appear from the factual stipulation received concerning these eight
employees that even had they been unfair labor practice strikers, they were improp-
erly reinstated. Neither does it appear that the Company could not have lawfully
transferred any employee from one shift to another.
It should be noted in this connection that Cook and Doty, each of them strikers
and members of the Union's negotiating committee, testified that their poststrike
employment differed from the job or jobs which they held before the strike. Yet
neither claimed any disadvantage or loss in this connection. Near the close of the
hearing Girton, one of the eight mentioned above, testified in another connection;
but, like Cook and Doty, he did not suggest any disadvantage in the fact that he was
assigned to the second shift instead of to the first. (Insofar as pay and work classifi-
cation are concerned, Girton was put back to work in the same job and at the same
rate of pay after the strike and was later promoted.)
We should here note a stipulation which would be relevant ( as in the case of em-
ployee Anderson, who failed to bid on any unfilled job) were this found to be an
unfair labor practice strike. Two strikers, Knouse and Steffen, were offered different
and lesser paying jobs, which they refused when under the nondiscriminatory system
followed of reinstating strikers according to seniority, they were not successful in
bidding for better jobs.
One additional item needs to be noted in this connection. Striker Johnson was
three times notified by the Company to return for work. The position which he was
to get was not discussed, but he was told that it would be on the second shift, and
he replied that he would not work on that shift. This does not in itself prove that
16 In the absence of evidence of a discriminatory reinstatement procedure, a decision
that this was an economic strike makes consideration of these facts unnecessary.
641795-63-vol. 136-108
1692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the second shift with its shift pay differential was generally considered less desirable
than the first shift and that assignment of certain strikers to the second shift instead
of the first when they returned to work was a denial of substantially equivalent
employment . We do not know whether the employees preferred the first to the
second ; or whether they, or some, preferred the second shift. Here reference can
be made to the testimony concerning the negotiations . It appears that the Union
requested that the Company eliminate shift rotation , and an agreement on this point
was later reached . If anything in this respect , the Union 's position suggests that the
employees' concern generally was with rotation or changes in shift , not that some
employees were being relegated to unequivalent jobs or working conditions. The
shift pay differential exists to "sweeten " what some may consider less desirable hours,
and is itself a measure of what has been agreed upon to make given jobs on different
shifts substantially equivalent.
Aside from the question whether "substantially equivalent" is to be determined
by what, in the absence of proof, might be different personal preferences , we do not
know either whether prestrike assignments to the first shift were based on or co-
incided with the preference of those so assigned. It is clear that Johnson was not
offered the same job which he held before the strike. But left only with the evidence
of his own preference for the first shift, I would not find that second -shift assign-
ments are not substantially equivalent to first-shift assignments generally, or that,
whatever Johnson 's preference , the job offered him was not itself substantially
equivalent to that which he had before the strike.
In any event , from the fact that Johnson did not report in response to at least one
earlier notice from the Company ( Counsel objected to testimony concerning a tele-
phone call), we might surmise that he was not losing wages because of his employ-
ment elsewhere . A finding of violation in this case based on a determination that
the Company did not offer him substantially equivalent employment would, prac-
tically speaking, result in an additional and broad cease and desist provision because
of this single instance where so many had been involved and lawfully dealt with by
the Company.
With respect to employee James, there is a dispute as to whether , after he re-
turned to work on the very job which he had held before the strike , he was dis-
criminatorily discharged . When it was pointed out at the hearing that there is no
allegation of discriminatory discharge , we were told that the discharge shows that
he was never properly reinstated ! This is not an instance of unreasonable or in-
sufficient notice to return ; James had returned. Certainly he did not ask for addi-
tional time before or at the time of his return . I find that the Company fulfilled
its obligation to reinstate James.
The General Counsel in his brief for the first time claims that maintenance of a
seniority roster itself constitutes discrimination in violation of Section 8(a) (3) of
the Act. But the only discrimination alleged in the complaint is that in connection
with the failure to reinstate strikers . The superseniority provision and insistence
thereon , although detailed in the complaint , are cited as a violation of Section
8(a)(5), the provision concerning collective bargaining , and of Section 8(a)(1),
the provision against interference with employees ' rights in connection with con-
certed activities ; not of Section 8(a)(3), which bars discrimination as now claimed.
Further , since it does not appear that any action has been taken on the basis of a
seniority roster or that there has been implementation in any manner , of any such
roster, the remedy recommended infra is adequate to cover the violation found.
Thus while the remedy for violation of Section 8(a)(1) may, where warranted, be
as extensive as that where Section 8(a)(3) is violated,16 there is here neither need
nor justification for such a remedy. The threat of discrimination in the promulga-
tion of and insistence on superseniority has been found and can be remedied; what-
ever might be the need in another situation , there is none here which requires a find-
ing of discrimination or a restoration of employees ' rights beyond that which will
be recommended , there being no occasion either to reinstate or to make whole for
loss of pay 17
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company set forth in section II, above, occurring in connec-
tion with the operations described in section I, above, have a close, intimate , and sub-
stantial relation to trade, traffic, and commerce among the several States , and tend
to lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
1" Rome Specialty Co., Inc., 84 NLRB 55, 57.
17'Cf. California Date Growers Association, 118 NLRB 246.
GRIFFIN PIPE DIV. OF GRIFFIN WHEEL COMPANY
IV. THE REMEDY
1693
Having found that the Company has engaged in and is engaging in certain unfair
labor practices affecting commerce, I shall recommend that it cease and desist there-
from and take certain affirmative action in order to effectuate the policies of the Act.
It has been found that the Company, by announcing and granting superseniority
on layoffs to nonstriking employees and to those who returned or replaced strikers
during the strike, failed and refused to bargain collectively in violation of Section
8(a)(5) of the Act, and interfered with, restrained, and coerced its employees in
violation of Section 8(a)(1) of the Act. I shall therefore recommend that the
Company cease and desist therefrom and from any like or related conduct; and
that it rescmd said action and restore to all employees or grant to them the seniority
they would have enjoyed absent such superseniority.
For the reasons stated in the subsection entitled "Return and reinstatement of
strikers," I shall recommend that the complaint be dismissed insofar as it alleges
the discriminatory failure and refusal to reinstate employees in violation of Section
8(a)(1) and (3) of the Act.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. United Steelworkers of America, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
2. All of the Company's production and maintenance employees, but excluding
all office clerical employees, guards, research and professional employees, and
supervisors as defined in the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of the Act.
3. United Steelworkers of America, AFL-CIO, was on June 30, 1960, and at all
times since has been the exclusive representative within the meaning of Section
9(a) of the Act, of all employees in the aforesaid unit for the purposes of collective
bargaining.
4. By announcing and granting superseniority on layoffs to nonstriking employees
and to those who returned or replaced strikers during the strike, thereby failing and
refusing to bargain collectively with United Steelworkers of America, AFL-CIO,
the Company has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (5) of the Act.
5. By such refusal to bargain, thereby interfering with, restraining, and coercing
its employees in the exercise of rights guaranteed in Section 7 of the Act, the Com-
pany has engaged in and is engaging in unfair labor practices within the meaning
of Section 8(a)( I) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
7. The Company has not engaged in unfair labor practices within the meaning
of Section 8(a)(3) of the Act.
[Recommendations omitted from publication.]
APPENDIX A
COUNCIL BLUFFS, IOWA,
July 11,1961,
To All Employees of Griffin Pipe Division:
As you know, the United Steelworkers of America, AFL-CIO, called a strike
against Griffin Pipe Division on behalf of Local 3141 on July 6, 1961.
The Griffin Pipe Division has the right under Federal Law to protect and continue
its business by replacing the jobs left vacant by strikers immediately. Instead, it
has chosen to give all employees an opportunity to return to work even though this
is the height of pipe shipping season with numerous customer commitments to be met.
However, the Company must now make the following announcement:
1. It is the intent of the Company to seek replacements for all employees
whose jobs remain unfilled as of 7:00 a.m., Thursday morning, July 13, 1961.
2. At 8:00 a.m., Thursday, July 13, 1961 all unfilled jobs will be put up for
bid on the basis of ability and seniority. The balance of the jobs unfilled through
bidding will be filled by new hires. Hiring will continue until all vacant jobs
are filled.
3. With the Griffin Pipe Division relatively new to the pipe industry there
is an obvious necessity to protect customer commitments in order to preserve
our business position and corporate investment. In brief, the Company must
1694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
continue production to the fullest possible extent to protect and continue its
business.
A. In order to retain the employees who have remained at work or
returned to work , and obtain replacements , the Company must adopt a
seniority policy that will protect the job security of the employees who
have remained at work or return to work, and of the replacements for jobs
unfilled as of 8:00 a.m., Thursday , July 13, 1961 , if such replacements.
desire to become permanent employees . Effective 8:00 a.m., Thursday,
July 13 , 1961, any man who return to work after 7 : 00 a.m ., Thursday,.
July 13 , 1961 , will in event lay-off becomes necessary be laid off ahead of
men who remained at work or returned to work before such time, and
replacements desiring to become permanent employees who are hired be-
fore the man returns to work.
B. Men whose jobs are filled by successful bidders or by replacements
or whose jobs have been abolished for economic reasons will be no longer
considered as employees , as provided by Federal Law, unless reinstated
upon return to work in any vacant job that remains unfilled at the time
reinstatement is sought.
Very truly yours,
(S) FRANK MAROLD,
Vice President and Assistant-General Manager.
West Side Carpet Cleaning Co . and Frank J. Weber. Case No.
8-CA-2407. April 30, 1962
DECISION AND ORDER
On December 29, 1961, Trial Examiner Henry S. Sahm issued his
Intermediate Report herein, finding that the Respondent had engaged
in unfair labor practices in violation of Section 8(a) (3) and (1) of
the Act and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the Intermediate Report at-
tached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Leedom].
The Board has considered the Intermediate Report, the exceptions,
the brief, and the entire record.' The Board affirms the Trial Exami-
ner's rulings and adopts his findings, conclusions, and recommended
Order.2
'The Respondent 's request for oral argument is hereby denied as the record and the
Respondent's brief adequately present the issues and positions of the parties.
2 We are satisfied that the contention of the Respondent that the Trial Examiner was
either biased or in error is without merit . See Aerosonic Instrument Corp ., 116 NLRB
1502, affd. 249 F. 2d 959 ( C.A. 6). Moreover , we do not overrule a Trial Examiner's
resolutions as to credibility except where a clear preponderance of all the relevant evi-
dence convinces us that the Trial Examiner 's resolution was incorrect . No such conclu-
sion is warranted in this case . See Standard Dry Wall Products , Inc., 91 NLRB 554.
The following paragraph is added to the notice attached to the Intermediate Report
marked "Appendix A": Employees may communicate directly with the Board's Regional
Office , 1501 Euclid Avenue, Cleveland 15, Ohio, Telephone Number Main 1-4465, if they
have any question concerning this notice or compliance with its provisions.
136 NLRB No. 121.