Gulf States Mfg., Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1977

230 N.L.R.B. 558 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gulf States Manufacturers, Inc. and International
Brotherhood of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers and Helpers, AFL-CIO.
Cases 6-CA-6007, 6-CA-6049, and 6-CA-6151
June 28, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
On February 24, 1977, Administrative Law Judge
Michael O. Miller issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief. The General Counsel
filed cross-exceptions and a supporting brief and an
answering brief in response to Respondent's excep-
tions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Gulf States
Manufacturers, Inc., Starkville, Mississippi, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
I The Respondent and the General Counsel have excepted to certain
credibility findings made by the Administrative Law Judge. It is the Board's
established policy not to overrule an Administrative Law Judge's resolutions
with respect to credibility unless the clear preponderance of all of the
relevant evidence convinces us that the resolutions are incorrect. Standard
Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3,
1951). We have carefully examined the record and find no basis for
reversing his findings.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge: This
matter was heard in Starkville, Mississippi, on 11 days
230 NLRB No. 81
between July 19 and September 9, 1976, based upon
charges which had been filed on February 17, March 11,
and May 17, 1976, and amended on various dates
thereafter, and a complaint which issued on April 20, and
was amended on June 28, July 2, 1976, and at hearing
herein. The complaint, as amended, alleged that Gulf
States Manufacturers, Inc., herein Gulf States or Respon-
dent, violated Section 8(a)(l), (3), and (5) of the National
Labor Relations Act, as amended, by interfering with,
restraining, and coercing its employees in the exercise of
their statutory rights, by laying off or failing to properly or
timely recall or reinstate employees, and by bargaining in
bad faith with the International Brotherhood of Boilermak-
ers, Iron Ship Builders, Blacksmiths, Forgers and Helpers,
AFL-CIO, herein the Union. Respondent's timely filed
answer and amendments thereto denied the substantive
allegations of the complaint.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, and to argue orally. Comprehensive briefs were
filed by General Counsel and Respondent and have been
carefully considered.
Upon the entire record, together with my careful
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
1. THE RESPONDENT'S BUSINESS AND THE UNION'S
LABOR ORGANIZATION STATUS; CONCLUSIONS OF LAW
Respondent, a corporation, is engaged at Starkville,
Mississippi, in the manufacture of preengineered metal
buildings. Jurisdiction is not in issue. I find and conclude
that Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
I find and conclude that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. MOTIONS
At the opening of the hearing herein, Respondent moved
to dismiss certain 8(aXl) and (3) allegations which had
been added to the complaint by amendment dated July 2,
1976, on the basis that, having allegedly occurred in
September and October 1975, they were time-barred under
Section 10(b) of the Act,i and, further, that the amendment
constituted an abuse of the Regional Director's discretion
in that the allegations contained in said amendment had
previously been the subject of an unfair labor practice
I Sec. 10(b) provides, inter alia:
... That no complaint shall issue based upon any unfair labor
practice occurring more than six months prior to the filing of the charge
with the Board ....
558
GULF STATES MANUFACTURERS, INC.
charge, Case 26-CA-5812, which had been withdrawn with
the Regional Director's approval pursuant to an adjust-
ment reached by the parties.2 General Counsel moved to
amend the complaint to allege a revocation of the Regional
Director's approval of the withdrawal of Case 26-CA-5812
and to include that charge as a further predicate for the
substantive allegations of the complaint. At hearing, I
denied Respondent's motion to dismiss on the basis of the
limitations period and granted General Counsel's motion
to amend the complaint. Respondent renewed its motions
in its brief. Upon consideration, I adhere only to the first of
my rulings. The allegations of the July 2, 1976, amendment
to the complaint are supported by the original charge in
Case 26-CA-6007, filed February 17, 1976, which con-
tained allegations of similar violations of Section 8(a)(XI),
(3), and (5), occurring specifically between October I and
December 21, 1975, and the usual printed "catchall"
language. 3 This charge, timely in relation to the com-
plaint's allegations, is broad enough to support those
allegations. N.LR.B. v. Fant Milling Company, 360 U.S.
301 (1959). Moreover, the charge in Case 26-CA-6007 was
amended on July 2, 1976, to specifically include the
disputed allegations and, as the Board noted in Eugene and
Veronica McManus, co-partners d/b/a Sunrise Manor
Nursing Home, 199 NLRB 1120, 1121 (1972): "an amended
charge, although filed more than 6 months after the
occurrence of the unfair labor practice, will be timely if it
relates to an unfair labor practice inherent in or connected
with the original charge." The amendment was so con-
nected. Respondent asserted that reinstitution of the
allegations contained in the withdrawn charges, as part of
the later filed charges, should not be permitted because the
withdrawal was part of a "non-Board" adjustment and that
such "refiling" would discourage voluntary settlements. On
the same grounds, Respondent asserted that the Regional
Director's revocation of his approval of the Union's
withdrawal of its charges and the reinstitution thereof
constituted an abuse of discretion.4 I find no abuse of
discretion and deny Respondent's motion to strike those
complaint allegations which had been encompassed within
Case 26-CA-5812, the withdrawn charge, and the "non-
Board settlement." The Regional Director was not party to
that settlement and "any agreement which Respondent and
the Union may have entered into and which resulted in the
withdrawal of these prior charges was a private agreement
which does not estop the Board to proceed on any new
charges alleging the same conduct as the withdrawn
charges." John F. Cuneo Company, 152 NLRB 929, 931, fn.
4 (1965), and cases cited therein.
As the allegations which had first been raised in Case 26-
CA-5812, were properly pleaded in the complaint upon the
subsequent charge in Case 26-CA-6007, reinstatement of
the withdrawn charge in the earlier case was unnecessary.
2 General Counsel's posthearing motion to strike from Respondent's
brief a reference to the settlement and withdrawal which "the Regional
Office instigated and approved" is granted in part. The record contains no
evidence that the settlement was instigated by the Regional Office or that
the settlement, as distinguished from the withdrawal request, was approved
by the Regional Director. As pointed out by Respondent's opposition to
that motion, however, the record does contain a stipulation pertaining to the
withdrawal of that charge. Moreover, the stipulation of the Union and
Respondent wherein it was agreed that Case 26CA 5812 would be
withdrawn, in return for Respondent's withdrawal of certain objections to
an election, is in the record as part of Resp. Exh. I.
Moreover, I have reviewed my ruling in regard thereto, and
the pertinent authorities, and now deem the reinstitution of
that charge to have been improper. The Board permits
reinstatement of withdrawn charges beyond the limitations
period, where such reinstatement is warranted by equitable
considerations. Silver Bakery, Inc. of Newton, 150 NLRB
421 (1964). 5 The equitable considerations deemed suffi-
cient in Silver Bakery and subsequent cases have involved
withdrawals based upon erroneous or inaccurate advice
from Regional Office personnel. No such situation exists
herein. The only basis asserted to justify reinstatement of
the charge is Respondent's subsequent illegal activity. Such
may be sufficient to warrant setting aside a settlement
agreement to which the Agency was a party. I do not
believe it gives rise to sufficient equitable considerations to
warrant a circumvention of the statutory limitations
period.
Ill. REPRESENTATION ELECTION AND CERTIFICATION
The Union filed a petition on July 21, 1975, seeking to
represent Respondent's employees in the following appro-
priate collective-bargaining unit:
All production and maintenance employees, plant
clerical employees, full-time and regular part-time
truckdrivers and leadmen employed at Gulf States'
Starkville, Mississippi, location, excluding all office
clerical employees, draftsmen, guards and supervisors
as defined in the Act.
The election was conducted on September 12, 1975, and
a majority of the employees voting in said election voted
for representation. On November 11, 1975, following
withdrawal of Respondent's objections to the election and
the Union's unfair labor practice charge (discussed supra),
certification issued. The Union has continued to be the
exclusive collective-bargaining representative of these
employees.
IV. THE UNFAIR LABOR PRACTICES
A. Blaming the Union for the Denial of Wage
Increases
Sometime during the spring of 1975, because of adverse
economic conditions and prior to the start of any union
activity, Respondent announced and implemented a "wage
freeze." Other than increases due to promotions, neither
employees nor supervisors received wage increases thereaf-
ter until February 1976. After the advent of the Union,
however, various statements were attributed to manage-
ment which, General Counsel claims, unlawfully placed the
3 "By these and other acts, the above-named employer has interfered
with, restrained, and coerced employees in the exercise of the nghts
guaranteed in Section 7 of the Act."
4 I withheld ruling on the latter question.
The Board has not accepted the view of the First Circuit Court of
Appeals, denying enforcement. N.LR.B. v. Silver Bakery, Inc., 351 F.2d 37
(1965). See Communication Workers of America, Local 1127, 208 NLRB 258,
264 (1974). 1 am, of course, required to follow the Board's decision absent
such acquiescence.
559
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
onus for Respondent's refusal to grant raises upon the
Union.
On or about September 11, 1975, Clayton Richardson,
Respondent's general manager, delivered a speech to the
employees. He stated, inter alia:
Now I want to move on and I want to talk to you about
the freeze for just a minute, because there's a little
confusion there. Do you know that you're under two
freezes right now? You're under two. You've got the one
that was put on by the company because our business
was down. We put a freeze on. Business was bad. Now
the second freeze that was put on was put on when we
received a petition on July 29 and at that time
everything was frozen by the government. Now this
freeze that the government put on will stay on until (1)
the union loses the election (2) if the union got in and
the company agreed to a contract.
Richardson spoke of a rumor to the effect that the Union
would wait until spring to negotiate. He pointed out the
negotiations at another company took 19 months, added
that to the period since the last raise and to the number of
months until spring, and indicated that there might be as
much as 41 months from the last raise to the next if the
Union won the election.
Approximately 2 weeks after the election, Joe Malone
asked his supervisor, John Hayes, about a raise. Hayes told
him that the Union had the wages frozen. Malone pressed
for an explanation and Hayes stated, "Probably if you
hadn't got the union in, you probably would have got your
raise." Malone disputed this and Hayes told him that, if he
would get a group of people to sign a "certificate" to vote
the Union out, he might be able to get his raise.6
Sometime in October, employee Jack Griffith asked John
Hayes when there would be a resumption of wage
increases. According to Griffith, Hayes replied that he
didn't know, that "the Union had the wages frozen." Hayes
recalled that he told Griffith that the freeze was still on and
would remain in effect until the Company and the Union
came to an agreement.
In November 1975, Richard Harris told Supervisor
Erven Perrigan that he had heard that the freeze was off.
He asked about a raise. Perrigan told him, "Well, the
Union's got things tied up now." Employee Phillip Parker
related that he asked Perrigan about a wage increase, in
January 1976. Perrigan, he testified, told him that the
Company could secure union approval for his raise if it
wanted to and that he probably would not get a raise until
the contract was negotiated. Perrigan admitted having
conversations in regard to raises with both Harris and
Parker. He denied that he told any employee that they
could not receive a wage increase because of the Union,
but admitted that he told employees that their wages would
be determined in negotiations. The testimony of Harris and
Parker was credibly offered. I was less favorably impressed
6 Malone's testimony was corroborated in all respects except the date
thereof by Willie Holmes, his helper. Hayes denied the Malone-Holmes'
version and testified that he told Malone that wages were still frozen and
that he had been instructed not even to fill out wage increase forms. Malone
then allegedly asked for such a form which he would fill out himself and
asked who would have to sign it. Hayes replied, "A bunch of folks has got to
with Perrigan's testimony and conclude from the compara-
tive demeanors and from inconsistencies in Perrigan's
direct and cross-examination testimony that Harris and
Parker's recollections are the more accurate.
Employee Steven Carmichael related a conversation with
Supervisor Joe Starnes, on February 12, 1976. After
discussing whether the employees would be going on strike
and how the employees would pay their bills if they did,
Starnes allegedly stated, "if it hadn't been for the Union
freezing our wages, that we probably would have already
had a raise." Starnes testified that Carmichael frequently
asked him for more money. He denied, stating flatly that
the Union had the wages frozen but admitted that he told
Carmichael that during negotiations everything was tied up
and he could not get any wage increases. In view of the fact
that, at the time of this conversation, the parties had been
engaged in approximately 3 months of bargaining, the last
several sessions of which had dealt with wages, and noting
certain inconsistencies between Carmichael's affidavit and
his direct and cross-examination in regard to whether
Starnes referred to a wage freeze because of union activity
or imposed by law, I credit Starnes.
Where an employer places the onus for its own failure to
grant or consider wage increases upon the Union and the
employees' union activities, it may be considered to have
threatened employees with economic loss because of their
union activities or, more generally, to have interfered with
employee rights under Section 7 of the Act, in violation of
Section 8(a)(). American Commercial Bank, 226 NLRB
1130 (1977); Aircraft Hydro-Forming, Inc., 221 NLRB 581
(1975). In the instant case, Respondent had a practice of
granting periodic raises; that practice, however, had been
interrupted by Respondent's self-imposed "wage freeze."
Respondent's freeze was occasioned by poor business
conditions and, presumably, could have been lifted at any
time business improved. On top of its own freeze,
Respondent announced that there was a second freeze,
caused by the filing of the petition. That freeze, Richardson
told the employees, would remain until the Union lost the
election or lengthy negotiations were completed. It was
thus made clear to the employees that, even if Respondent
were to lift its self-imposed freeze, their union activity
would prevent the periodic raises from being resumed. "It
is well established that during an organizational campaign
an employer must decide whether or not to grant
improvements in wages and benefits in the same manner as
it would absent the presence of the Union." Sinclair &
Rush, Inc., 185 NLRB 25 (1970). Richardson thus misrepre-
sented the applicable law. Similarly, the conversations
between Hayes and Malone, Hayes and Griffith, Perrigan
and both Harris and Parker and Starnes and Carmichael,
all blamed the Union for the omission of the periodic wage
increases. No mention was made in these latter conversa-
tions of the earlier economic freeze; implicit in the various
statements was the indication that, but for the Union or the
negotiations, the employees would be receiving their
sign it." On cross-examination, Hayes acknowledged that he told Malone
that the Company and the Union would have to agree to any wage
increases. Hayes' version of the conversation appeared strained and
improbable; I therefore conclude that the incident occurred in the manner
related by the more credibly offered testimony of Malone and Holmes.
560
GULF STATES MANUFACTURERS, INC.
periodic raises. Further, as I have found, Hayes solicited an
employee to circulate a petition to eliminate the Union. By
such statements, I conclude, Respondent has interfered
with, restrained, and coerced its employees in violation of
Section 8(aX 1) of the Act.
B. Changes and Threatened Changes Resulting
From the Union Activity
In the course of his preelection speech, Richardson told
the employees that in the past when work was slow
Respondent had given consideration to the traveling
arrangements of the employees when they had short days
or layoffs. He indicated, however, that in unionized plants
no such consideration is given; "When the work runs out,
you hit the clock and go home." He told the employees to
think of the kinds of problems "that's going to be to you
fellows who ride together in a car pool."
On the morning of September 15, 1975, the Monday
following the election, Supervisor Starnes held a meeting of
all of his shipping department employees. According to the
testimony of employee Steven Carmichael,7 Starnes told
them "that he was going to tell us the rules and regulations
again and explain them to us, because they would be
strictly enforced." They were prohibited from using
company telephones for outgoing calls or receiving person-
al calls unless of an urgent nature. He prohibited them
from leaving their work areas without permission and
directed them to wear their safety clothing and glasses or
be subject to discipline. The checkers were told to "tighten
down." In each of these areas, Starnes had been lax or had
tolerated some deviation from existing company rules.
Starnes attributed his laxity to a desire to avoid alienating
the employees during the preelection period. Starnes
further told the employees in his department that "Gulf
States would no longer make work for us. If we ran out of
something to do sometimes, we would be sent home rather
than sweeping or things like that, or cleaning up the yard."
The complaint alleged that between September 15 and
October 1, 1975, Respondent laid off approximately 19
employees, because of their union activity. Carmichael
testified that, in the afternoon of September 15, he and Tim
Harrelson were sent home, by Starnes, for the remainder of
the day, notwithstanding that the work which Starnes had
assigned them to do had not been completed. Others, he
testified, were also sent home that day. Roy Sims testified
that he was sent home, with several others, for a portion of
the day on September 17, allegedly for lack of work. He did
not dispute his supervisor's contention that work had run
out. On October 1, 1975, Edgar Thompson, a loader in
Starnes' department, and two other employees, were
sweeping and cleaning up and were sent home a couple of
hours early. According to General Counsel's Exhibit 7, a
total of 13 employees had been sent home early on
September 15, I was laid off all day on September 16, 3
were laid off for 3 hours on September 17, and 3 were sent
home early on October 1, 1975. That same exhibit
evidences that on 12 days in 1974, there were complete, or
I Corroborated by Edgar Thompson and not substantially contradicted
by Starnes.
R In reaching my conclusion on this issue, I deem it unnecessary to
determine whether the specific individuals laid off were known union
nearly complete, shutdowns for the entire day. In 1975,
from February to May, there were 13 such days. Addition-
ally, on 7 of those 13 days, some of the employees were laid
off for a portion of the day while the rest of the work force
was laid off for the entire day. There were no whole or
part-day layoffs from May 16 until September 15, 1975.
Based upon the foregoing, I conclude that, immediately
following the election, Starnes amplified upon the theme
which Richardson had opened in his preelection speech
and threatened to change, or changed, the rules under
which the employees had been working and the privileges
which they had been enjoying prior to the election. He also
threatened them with diminished work opportunities.
These threats and changes were related in both time and
intent to the election in which the Union had just
prevailed. Accordingly, I conclude that, by Starnes' threats
and by the changes he implemented, Respondent coerced
its employees in violation of Section 8(a)X ).
I further conclude that the layoffs which occurred
between September 15 and October 1, 1975, were in
reprisal for the employees' selection of the Union and thus
violative of Section 8(aX3) of the Act. It so concluding, I
note particularly Richardson's warning that just such a
result would follow a union victory, Starnes' statement in
regard to the same, the proximity of the layoffs to the
election and the threats, Carmichael's testimony that the
work he had been assigned to do had not been completed
before he and Harrelson were sent home, and the change in
the pattern from Respondent's prior layoffs. In those prior
layoffs, virtually all employees were laid off for the full day
while a few employees were permitted to remain or work a
partial day; the record does not reflect the selection out of
small numbers of employees to be sent home in those
earlier incidents.8
Employee Richard Harris testified that, on a day shortly
after the election, his supervisor, Perrigan, came over to
where he and several other employees were discussing the
election. Perrigan told them, "You all have let me down."
When Harris asked for an explanation, Perrigan said,
"Well, I can't help you'ans any more. You'll have to go
through your stewards and your President and everything
with the Union now." Perrigan admitted telling a group of
employees that he felt they had let him down, but
unconvincingly claimed that his remark related to the poor
quality of work they had been performing. Perrigan did not
specifically deny the "I can't help you'ans anymore"
remark; his answers in regard thereto were nonresponsive.
I therefore credit Harris, notwithstanding that his testimo-
ny of this conversation was not corroborated by any of the
other employees who were present. Perrigan's remark,
withdrawing whatever assistance he may have been able to
give the employees in the past, because they had chosen to
be represented by the Union, I conclude, interfered with
the employees' Section 7 rights, in violation of Section
8(aXI).
adherents. It is sufficient that the evidence established that the action was
taken against employees generally in reprisal for the outcome of the
balloting.
561
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Miscellaneous Prestrike 8(a)(1) Allegations
Richard Harris testified that, on the day before the
election, Perrigan asked him how he felt (presumably about
the Union). Harris' helper, Wright, was present. Harris,
who had worn a union insignia every day prior to the
election, did not answer him. Perrigan did not deny this
testimony, but did deny that he asked Wright how he felt
about the Union. In light of Harris' open support for the
Union, even if Perrigan asked the vague question set forth
above, I would not deem such questioning to constitute
unlawful interference.
Phillip Quinn has worked for Gulf States since 1973 and,
from time to time, had been permitted to take truckloads of
scrap lumber for use as firewood. He did not participate in
the union activity prior to the election but began to wear a
union insignia thereafter. Around the end of September, he
asked Frank "Buck" Oakes, warehouse superintendent, for
authorization to remove a load of scrap. Oakes said he
would check into it and get back to Quinn. According to
Quinn, he repeated his request a couple of days later and
Oakes told him, "I don't know about that ... Didn't I see
you with a little tag on? ... That little thing on your shirt
about the Union." Quinn replied affirmatively and Oakes
stated, "Well, I don't know. I started writing it but I don't
think I'll issue none." Oakes admitted refusing Quinn
permission to remove a load of wood but claimed, contrary
to Quinn, that the wood was not scrap but usable 4-by-4-
inch lumber which Quinn wanted for building, not
burning. He denied refusing permission because of Quinn's
union insignia. Subsequent thereto, according to permis-
sion slips introduced by Respondent, employees, including
known union activists, were permitted to remove scrap
lumber. While the matter is not free from doubt, I credit
Oakes and recommend that this allegation be dismissed. In
so concluding I note that, in another area, Quinn's
testimony regarding when he first heard of the strike plans,
I found Quinn's testimony improbable and difficult to
accept. I note also the subsequent granting of permission to
union supporters to remove scrap wood.
Roy Sims, an employee and president and business
manager of the Union Local, had a conversation with
Maintenance Superintendent Thomas Howard during
October 1975. As Sims recalled the conversation, after
discussing some work-related matters, Howard said, "By
the way, I didn't appreciate what Johnny [Oswalt] done."
Sims asked if Howard was referring to charges that he had
filed and Howard replied, "Yeah ... here I helped him get
his job back ... and he does something to me like this."
Howard said that he did not want anyone working for him
that "would do him like that."
Oswalt had been among 13 employees named as
discriminatorily laid off on September 15, 1975, in the
charge filed on September 17, 1975, in Case 26-CA-5812.
He had earlier been laid off and had lost his seniority.
According to Howard, when he hired Oswalt back in July,
Oswalt had volunteered that he was procompany. Howard
denied the statement attributed to him by Sims and denied
that he was even aware of the charge naming Oswalt until
an NLRB Field Examiner came to the plant to take
affidavits, subsequent to the conversation with Sims.
Howard testified that he had been told that Oswalt had
told other employees in a union meeting that Howard had
only hired him back because he was procompany. It was to
this statement that Howard was referring when he told
Sims that he did not appreciate what Oswalt had done. He
denied saying that he did not want such a person working
for him. Noting that the charge in Case 26-CA-5812 was
filed not by Oswalt but by the Union, that Oswalt was but
I of 13 employees named in the charge, that the charge did
not specifically allege misconduct by Howard, and that
Howard's alleged statement to Sims contained no direct
reference to the charge, I find it probable that Howard's
version of the incident more nearly described it accurately.
Accordingly, I shall recommend that this allegation be
dismissed.
D. Section 8(a)(XS) - The Refusal To Bargain in
Good Faith
1. Negotiations - an overview
The negotiations consisted of 19 bargaining sessions
between November 21, 1975, and June 15, 1976. General
Counsel contended that Respondent had engaged in
"surface bargaining," with no intention of reaching a
collective-bargaining agreement, and had unilaterally
granted its employees a wage increase. In asserting that
Respondent sought to frustrate rather than achieve
agreement, General Counsel specifically pointed to the
course of negotiations on seven critical subjects: checkoff,
management rights, representation, grievance and arbitra-
tion, seniority, Christmas bonuses and Thanksgiving
turkeys, and wages. These will be separately discussed. No
contention was made that Respondent engaged in dilatory
tactics, failed to furnish information upon request, or
committed other "technical" violations sometimes found in
surface bargaining cases. Respondent was willing to meet
frequently and for adequate lengths of time; it assumed the
bulk of the responsibility for preparing proposals or writing
up agreements.
The Union was represented throughout negotiations by
Curtis Orman, International representative, and a commit-
tee of employees. Attorney James Smith and a committee
from management represented the Company. The Novem-
ber 21 meeting was introductory; the Union presented the
first half of its proposals, received certain information
previously requested, and requested additional information
regarding existing benefits. Smith pointed out the adverse
economic conditions which Respondent contended it faced
and asked that the Union keep its proposals reasonable.
They agreed to withhold negotiations on economic issues
until language issues were resolved. In regard to insurance,
the Union questioned a provision in the Company's
insurance booklet purporting to limit insurance coverage to
those earning less than $7,500 per year. This was to be a
question raised repeatedly throughout the negotiations.
Company representatives orally assured the Union that the
provision was not so applied. A request was made by the
Union that Respondent pay the committee for time spent
in negotiations. The Union's proposals were reviewed, but
no agreement was reached.
At the second meeting, December 5, 1975, the Union
presented the remainder of its proposals and these were
562
GULF STATES MANUFACTURERS, INC.
discussed. Respondent complied with the Union's request
for information on fringe benefits with a proposal to
continue its practice on vacations, holidays, funeral leave,
and jury duty pay, as set forth therein. The Union's request
for pay for the time spent in negotiations was rejected;
however, the Company agreed to hold meetings on
alternate mornings and afternoons to minimize the loss of
wages by the committee. In the course of the third and
fourth meetings, December 17 and 18, Respondent present-
ed its written proposals, which were discussed.
The next meetings were held on January 7 and 8, 1976.
Smith was not present at these or subsequent meetings
until April 6. Respondent was represented by Attorney
Scott Watson, of the same firm. Watson had Smith's notes
of the prior meetings but requested the Union to go back
through its proposals and explain them again. The Union
objected, but complied. Respondent's proposals were also
discussed again. In the course of the discussions, Orman
observed that Watson was well apprised of what had
transpired in the earlier meetings; he was able to point out
where the Union was varying from its earlier positions. In
the course of these meetings, agreements or tentative
agreements were reached on the preamble, purpose and
scope, recognition, reporting and call-in pay, and funeral
pay. In response to the Union's request for recognition of
its safety committee, Respondent agreed to the principle of
a safety committee but stated that as the safety and health
of the employees was its responsibility it would appoint the
committee, which might or might not include the Union's
committee members.
The meetings of January 19 and 20 began with
discussion of all issues, at Watson's request, to determine
what had been agreed upon. Respondent made a new
proposal on the preamble, deleting the Local Union from
the title. In response to the Union's objection, Watson
stated that the preamble would have to conform to the
certification. Among the other subjects discussed was the
Union's pension plan. Watson asked whether benefits
vested in the first year. Orman said that they did not and
Watson stated that the Respondent was "not interested in
it then, because the men might want to vote the Union out
in one year. . . they have this right." The parties discussed
the profits from the vending machines and Respondent
said that they did not want to give the profits to the Union.
Orman replied that they did not want the profits, only
some say about how the profits went to the employees. A
long discussion was held on bulletin boards, Orman
explaining that they wanted a board or a portion of the
Company's bulletin board to post notices of union
meetings and other noncontroversial matters. Watson
questioned whether the Union mailed out meeting notices
and asked the Union whether it was expected the
Respondent would let them use their bulletin boards
without paying the Company for them. After a discussion
lasting an hour to an hour and a half, the Company's local
counsel, Gholson, spoke up and pointed out that, for the
value of the time spent, bulletin boards could have been
purchased. Watson then drew out a previously prepared
proposal on bulletin boards, which was agreed to with a
single modification. At this meeting, Respondent asked the
Union to submit its economic proposals and agreed to the
Union's request for more frequent meetings.
The parties met daily between January 27 and 30. Wage
proposals, as discussed infra, were exchanged and debated.
The Union once again questioned the apparent $7,500 limit
on insurance coverage and, once again, was orally assured
that no such limitation was enforced.
On February 1, the union committee met with the
membership, described the course of the negotiations, and
submitted Respondent's offer to the membership for a
vote. The employees rejected those offers and authorized a
strike. Respondent was informed of the results of the
meeting.
The Company and Union met next on February 10, with
the assistance of a Federal mediator. The mediator
reviewed the parties' positions and reported to the Union
that the following items were in dispute: vacations,
termination of agreement, holidays, jury duty pay, manage-
ment rights, leave of absence, hours of work and overtime,
discipline and discharge, safety and health, seniority,
grievance and arbitration, checkoff, pension and insurance,
and the no-strike, no-lockout provision. To this, the Union
added the vending machines, pay for the union committee,
reinstatement of an employee discharged earlier, and
Christmas bonuses. The Union also protested that Respon-
dent's proposals would reduce benefits in a number of
areas: Christmas bonuses, Thanksgiving turkeys, the right
to grieve on company time and property, use of telephones,
holidays where they fall within an employee's vacation,
and pay for time spent in repeated visits to the doctor
following an injury. The parties then got together and
discussed various articles, at the suggestion of the media-
tor. In this meeting, Respondent gave the Union a list of
three items it would move on if the Union would accept the
remainder of its proposals: a reduction of the probationary
period from 120 to 90 days, adding a "just cause"
requirement to its proposal permitting it to reduce the work
force for up to 14 days without regard to seniority, and
substituting the language "as need requires" for "as
schedule dictates" on its proposal regarding its right to
unilaterally schedule the hours of work. At the conclusion
of the meeting, the mediator stated that he saw no need to
meet further; Orman, however, caucused with his commit-
tee and then asked the mediator to arrange one more
meeting, at which time the Union would substantially
reduce its proposals.
The next meeting was held on February 13. The Union
presented Respondent with a list of five items for which, if
the employer would agree, the Union would drop its
objections to the remaining company proposals. These
involved grievance and arbitration, hours of work, seniori-
ty, checkoff, and a wage increase. They also asked for some
guarantee in regard to the inapplicability of the $7,500
earnings ceiling on insurance coverage. They spelled out
what they wanted in each of these areas. The Company
caucused and, when they returned, Watson told the Union,
"We have considered the items you gave us, and we have
our final proposal on the table." The meeting concluded.
The Union met again with its membership on the
evening of February 13. After reviewing the course of the
bargaining, Respondent's offers, and the 8(aX)(I) conduct
563
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
previously engaged in by the employer, the employees
voted to strike. The strike began on the following morning.
It lasted but I week. On February 16, Respondent
implemented its wage offer.
The first meeting following the strike was on February
27. Respondent announced that it was taking its proposals
off the table in order to assess the effects of the work
stoppage. In response, the Union said that, if the Company
proposals were withdrawn, its were also. They met next on
March 17, with the mediator present. Watson asked what
union proposals were on the table and Orman replied that,
as both had taken their proposals off the table at the last
meeting, Orman would go back to their original proposals.
Watson stated that he had thought the Union was willing
to move. Orman replied that it took two, that the Union
was ready to do so, and asked what the Company had on
the table. Watson replied that they were not through
assessing the effects of the work stoppage and therefore
had no proposals on the table. Orman offered to accept
Respondent's management rights clause if Watson would
agree to their proposal for checkoff irrevocable for I year.
Watson replied that he thought the Union was going to be
ready to move. He asked about the Union's earlier 5-point
proposal; Orman replied that had been a one-time offer to
try to reach settlement before the strike.
When next the parties met, on April 16, both Smith and
Watson attended for Respondent. The question concerning
the Union's February 13 "5 point" proposal was repeated
and the company proposals were discussed. Respondent
indicated that it would stand by the agreements earlier
reached: preamble, recognition, purpose and scope, report-
ing and call-in pay, funeral leave, and bulletin boards. The
Union again repeated its objections to the apparent
limitations on earnings for those eligible for insurance
coverage. Jackson, manager of manufacturing, then took
Orman's copy of the insurance booklet and physically
struck the offensive phrase.
On May 14, the Union went through its proposals. It
modified or dropped proposals relating to union security,
hours of work, payment for safety equipment, vending
machine profits, and the reinstatement of an earlier
discharged employee. Orman told Watson that the Union
had dropped some of their proposals and was willing to
further reduce or eliminate others. He asked whether the
Respondent was willing to move on some of theirs.
Watson's reply was, "We have not proposed too many ...
we don't have any to drop."
The final meeting prior to the hearing was held on June
15. The Union presented some written proposals, as
requested by Respondent. No agreements were reached.
Watson stated that Respondent would consider the
Union's proposals and would make counterproposals.
There were no subsequent meetings.
2. Christmas bonuses and Thanksgiving turkeys
In the first meeting, upon Orman's request for informa-
tion, the Union was informed that, for the past 3 years,
employees had received turkeys on Thanksgiving and what
Respondent termed a "gift" each Christmas. Employee
Hillhouse testified that he had received $15 on his first
Christmas with Respondent, and $5 more each succeeding
year, for approximately the last 6 years. In the second
meeting, the Union made a written proposal, providing a
Christmas bonus based upon years of service and hours
worked. Smith repeated Respondent's position that the
annual payment was a gift. Smith told Orman that, if
Respondent determined not to make this payment, they
would notify the Union and, if they did make it, the
payment would be consistent with its past practice.9 The
Union's position, whenever this matter was discussed, was
that these terms were "wages," and should be contractually
guaranteed. Respondent never indicated that it intended to
eliminate the "bonus" or the annual turkey, but consistent-
ly stated that it deemed them to be discretionary, gifts, and
refused to bind itself contractually to their continuation.
3. Dues checkoff
The Union's initial proposal provided for union security
if and when permitted by Mississippi law (Mississippi is a
so-called right-to-work State) and dues checkoff where
authorized by the employee, said authorizations to be
irrevocable for I year or until expiration of the contract,
whichever was sooner. It promised indemnity to Respon-
dent for all claims arising out of Respondent's compliance
with the checkoff provision. The parties discussed this
proposal in the first or second meeting.
The Union's checkoff proposal had included two forms
of checkoff authorization. These cards were discussed in
the meeting of January 7, with Orman explaining that some
employees had signed a newer form than others and
requesting that Respondent accept either. However, he
offered to have the employee all execute the same form. On
January 19, Respondent gave the Union its checkoff
proposal (G.C. Exh. 21(c)), which provided for authoriza-
tions revocable at will, required new authorizations upon
any change in the amount of dues, and precluded
deduction of dues arrearages. The Respondent's proposal
was resubmitted on January 27 (G.C. Exh. 23(d)) and was
discussed at that time. The Union objected, in particular,
to the revocability "at-will" feature of Respondent's
proposal and sought I-year irrevocability. According to
Orman's undenied testimony, Watson stated that Respon-
dent did not know whether the employees had really signed
the cards. Orman offered to have all employees execute the
authorizations in the presence of the personnel manager, in
return for l-year irrevocability. Watson refused, stating
that Respondent did not want the employees to think that
they were promoting the Union. In the course of the
meeting on January 28, Watson expressed his personal
9 Orman's recollection, that it was not until the third meeting following
the strike that Smith said the foregoing, is, I believe, less accurate than
Respondent's notes of the bargaining which reflect that this was stated in
both the December 5 and April 6 meetings.
564
GULF STATES MANUFACTURERS, INC.
opposition to checkoff.'0 On February 13, as part of its 5-
point offer to resolve negotiations, the Union sought
irrevocable checkoff and offered to drop checkoff of back
dues. On March 17, Orman told Respondent that, if it
would agree to their checkoff proposal, they would accept
Respondent's management rights clause. Watson stated
that he had thought that the Union was ready to move. No
agreement was reached then, or subsequently, on this issue.
4. Representation
The Union's initial proposal provided for company
recognition of union-appointed stewards "sufficient in
number to handle grievances" and for company coopera-
tion with such stewards in the performance of their duties.
It further provided for a steward for each shift and for the
stewards' right to investigate and handle grievances and
complaints in their respective areas. Respondent's proposal
(G.C. Exh. 2 1(d)) was presented on January 19. It provided
for shop stewards in three designated areas, precluded
payment of stewards for any time spent in processing or
investigating grievances, and further provided:
The Union further agrees that all grievances including
investigations thereof, shall be handled at times other
than the normal work shift of the grievant(s) and the
Shop Steward involved unless the Company agrees in
writing that such grievances may be handled at a time
during the normal work day. The Union further agrees
that all grievance investigations shall be conducted off
the plant site unless the Company agrees in writing that
such grievances can be investigated on the plant site.
The Union objected to Respondent's proposal, particularly
its refusal to pay stewards for grievance meetings and its
prohibition of investigations on the plant site. It was
pointed out to Respondent that this was inconsistent with
Respondent's past practice, as set forth in the employee
handbook, which provided for free access to supervisors
and higher management for employees with problems.
On January 27, Respondent offered a modified represen-
tation proposal, providing that stewards would be paid for
their time spent in meetings called by the Company during
normal working hours. It further provided for additional
stewards if second or third shifts were established. The
restrictions on the time and place of grievance investiga-
tions were maintained.
5. Grievance and arbitration
The Union's initial proposal included a 3-step grievance
procedure leading to final and binding arbitration, with the
costs thereof to be paid jointly. These were generally
discussed in the first and second meetings and Smith
agreed to make Respondent's proposal at the third
meeting. On December 17, Respondent made its proposal
on this subject. It required that a grievance, defined as a
complaint over the interpretation or application of a
specific provision of the agreement, be raised by the
I' Watson's personal objection to checkoff did not preclude him from
negotiating a checkoff provision, with authorizations irrevocable for I year.
in bargaining with another employer which he conducted at the same time
employee with his supervisor within 2 workdays or be
waived, be reduced to writing within 2 workdays or be
deemed abandoned; it gave Respondent 7 workdays to
respond to the written grievance and treated Respondent's
failure to reply within the time limit as a negative reply,
established a third-step meeting between the International
representative and the manufacturing manager, and pro-
vided for arbitration on a voluntary basis only. All
grievances, unless arising out of the same facts, were to be
heard by separate arbitrators in separate hearings and the
Union was to bear all the costs of arbitration unless it
prevailed; in that case, costs were to be split. The authority
of the arbitrator was narrowly proscribed. The clause
provided, inter alia:
No arbitrator shall have the jurisdiction or authority to
add to, take from, nullify, or modify any of the terms of
the Agreement or to impair any of the rights reserved to
Management under the terms hereof; nor shall he have
the power to substitute his discretion for that of
Management in any manner where Management has
not contracted away its right to exercise discretion. The
Company's judgement and decision of the qualifica-
tions of any employee to perform any job shall not be
subject to arbitration.
. * S
Should it be determined that an employee other than a
probationary employee, was disciplined or discharged
without just cause . . he shall be restored to his
former status; provided, however, that the arbitrator
shall not have the authority to grant back pay, unless
agreed to as part of the arbitration agreement.
The parties discussed Respondent's proposal, with the
Union expressing objection to the narrow definition of a
grievance, the short and apparently overlapping time
limitations on processing the first two steps, and the
nonmandatory nature of arbitration. Smith said that
Respondent had proposed voluntary arbitration (at least in
part) because the Union had failed to propose a no-strike
clause. Orman told Smith that this was an oversight. They
further objected particularly to the exclusion from arbitra-
tion of decisions on job qualifications, the limitations on
backpay, and the burden of the expenses of arbitration.
The discussion continued on December 18, with Orman
stating that he would not propose a no-strike clause unless
the arbitration clause could be worked out. The grievance
steps were discussed, including the timespans. Orman
proposed "Union grievances" where a number of employ-
ees were involved. There was consideration of the sources
of lists of arbitrators.
In the meeting of January 7, the Union's proposals were
rediscussed. Watson, replacing Smith, objected to the
Union's proposal, stating that he liked voluntary arbitra-
tion and did not want Orman taking him to arbitration
"every time he turned around." The subject came up again
on January 20 and, at that time, Orman orally proposed a
as the instant negotiations. See Resp. Exh. 19. As demonstrated by Resp.
Exhs. 15 17, Respondent's counsel's firm has also negotiated agreements
providing for checkoff revocable at will.
565
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
broad no-strike no-lockout clause. Discussion was held onwhether the Union's proposed grievance procedure would
be applicable to disputes regarding the payment ofinsurance benefits; the Union asserted that it should,
Respondent contended that this was a matter between the
employee and the insurance company or the state insur-
ance commissioner. Respondent objected to any provision
which would make everything subject to an arbitrator's
award. The Company, Watson testified, agreed to arbitrate
where it was willing, and gave the Union the right to strike
if Respondent refused to arbitrate. Initially, the right tostrike did not include disputes over the establishment of
new jobs with new rates; the Company's initial proposal
made this a subject for the next negotiations. Upon the
Union's objections, Respondent agreed to make this
subject to the Union's right to strike, without waiting until
contract expiration.
At the meeting of January 20, Respondent presented amodified grievance and arbitration procedure, General
Counsel's Exhibit 22(c). It included union grievances
within the definition of grievances, it expanded the time forfiling at the first step to allow for acquisition of knowledge
of the occurrence giving rise to the grievance, it expanded
the time limit for processing to the second step to 5 days
and reduced, from 7 to 5, the number of days for the
departmental superintendent's response at that step. It
further expanded the "appeal" period at step three from 7
to 14 days. Arbitration was still to be voluntary. Thelimitations upon the arbitrator's authority remained essen-
tially the same, except that the arbitrator could award
backpay. The specific exclusion of management determina-
tions of an employee's job qualifications from arbitration
was eliminated. The proposals for separate arbitration
proceedings and union payment of arbitration expenses
were retained. Added was a provision entitling the Union
to strike over "a matter properly subject to the Grievance
Procedure" if Respondent declined to arbitrate, provided
that the Union notified Respondent of its intention tostrike within 10 days of being notified that Respondent
would not arbitrate, and then struck "upon a specified date
within ten (10) days" of such notice. Compliance with
those provisons would preclude the strike from violating
the broad strike and lockout article, as proposed by
Respondent on the same date. In discussing Respondent's
proposals, the Union continued to assert that it wanted 5days in which to file a grievance and preferred mandatory
arbitration and a "straight" no-strike clause to the limited
right to strike. Alternatively, it sought the right to strike
without the notice provisions.
On January 29, Orman gave Respondent a new union
proposal for the grievance and arbitration procedure.
Watson objected to the time limits and mandatory
arbitration provision. Orman pointed out that, in Respon-
I United Steelworkers of America v. American Manu facturing Co., 363
U.S. 564 (1960); United Steelworkers of America v. Warrior & GulfNavigation Company, 363 U.S. 574 (1960); and United Steelworkers ofAmerica v. Enterprise Wheel & Car Corp.. 363 U.S. 593 (1960). These caseshold, in sum, that where a collective-bargaining agreement calls for thearbitration of all questions of contract interpretation, the function of thecourt in a proceeding to require arbitration is merely to determine whether aclaim has been made which, on its fact, is covered by the contract. A strongpolicy favoring arbitration and removing the courts from the merits of such
dent's offer, failure by the Union to comply with the timelimits meant abandonment of the grievance, but failure by
the employer was merely a negative reply to the grievance.
Watson's response was "I see what you mean."
On February 13, Orman included a grievance and
arbitration procedure in the Union's 5-point proposal. He
sought final and binding arbitration but, if Respondent
insisted, offered to accept voluntary arbitration with no
restrictions on the right to strike absent arbitration. As
noted, Respondent neither accepted the Union's offer nor
varied its own at that meeting.
6. Management rights
The Union's initial proposal set forth a brief "Manage-
ment Functions" provision. In the course of the second
meeting, as Orman anticipated, Smith indicated Respon-
dent's intention to submit a more comprehensive provision,
specifically to limit the arbitrability of management rights
in light of the Steelworkers trilogy."' Respondent's initial
management rights proposal was offered on December 17,
1975 (G.C. Exh. 18(a)). Included within the lengthy
proposal were provisions retaining as exclusive functions of
management (omitting the less controversial items), the
right to: subcontract work, change work schedules, impose
discipline up to and including discharge for just cause,' 2
rescind or modify plant safety and work rules, and tomove, sell, or consolidate the plant or any portion of it and
to separate the employees as a result thereof. As noted inthe earlier discussion on arbitration, the establishment of anew classification and its wage rate was reserved solely to
management and was excluded from both the grievance
procedure and the Union's right to strike.
The Union voiced objection to the reference to subcon-
tracting, pointing out that, unless it was limited to
situations wherein the unit employees could not do the
work, Respondent could diminish the unit. They objected
to the unilateral setting of work schedules and indicated
that they had no objection to the provision on work and
safety rules, provided that the term "reasonable rules" was
added to the proposal. At least some of these objections
were repeated by the Union when they met with Watson on
January 7. In particular, Watson recalled Orman objecting
to the reference to subcontracting and Respondent assert-
ing that, if it could get another company to do the work for
less, it would be to everyone's advantage. In his testimony,
Watson pointed out that Respondent regularly subcon-
tracted work. This fact had not been pointed out to the
Union in negotiations.
On January 19, Respondent resubmitted its management
rights article (G.C. Exh. 21(b)). Added was an introductory
paragraph stating:
disputes was set forth. The Warrior & Gulf case specifically involved thequestion of the arbitrability of a grievance over subcontracting which theemployer had contended was not arbitrable under a contract provision
excluding from arbitration matters which were "strictly a function of
management."
i2 A separate provision, contained in the discipline and discharge article
(G.C. Exh. 18(1)), reserved to the Company the right to determine the
degree of discipline to be imposed.
566
GULF STATES MANUFACTURERS, INC.
This Agreement shall not affect or limit any of the
functions of responsibilities of the Company or its
management and shall not restrict in any way the
management of the Company or the exercise of
management prerogatives, provided that such rights
residual with the Company shall not conflict with the
provisions of this Agreement.
Also added was a sentence submitting questions regarding
new classifications to the grievance procedure, but not the
arbitration or strike provisions thereof. Orman and Watson
discussed the proposal, with Orman protesting that
management was taking all the Union's rights away. He
objected to the Company's right to change work hours and
schedules, indicating a fear that Respondent would set
unreasonable work periods. He again voiced agreement to
the Company's setting of safety and work rules, if the term
"reasonable" were added, and objected to the exclusion of
company establishment of new jobs from the total
grievance procedure. To this, according to Orman, Watson
responded, "We may face some problems down the road. It
does not look good. The Company is scrambling for work
and we have to get our work out for our customers."
On January 28, Respondent agreed to add "reasonable"
to the language on safety and work rules. It was added in
the proposal Respondent furnished on February 10. The
Union, at its request, was given a copy of Respondent's
"Conduct Policy" and some discussion was held thereon.
The Union objected to the right of the company physician
to unilaterally dismiss an employee for medical reasons
without a second opinion. They also disagreed with the
language therein permitting Respondent to unilaterally
change, initiate, or eliminate rules. Orman recalled that he
also questioned the meaning of the last sentence of section
l(b) of the Company's management rights article, which
stated, "These rights shall be exercised in good faith with
due regard for the reasonable rights of the employees."
Watson allegedly stated that Respondent would apply it as
they saw fit. At some point, Orman was also told that that
sentence pertained to the entire subparagraph.
As noted, on February 13, the Union presented a 5-point
proposal for settlement. That proposal contained no
objection to Respondent's management rights article. On
March 17, the Union offered to accept that article in return
for checkoff irrevocable for I year. Neither offer was
accepted.
At the meeting of April 6, according to a letter from
Smith to Orman confirming the details of that meeting,
Smith gave Orman a copy of the management rights article
found in N.LR.B. v. American National Insurance Co., 343
U.S. 395, 398 (1952). He offered Orman his choice. At
either the April 6 or May 14 meeting, Orman stated that he
would accept that clause if they could agree on arbitration
and a no-strike clause which, he pointed out, were present
in American National Insurance. No agreement was
reached.
Smith's letter relative to the April 6 meeting asserted that
Respondent had agreed to the Union's right to strike over
new job classifications without waiting until contract
expiration, in the meeting of January 27. The testimony
regarding that meeting does not so indicate. Neither does
Respondent's proposal of February 10, (G. C. Exh. 32(b)),
which retained the earlier language. Orman believed it was
at the meeting of April 6 that Respondent withdrew its
opposition to the Union's right to strike over new job
classifications at the conclusion of the grievance procedure.
7. Seniority
General Counsel contended, essentially, that Respondent
bargained regressively in regard to seniority. Respondent's
practice, prior to the advent of the Union, provided for a
120-day probationary period with no insurance coverage
until the completion thereof, and retention of seniority
while on layoff for 30 days with no right to recall from
layoff.
The Union's initial proposal called for a probationary
period to 60 days, retention of seniority for 48 months
while on layoff and loss of seniority for failure to return
from layoff within 5 days of notice of recall or, 10 days if
the employee provided written notice of his intention to
return (Resp. Exh. 8, attachment 9-10). Respondent's first
seniority proposal (G.C. Exh. 18(b)), provided for a
continuation of the 120-day probationary period, and loss
of seniority after a continuous layoff of I year, continuous
absence because of disability or illness for the lesser of the
period of the employee's seniority or I year, or failure to
return to work within 4 days of notification of recall from
layoff (or 7 days with company approval). Somewhat
inconsistently, the leave of absence proposal (G.C. Exh.
18(d)), provided that an employee would be granted a leave
of absence of up to 2 months if unable to work because of
illness or injury. Respondent's proposal was discussed in
the meeting of December 17, with the Union basically
asserting positions consistent with its proposal. On loss of
seniority following an absence due to illness or injury, they
sought a maximum period of 2 years. Orman pointed out
the inconsistency between Respondent's leave of absence
provision and the seniority article.
In its January 7 proposal regarding leave of absence (G.
C. Exh. 20(g)), Respondent proposed that employees be
eligible for leave of absence of 30 days up to I year for
illness or injury. The Union continued to argue for a 2-year
maximum.
Respondent's proposal regarding leaves for illness or
injury remained unchanged in its next offer (G.C. Exh.
23(g)), presented on January 27. However, the seniority
proposal made on that day (G.C. Exh. 23(f)), provided for
loss of seniority after continuous layoff of 2 months and
failure to report for work within 3 days of notification
following layoff. Respondent's proposal would also reduce
the probationary period to 100 days. The Union offered to
modify its request from a 60-day to a 90-day probationary
period. They pointed out the regression from 4 days to 3 on
return from layoff and from I year to 2 months on loss of
seniority when on layoff. Orman asked Watson whether the
latter was not a mistake. Watson referred the question to
Jackson. According to Orman, Jackson said that there had
been no mistake, the change had been made because the
Union had pointed out the inconsistencies between the
leave of absence article and the seniority article. Orman
567
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pointed out, without response, that they remained inconsis-
tent as changed.13
On February 10, Respondent indicated that a reduction
of the probationary period to 90 days for seniority, but not
insurance purposes, was one of three items on which it
would move if the Union accepted the remainder of its
proposal. This offer was not accepted; neither was the
Union's subsequent offer, as part of its 5-point proposal, to
go back to Respondent's initial offer of 1-year retention of
seniority following layoff.
8. Wages and the wage increase
On January 20, Respondent asked the Union to make its
wage proposal at the next meeting. On January 27, Orman
asked when the employees had last received a raise and
Jackson told him that the employees had received approxi-
mately 7.5 percent in August or September 1974. Orman,
noting the period since the last raise, orally proposed an 18
percent across-the-board increase for the first year, with
wage reopeners or adjustments tied to the cost of living in
the second and third years. Watson responded that he had
hoped for a more realistic proposal. He rejected the
concept of wage reopeners or subsequent raises tied to
figures released by a government agency which that agency
might stop furnishing.
Respondent presented its initial wage proposal on
January 28. It began by giving the Union a list of 22
employees who, it had determined in 1974, were in higher
classifications than they belonged in. The proposal was to
reduce the wages of the 22 by amounts varying from 5
cents to 89 cents per hour. 4 For the remaining employees
it proposed approximately 5 percent in the first year and
across-the-board increases of 5 percent in the second and
third years. The proposal, (G.C. Exh. 26), added a new
labor grade i, for janitors.)5 The Union returned with a
proposal for a 17-percent increase in the first year and 6
percent in each of the second and third years.
On January 29, Respondent made its second wage
proposal, setting forth the wage for each grade and step in
each of 3 years. The offer for the first year was approxi-
mately 1 percent lower, in hourly rates, than the prior offer.
Raises of approximately 5 percent were offered for the
13 Jackson testified that he told Orman that Respondent's initial
proposal had been in error, it had intended to offer a 2-month period for
retention of seniority, to be consistent with its medical leave of absence
proposal and that it was revised to correct that mistake. Noting that the
inconsistency remained after the alleged correction, and their comparative
demeanors, I credit Orman.
1" According to the uncontradicted testimony of Orman, when Respon-
dent gave the Union this list, Jackson stated these 22 individuals had been
told in 1974 that they would receive no increases above their present rates,
but would not suffer wage reductions.
'S The first year proposal, more specifically, provided for an increase
from $2.27 to $2.30 per hour for all steps of grade 1, maintained the existing
$2.51 rate through all steps of grade 2, kept the rates the same in steps I and
2 of grade 3, and offered raises of about 5 percent in all remaining grades
and steps. There were 74 employees at the top step of their labor grades; 43
were in the top step of labor grades 5 and 6. There were 14 employees in the
first step of grade 2, and 22 in various other grades and steps.
"' According to the proposal, the formula would have produced a
payment of 3.88 percent of base pay in the quarter offered, as man-hours per
ton for that quarter. so far, was 11.6. In fact, for the quarter ending March
1976, employees received productivity pay of 1.65 percent. According to
Resp. Exh. 31, monthly man-hours per ton had ranged from approximately
second and third years. Additionally, Respondent offered a
productivity plan which would have provided a quarterly
payment, consisting of a percentage of the employees'
earnings for the quarter, based upon the number of man-
hours required for each ton of shipped buildings. The
payments ranged from .30 percent at 12.9 man-hours per
ton to 9 percent if the required man-hours were reduced to
9.7 per ton or less.16 Respondent continued to propose the
reduction in pay of the 22 employees. The Union rejected
Respondent's offer, noting that the wage proposal ap-
peared to be a regression from the prior offer and opining
that the productivity system was too speculative and
involved too many factors, such as machine breakdowns
and shipping dates, over which the employees had no
control.
The Company made its third and final wage offer on
January 30. (G.C. Exh. 31 (a)-(c)) It provided approxi-
mately 5 percent for most grades in the first year, 4 percent
in the second and third years, and productivity pay.
Respondent also orally proposed to "red-circle" rather
than reduce the wages of the 22 employees. Orman
objected and pointed out that the increases were less than
stated because the rate for grade I employees remained the
same.17 He told the Company that the Union was willing to
give on wages and language but was not willing to give up
all on either. Watson stated that this was Respondent's top
offer on money and asked that it be presented to the
membership. He asked whether the committee would
recommend it and was told that they would not, because
there were too many unresolved issues and too little
money. At a union meeting held on February 1, Orman
presented Respondent's offer; it was rejected.
In the meeting of February 10, the Union received a
document, (G.C. Exh. 32(c)), a wage proposal referring to
wages, and progressions as set forth on an exhibit. The
Union never received the exhibit. According to Watson,
the offer improved the productivity formula.'s
At the last meeting before the strike, February 13, the
Union included a wage increase as part of its 5-point offer
for settlement. In explicating its proposal, Orman told the
Company that the Union was asking for 9 percent in the
first year and 6 percent in the second and third years.
Orman indicated that the Union would accept the
17 to 27, and averaged 19, in 1974. The range was from about II to 33 in
1975, with an average of 13 or more. From January through August 1976,
man-hours per ton ranged from a monthly low of about 9 (in February,
when the strike occurred) to about 15, averaging perhaps 13 to 14. No
productivity pay was earned in the second quarter, ending June 30, 1976.
17 Examination of the offer reveals that Respondent, except for offering
an increase of approximately 5 percent at grade 2 and steps I and 2 of grade
3, had reoffered its January 28 first-year wage proposal. Its proposal for the
second year was virtually the same as had been made on January 29; grade
2 showed a 2-cent-per-hour improvement and a few other steps were
improved or decreased by I or 2 cents. The third-year proposal, as
compared to the wage offer for the third year in the January 29 proposal,
offered improvements of 3 cents per hour to grade 2 and step I of grade 3
( 18 employees as of the date of the offer) and decreases from the prior offer
of 2 cents to 6 cents per hour in all remaining steps and grades,
encompassing 88 employees.
is In this regard, I note that the productivity pay received by employees
in the first quarter of 1976 was 1.65 percent. None of the proposals received
by the Union provided for productivity payments in that amount, leading
me to conclude that, as Watson testified, Respondent had intended to
improve the productivity formula on February 10.
568
GULF STATES MANUFACTURERS, INC.
productivity pay if Respondent wanted, but was not asking
for it. As noted, Watson rejected Orman's proposal and
stated that Respondent's final offer was on the table.
The employees went on strike on the following morning.
On February 16, Respondent's general manager, Clayton
Richardson, wrote the Union and, asserting that an
impasse in negotiations had been reached, advised them
that its last wage offer had been implemented. All
employees, nonstrikers and strike replacements, received
the wage increases immediately. When the striking employ-
ees returned, they also received the wage increases.
According to Jackson, the "wage freeze" was also lifted on
February 16. The clock began running on progression
raises once again.
9. Conclusions to the refusal to bargain
Section 8(a)(5) of the Act establishes a duty on the
parties to collective bargaining, "to enter into discussion
with an open and fair mind, and a sincere purpose to find a
basis of agreement." N.LR.B. v. Herman Sausage Compa-
ny, Inc., 275 F.2d 229, 231 (C.A. 5, 1960). As the Supreme
Court stated the principle in N.L.R.B. v. Insurance Agent
Union AFL-CIO [Prudential Insurance Co.], 361 U.S. 477,
485 (19601):
Collective bargaining, then, is not simply an occasion
for purely formal meetings between management and
labor, while each maintains an attitude of "take it or
leave it"; it presupposes a desire to reach ultimate
agreement, to enter into a collective bargaining agree-
ment.
This obligation compels neither party to agree to a
proposal or make a concession. N.LR.B. v. American
National Insurance Co., 343 U.S. 395 (1952). However, the
Board is not precluded from considering, and "does
consider the totality of the employer's actions to assess its
motivation in determining whether it was really engaging
in surface bargaining with no genuine intention to reach
agreement." Tomco Communications, Inc., 220 NLRB 636,
637 (1975). The Board may, and does, examine the
contents of the proposals put forth, for, "if the Board is not
to be blinded by empty talk and by mere surface motions
of collective bargaining, it must take some cognizance of
the reasonableness of the position taken by an employer in
the course of bargaining negotiations." N.LRB. v. Reed &
Prince Manufacturing Company, 205 F.2d 131, 134 (C.A. 1,
1953), cert. denied 346 U.S. 887.
It is in this context that I have considered the course of
the bargaining. This consideration leads me to conclude
that Respondent has failed to fulfill its statutory obligation
and was, as General Counsel alleged, engaging in surface
bargaining.
The management rights clause, which Respondent
proposed and adhered to throughout negotiations,' 9
required that the Union yield all bargaining rights on such
'9 Respondent adhered to its proposal at least until April 6, when Smith
offered the management rights clause excerpted from American National
Insurance, supra. Orman would have accepted that offer had it included the
grievance and arbitration machinery to which the employer in American
National Insurance was responding when it offered that clause.
basic items as subcontracting, discipline and discharge, the
creation of new job classifications and the wage rates
applicable thereto (discipline and job classifications were
subject to the limited grievance procedure, discussed infra),
scheduling of hours, the closing or consolidation of part or
all of the plant, the separation of employees if the plant
were to be partially or totally closed or consolidated, and
the setting of safety and work rules. Indeed, Respondent's
attempt to shut the Union out of meaningful participation
in decisions affecting working conditions is graphically
demonstrated by Watson's response to the Union's request
for recognition of its safety committee, to wit, that this was
Respondent's responsibility and it would appoint a
committee, which might or might not reflect union
representation. In this latter regard, Respondent's bargain-
ing stance was substantially identical to that of the
employer in San Isabel Electric Services, Inc., 225 NLRB
1073, 1080 (1976). Therein, the Board concluded that the
proposed contract, taken as a whole, "would strip the
Union of any effective method of representing its members
on the issues of safety and work rules . . ." excluding it
"from any participation in decisions affecting important
conditions of employment ... thus exposing [the employ-
er's] bad faith."
Similarly, Respondent's attempt to exclude the Union
from meaningful participation in the role to which the
statute entitles it is revealed in its representation, grievance
and arbitration, and Christmas bonus proposals. In regard
to the latter, it is clear from the regularity of these annual
payments and from the undisputed nexus between the
employment relationship and receipt thereof, that these
were "wages" and thus mandatory subjects of bargaining.
Gas Machinery Company, 221 NLRB 862 (1975); Nello
Pistoresi & Son, Inc. (S & D Trucking Co., Inc.,), 203 NLRB
905 (1973). Respondent's proposals would have excluded
the Union from anything more than notification that these
wage items were going to be discontinued. Respondent's
representation proposal prohibited stewards, without writ-
ten permission, from investigating grievances during the
"normal work day" and "normal work shift"20 or on the
plantsite. It is difficult to conceive of restrictions which
would more inhibit the filing and investigation of griev-
ances.
Assuming that a grievance (narrowly defined by Respon-
dent) surfaced notwithstanding the foregoing restrictions,
its future, and the Union's role therein, would be narrowly
proscribed. The Union was excluded from the first step of
the grievance procedure and was required, under the
proposal, to strictly adhere to the time requirements or
suffer waiver. Arbitration was to be voluntary, would
impose heavy and uneven financial burdens on the Union,
and the Union's right to strike rather than to arbitrate was
not at its own option. It required, and was dependent upon,
Respondent's refusal to arbitrate. The right to strike was
further encumbered by notice provisions which could
seriously weaken the strike as an alternative economic
weapon. The notice provision would have required not
20 Presumably, these terms would include lunch hours and breaktime.
See Essex International, Inc., 211 NLRB 749 (1974); The J. L Hudson
Company, 198 NLRB 172 (1972). Even more than the term "working hours,"
"normal work shift" and "normal work day" imply all the time between
clocking in and clocking out.
569
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
only notification of the intent to strike, but of the specific
date that the strike was to commence. It was thus more
stringent than the strike notice requirement incorporated
into the Act by Section 8(g) for the health care industry.
Moreover, Respondent offered no special justification
(such as is present in the health care industry) why it would
need such specific notice.
As the Board stated in Tomco Communications, supra:
It is well established that an employer's insistence
upon a management-rights clause does not, in and of
itself, constitute a violation of Section 8(aX5) of the
Act. [Citing American National Insurance, supra.]
However, the nature of an employer's proposals on
management-rights and other terms and conditions of a
collective-bargaining agreement are material factors in
assessing the employer's motivations ...
In the instant case, as in Tomco Communications, an
"evaluation of all the Respondent's proposals herein
clearly shows that Respondent was determined to force the
Union and its members to abandon their right to be
consulted regarding practically any and all disputes that
might arise during the term of the contract . . . to waive
their statutory rights to bargain collectively." Even where it
could bargain, in those areas not excluded from the
grievance procedure, its rights were closely circumscribed
by the grievance, arbitration, and no-strike provisions.
Other elements herein evidence Respondent's bad faith.
Respondent's 8(a)(1) activity commenced with the election
and continued throughout the period of negotiations. Its
representatives made statements indicating their animus
toward the Union, their desire to be rid of the Union, and
their belief (or intention) that the Union's presence would
be futile. Such conduct is clearly relevant to a determina-
tion of Respondent's good or bad faith. M.F.A. Milling
Company, 170 NLRB 1079 (1968). Moreover, Respondent's
conduct at the bargaining table bespeaks of a kind of game
playing inconsistent with good-faith bargaining. Noted
particularly in this regard was Watson's insistence upon
twice (January 6 and 19) thoroughly reviewing the
negotiations which had occurred prior to his entry therein,
notwithstanding that he had been left detailed notes by his
predecessor, Respondent's assertion following agreement
to a preamble that included the Local Union's name to the
effect that it would be inappropriate for the preamble to
name the Local, Watson's rejection of a pension plan that
would not vest within a year "because the employees might
vote the Union out," the time wasted arguing over payment
for bulletin boards while Respondent had a new (and
generally acceptable) proposal on that subject all prepared,
and Respondent's removal of its proposals from the table
and refusal to resubmit them after, and because of, the
strike, for approximately 6 weeks. Moreover, the state-
ments of Respondent's representatives in the poststrike
meetings, minimizing the Union's concessions and indicat-
ing that it had no room to move on its own proposals,
revealed that Respondent was not seeking bargaining at
that time, but total capitulation.
Respondent's proposal on checkoff reveals the same kind
of gamesmanship. It objected to irrevocable checkoff
because it was unsure that the employees had actually
signed, notwithstanding that the Union's proposal would
have indemnified it for any improper deductions. When the
Union offered an additional assurance, i.e., signing in the
personnel manager's office, Respondent was ready with
another objection, one that further revealed its animus, i.e.,
that it did not wish to appear to promote the Union.
Respondent's reliance upon H.K. Porter Company, Inc.,
Disston-Danville Works v. N.LR.B., 397 U.S. 99 (1970), is
misplaced. The Board, at 153 NLRB 1370 (1965), and the
circuit court, at 363 F.2d 272 (C.A.D.C., 1962), held that
the employer's refusal to bargain about checkoff was not
made in good faith, but was done solely to frustrate the
making of collective-bargaining agreement. That issue was
not before the court. The Supreme Court only held that the
Board may not remedy such a refusal to bargain by
requiring the parties to agree to a specific contract term.
See Justice Harlan's concurring opinion, 397 U.S. at 109.
See also Midwest Casting Corporation, 194 NLRB 523, 532,
fn. 33 (1971). Like the Board and the circuit court in Porter,
I conclude that Respondent's opposition to irrevocable
checkoff was intended to frustrate agreement.
In regard to seniority, Respondent gave and then took
away its initial proposal permitting I-year retention of
seniority during layoff or absence due to illness, a
significant improvement. When shown that its medical
leave of absence proposal inconsistently provided for only
2 months, Respondent reduced the retention of seniority to
2 months and eliminated absence due to illness from the
seniority clause. It purported to take this action in the
interest of consistency, yet changed the medical leave of
absence provision to permit up to a year's absence.
Finally, in assessing the totality of Respondent's actions,
it is relevant to consider its wage proposal. While on the
surface appearing to have made three successive offers,
analysis reveals that the offers were essentially the same.
Respondent, as Jackson admitted, knew from the outset
what it intended to offer and framed its successive
proposals to reach that point. Basically, the three wage
offers juggled the same moneys, and the last offer would
have left most of the employees with a lower wage at the
end of 3 years than the earlier offers. The productivity
plan, ostensibly providing up to 9 percent in wage
increases, in reality offered little if the employer's experi-
ence with man-hours per ton of product shipped in the past
3 years is to be any guide.
The Act, Section 8(d), provides that "the obligation [to
bargain collectively] does not compel either party to agree
to a proposal or require the making of a concession."
However, it is both permissible and necessary to examine
the totality of the employer's actions to determine motiva-
tion. My examination of that totality leads me to conclude
that, as in Tomco Communications, supra, Respondent's
proposals, from first to last, would have required the Union
to abdicate its representational rights and duties, compen-
sating the employees essentially not at all for their loss. I
cannot accept the contention that Respondent, in good
faith, believed that such proposals could be accepted by the
570
GULF STATES MANUFACTURERS, INC.
Union or intended to present proposals which stood any
chance of acceptance.2 Accordingly, I conclude that
Respondent has failed to bargain in good faith and has
thereby violated Section 8(a)(5) and (1) of the Act.
Additionally, I conclude that Respondent violated
Section 8(a)(5) when it unilaterally removed the wage
freeze and instituted the proposed wage increase on
February 16. Had Respondent implemented that last offer
after a valid bargaining impasse had been reached (and
putting aside the question of whether the offer as
implemented had been made to the Union when the facts
show that the final form of the productivity plan was never
furnished), Respondent's action would have been lawful.
Midwest Casting Corp., supra. No such impasse can exist in
the presence of bad-faith bargaining, such as is found
herein. Taft Broadcasting Co., 163 NLRB 475 (1967).
E. The Strike
On February 14, 1976, in apparent frustration over the
course of the bargaining,22 the Union struck Gulf States.
As I have found that Respondent bargained in bad faith
prior to the strike, and unlawfully instituted the wage
increase at the beginning thereof, I conclude that the strike
was an unfair labor practice strike from its inception.
General Drivers and Helpers Union, Local 662, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America [Rice Lake Creamery Co.] v. N.L.R.B.,
302 F.2d 908 (C.A.D.C., 1962).
As unfair labor practice strikers, the employees who went
on strike were entitled to reinstatement to their former
positions or, if that job no longer existed, to substantially
equivalent positions, upon their unconditional application
to return to work. Mastro Plastics Corp. v. N.LR.B., 350
U.S. 270 (1956). Orman made an unconditional offer to
return, on behalf of all strikers, on February 20 and
repeated it on February 21, 1976. The employees appeared
at the gates, ready to work, on Monday, February 23, 1976.
However, none was reinstated before March 3, when 19
were reinstated, some were reinstated on March 9, and
nearly all of the remainder were reinstated on April 12.
Several had not yet been reinstated by the time of this
hearing. While there were still unreinstated unfair labor
practice strikers, Respondent had and has retained those
hired as strike replacements. At least for some period of
time after the unconditional offer to return to work,
Respondent also retained in the strikers' jobs employees
from nonunit positions who were assigned there temporari-
ly. Moreover, the strikers who have returned to work have
not been returned to their former positions, shifts, or rates
of pay. Some may have been denied insurance coverage
21 That other unions, in other circumstances, might have accepted some
of these terms, or that this union indicated that it would accept some of
them if it received something in return, is no evidence of good faith. San
Isabel Electric. supra.
22 Although Orman was careful to bring out at the February 13 meeting
evidence of the 8(a)(I) violations occurring since the election, so as to
attempt to ensure a finding that this was an unfair labor practice strike, I
cannot conclude that those violations substantially contributed to the cause
or duration of the strike.
23 Respondent has contended that its business was off in the period
following the strike and that, but for the strike, it would have had to lay off
during the period after they were entitled to reinstatement
but before they were reinstated.
Accordingly, I find that, by failing to properly reinstate
its employees who were unfair labor practice strikers,
Respondent has violated Section 8(a)(3) and (1) of the
Act.23
F. Poststrike 8(a)(1)
Kerry Medders participated in the strike and returned to
work under Supervisor Doyle Nowell, on March 3, 1976,
receiving a 5-percent wage increase at that time. After
about 3 weeks, he noticed that other employees were
receiving raises. He asked Nowell about this and Nowell
told him that he been caught in a freeze at a bad time and
that there was nothing he could do about it. Nowell then
told him that it was his right to go on strike but, "if I had
stayed and not gone on strike. . . I could have taken a job
at a higher lever of pay and in 30 days been getting that
pay." I find nothing unlawful in this remark. During the
strike, employees were promoted to higher paying jobs and,
even under the Company's preexisting freeze policy,
employees who were promoted received the wage paid the
higherjob after 30 days.24
About March 16, Supervisor Everett Pepper told strike
replacement Ralph Borden "that if any of the boys was to
ask me about joining the Union, or to mess with me in any
way, don't pay any attention to them and to come and tell
him." Pepper was not called to deny this statement. About
mid-April, according to Borden, Wick Malone, the produc-
tion superintendent, asked him if any of the employees had
asked him to join the Union. Malone told him that, if they
did, he should tell them that he did not know if he had a
permanent job. Malone went on to tell Borden that, if he
did join, he wouldn't have a job because the Company did
not want the Union in there.
Fred Hill, who had been hired during the strike and who,
at the time of the hearing was one of Respondent's
supervisors, related a similar conversation with Malone.
According to Hill, in early April Malone asked him if the
employees had been bothering him about the Union. Hill
said "No." Malone told him that, if they did, he should put
them off by saying that he might not complete his
probationary period. Malone went on to say that all the
Union wanted was his name on a card, and cared nothing
for him. He concluded by telling Hill that it had been since
September "and it looks like they would understand
something .... They haven't done any good so far... It
would not do them any good."
Malone denied speaking to Borden about the Union and
testified that his conversations with Hill related to
reporting or preventing alleged harassment by the former
some employees. Be that as it may (and I note that it appears to be
inconsistent with the lifting of its freeze on February 16). it is clear that
Respondent hired strike replacements who continued to work during and
after the strike. Thus, at least some of the strikers could have been reinstated
immediately following the strike. had Respondent complied with its legal
obligations. The precise date on which each striker would have been
reinstated cannot be determined from this record and is, at any rate. a
matter for the compliance stage of this proceeding.
24 While I have found the strike to be an unfair labor practice strike. I do
not deem the legal effects of that finding sufficient to make Nowell's remark
unlawful.
571
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strikers. Noting particularly that Hill was a supervisor
testifying contrary to his employer's interest-a factor
highly indicative of credibility-that he did not appear
eager to testify, that the testimony of Hill and Borden were
so similar as to lend corroboration to both of them, and
finding both Hill and Borden to have presented more
convincing demeanors then Malone, I credit their versions
of the conversations.
Accordingly, I find that by the directions of Pepper to
Borden to report solicitations by other employees and of
Pepper and Malone to Borden and Hill to avoid joining the
Union, Malone's interrogation of Borden as to whether he
had been asked to join the Union and his threat of job loss
if Borden joined, and Malone's implied statement that
union representation would be futile, Respondent has
violated Section 8(a)(1) of the Act.
ADDITIONAL CONCLUSIONS OF LAW
1. By interrogating employees concerning their union
activities and the union activities of other employees, by
threatening to change work rules, withdraw the assistance
of supervisors, lay off employees, or withhold wage
increases because of the employees' union activity, by
soliciting activity to decertify the Union, and by threaten-
ing employees that their union activity will be futile,
Respondent has interfered with, restrained, and coerced its
employees in the exercise of the rights under Section 7 of
the Act and has violated Section 8(a)(l) of the Act.
2. By laying off the following-named employees be-
tween September 15, 1975, and October 1, 1975, because of
their union activity, Respondent has discriminated against
them in violation of Section 8(aX3) and (1) of the Act:
Harry Vaughn
Jack Griffin
Joe Kimbrough
Bruce Davis
Willie Jackson
Ed Thompson
Robert Chandler
Oddie Harris
Fred Williams
Willie Buford
Odell Robinson
John Gandy
Steve Carmichael
Jimmy Harrelson
Johnny Oswalt
Roy Sims
L. A. Putt
Bobby Benton
Turner Petty
Gary Chandler
George Chandler
Ulysses Gandy
Charlie McCarter
David Wentworth
Otis Hogan
Jimmy Collins
Jeff Harrelson
G. J. Jackson
Richard Harris
John Lancaster
Robert Chandler
Steve McBride
Joe Malone
Willie Buford
William Halbert
Albert Nichols
Aaron Mitchell
Louie Putt
Thomas Bowen
Charles Smith
James Billups
Edgar Thompson
John Swindol
Sammy Wright
Ottis Latham
Larry Michols
Norman Allen
Oddie V. Harris
Robert Vaughn
Dwight Johnson
James Lewis
Harry Vaughn
Steven Carmichael
Thomas Bowen
Joe Douglas Gandy
Jimmy Harris
Willie Hamilton
John Gandy
Tony Hillhouse
Willie Holmes
Bobby Medders
Kerry Medders
Frank Sharp
Richard Harris
Fred Williams
Joe Kimbrough
George Carrithers
Karl Harris
Willie Mosley
Joe Gandy
Phillip Quinn
Romia Ford
Roger Perrigan
Ronnie Sartor
Carl Carrithers
William Harrelson
Roy Sims
James Holland
Jerry Jones
Bobby Pennington
Johnny Trice
Lenon West
Jessie Stallings
Johnny Oswalt
Gerald Whatley
James Allred
Odell Robinson
Thomas Hillhouse
Willie Jackson
Willis Mark Turner
Phillip Whatley
Thomas McCrory
Phil Parker
M. L. Perkins
Woodrow Crowley
James Langley
Roosevelt Tate
Elbert McGee
Royce White
Johnny White
Bruce Davis
Jack Griffin
Clinton Johnson
Jimmy Oswalt
Turner Petty
3. The strike which began on February 14, 1976, was
caused and prolonged by Respondent's unfair labor
practices and was an unfair labor practice strike from its
inception.
4. An unconditional offer to return to work was made
by the Union on behalf of all the unfair labor practice
strikers on February 20, 1976.
5. By failing and refusing to timely reinstate the
following-named unfair labor practice strikers to their
former or substantially equivalent positions, Respondent
has violated Section 8(a)(3) and (1) of the Act: 25
John Bell William Owens
Luther Bishop Thomas R. Smith
25 These names appear as alleged in the complaint and G.C. Exh. 51. The
record establishes in addition that Johnny Oswalt, Richard Owen Harris,
Jeff Harrelson. Hugh Christian and Charles Holland apparently received
6. At all times material herein, the Union has been the
exclusive collective-bargaining representative of Respon-
dent's employees in the following unit appropriate for the
purposes of collective bargaining:
All production and maintenance employees, plant
clerical employees, full-time and regular part-time
truckdrivers and leadmen employed at Respondent's
Starkville, Mississippi plant, excluding all office clerical
employees, draftsmen, guards, and supervisors as
defined in the Act.
7. Since on or about November 21, 1975, and continu-
ing thereafter to date, Respondent has, by its overall course
offers of reinstatement between March II and April 18, 1976, but did not
return to work for Respondent. The record does not reflect whether they
declined offers of reinstatement to their former positions of shifts.
572
GULF STATES MANUFACTURERS, INC.
of conduct in the contract negotiations, and by its
unilateral implementation of a wage increase on February
16, 1976, refused to bargain collectively in good faith
concerning wages, hours of employment, and other terms
and conditions of employment, in violation of Section
8(a)(5) and (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that Respondent has engaged in
unfair labor practices in violation of Section 8(aX)(1), (3),
and (5) of the Act, it will be recommended that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
With respect to the overall bad faith exhibited by
Respondent during the course of negotiations, I shall
recommend a general bargaining order. Inasmuch as the
unit employees have been deprived of the benefits of the
certification year, said year shall be deemed to begin on the
date that Respondent commences to bargain in good faith.
It having been found that Respondent unlawfully laid off
certain employees, it will be recommended that Respon-
dent make each of these employees whole for any loss of
earnings suffered as a result of this layoff. It having been
found further that Respondent failed to properly or timely
reinstate unfair labor practice strikers to their former or
substantially equivalent positions, it will be recommended
that Respondent offer each of these employees immediate
reinstatement to his or her former position (including shift
assignment), or, if such job no longer exists, to a
substantially equivalent position, without loss of seniority
or other rights or privileges, discharging if necessary any
replacements hired, and make each of these employees
whole for any loss of earnings, including insurance
benefits, he or she normally would have earned from
February 25, 1976 (5 days after the unconditional offer to
return to work), to the date of Respondent's offer of
reinstatement, in accordance with the Board's formula set
forth in F. W. Woolworth Company, 90 NLRB 289 (1950),
with interest thereon at the rate of 6 percent annum as set
forth in Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
In view of the seriousness of the violations involved, I
shall recommend a broad remedial order. N.LR.B. v.
Entwistle Manufacturing Company, 120 F.2d 523, 536 (C.A.
4, 1941).
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I issue the following recommended:
26 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
ORDER 26
The Respondent, Gulf States Manufacturers, Inc.,
Starkville, Mississippi, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing employees in
the exercise of their Section 7 rights by interrogating them
concerning their union activities and the union activities of
other employees, by threatening to change work rules,
withdraw the assistance of supervisors, lay off employees,
or withhold wage increases because of the employees'
union activities, by soliciting activity to decertify the
Union, or by threatening employees that their union
activity would be futile.
(b) Discouraging membership in International Brother-
hood of Boilermakers, Iron Ship Builders, Blacksmiths,
Forgers and Helpers, AFL-CIO, or any other labor
organization, by laying off, refusing to reinstate or return
to work, or otherwise discriminating against employees in
any manner with regard to their hire and tenure of
employment or any term or condition of employment.
(c) Refusing to bargain in good faith with the aforesaid
Union as the certified collective-bargaining representative
of the employees in the following described unit, by
engaging in surface bargaining with no intention of
reaching agreement or by making unilateral changes in
wages or other terms and conditions of employment: 27
All production and maintenance employees, plant
clerical employees, full-time and regular part-time
truckdrivers and leadmen employed at Respondent's
Starkville, Mississippi plant, excluding all office clerical
employees, draftsmen, guards, and supervisors as
defined in the Act.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed
them under Section 7 of the Act.
2. Take the following affirmative action which, it is
found, will effectuate the purposes of the Act:
(a) Offer each of the former unfair labor practice strikers
who have not been reinstated, or who were reinstated to
other than their former positions of shifts, immediate
reinstatement to his or her former position and and shift or,
if such job no longer exists, to a substantially equivalent
position, without loss of seniority or other rights or
privileges, discharging if necessary any replacements hired,
and make each of these employees whole for any loss of
earnings he or she would normally have earned from
February 25, 1976, 5 days after the unconditional offer to
return to work was made, to the date of Respondent's offer
of reinstatement, in accordance with the provision of the
section of this Decision entitled "The Remedy."
(b) Make whole all former unfair labor practice strikers
for any losses they may have suffered because of the
cancellation of their health insurance between the time of
27 Provided, however, that nothing herein shall be construed as requiring
Respondent to vary or abandon any economic benefit heretofore estab-
lished.
573
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the unconditional offer to return to work and the date of
their actual reinstatement, in accordance with the provi-
sions of the section of this Decision entitled "The
Remedy."
(c) Make whole the following-named employees for the
loss of earnings they suffered as a result of the discrimina-
tory layoffs between September 15, 1975, and October 1,
1975:
Harry Vaughn
Jack Griffin
Joe Kimbrough
Bruce Davis
Willie Jackson
Ed Thompson
Robert Chandler
Oddie Harris
Fred Williams
Willie Buford
Odell Robinson
John Gandy
Steve Carmichael
Jimmy Harrelson
Johnny Oswalt
Roy Sims
L. A. Putt
Bobby Benton
Turner Petty
(d) Bargain in good faith with the aforesaid Union, upon
its request, as the exclusive representative of the employees
in the the appropriate bargaining unit, and embody in a
signed agreement any understanding reached.
(e) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze and determine the amount of backpay
due under the terms of this recommended Order.
(f) Post at its Starkville, Mississippi, facility, copies of the
attached notice marked "Appendix." 2 8 Copies of said
notices, on forms furnished by the Regional Director for
Region 26, after being duly signed by the Respondent's
authorized representative, shall be posted immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing 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.
(g) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply therewith.
IT IS FURTHER ORDERED that the complaint, as amended,
be any hereby is dismissed insofar as it alleged unfair labor
practices not specifically found herein.
28 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing during which all parties were given an
opportunity to present evidence and argument, it has been
determined that we have violated the law by committing
unfair labor practices. In order to remedy such conduct we
are being required to post this notice. We intend to comply
with this requirement and to abide by the following
commitments.
The National Labor Relations Act gives all employees
these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a freely chosen
representative
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT do anything which interferes with
these rights.
WE WILL NOT question our employees about their
union activity.
WE WILL NOT threaten our employees with layoff,
denial of wage increases, changed work rules, or loss of
assistance from their supervisors because of their union
activity, or with statements that their union activity will
be futile.
WE WILL NOT solicit employees to decertify the
Union.
WE WILL NOT lay off, refuse to reinstate or to return
to work, or discriminate against employees in any other
manner with regard to their hire or tenure of employ-
ment or any term or condition of employment because
of their activities on behalf of or sympathies or support
for the International Brotherhood of Boilermakers,
Iron Ship Builders, Blacksmiths, Forgers and Helpers,
AFL-CIO, or any other union.
WE WILL NOT unilaterally, and without consultation
with the above-named Union, give our employees wage
increases. Provided, however, that nothing herein shall
be construed as requiring us to abandon or rescind any
wage increases we have previously given.
WE WILL make the following-named employees
whole for any loss of earnings they suffered as a result
of our discriminatory layoff of them on various days
between September 15, 1975, and October 1, 1975.
Harry Vaughn
Jack Griffin
Joe Kimbrough
Bruce Davis
Willie Jackson
Ed Thompson
Robert Chandler
Oddie Harris
Fred Williams
Willie Buford
Odell Robinson
John Gandy
Steve Carmichael
Jimmy Harrelson
Johnny Oswalt
Roy Sims
L. A. Putt
Bobby Benton
Turner Petty
WE WILL offer all of the former unfair labor practice
strikers who have not been reinstated, or who were
reinstated to other than their former positions or shifts,
immediate reinstatement to their former position or
shift or, if such jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniori-
574
GULF STATES MANUFACTURERS, INC.
ty or other rights or privileges, discharging if necessary
any replacements, and WE WILL make them whole for
any earnings or insurance benefits lost as a result of our
refusal to properly and timely reinstate them.
WE WILL bargain collectively and in good faith upon
request with the above-named Union as the exclusive
representative of the employees in the appropriate unit
described below and embody any understanding
reached in a signed agreement. The appropriate
bargaining unit is:
All production and maintenance employees, plant
clerical employees, full-time and regular part-time
truckdrivers and leadmen employed at our Stark-
ville, Mississippi plant, exluding all office clerical
employees, draftsmen, guards, and supervisors as
defined in the Act.
GULF STATES
MANUFACTURERS, INC.
575