Higgins, Inc.

National Labor Relations Board - Board Decisions

Jun 8, 1950

90 N.L.R.B. 184 (N.L.R.B. 1950)

In the Matter of HIGGINS, INC. and INDUSTRIAL UNION OF MARINE AND
SHIPBUILDING WORKERS OF AMERICA, LOCAL 73, CIO
Case No. 15-CA-27.-Decided June 8, 1950
DECISION AND ORDER
On March 16, 1950, Trial Examiner James J. Fitzpatrick issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed ex-
ceptions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act the Board has delegated its powers in connection with
this proceeding to a three-member panel [Chairman Herzog and Mem-
bers Houston and Styles].
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and brief, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner insofar as they are consistent with this Decision
and Order?
The Trial Examiner found, and we agree, that the Respondent had
refused to bargain with the Union in violation of Section 8 (a) (5)
and 8 (a) (1) of the Act.
In reaching this conclusion, however, we rely solely upon the fol-
lowing circumstances :
On July 24, 1947, the Respondent's production and maintenance em-
ployees, for whom the Union was the certified bargaining representa-
tive, went on strike.
On July 30, 1947, the Union wrote the Respondent that, by action
of its board, the strike was being terminated on July 31, 1947, at 7 a. m.,
and all employees still on strike were being notified to return to work
The request for oral argument by the Respondent is hereby denied inasmuch as the record
and the briefs, in our opinion, adequately present the issues and the positions of the parties.
90 NLRB No. 31.
184
HIGGINS, INC. 185
unconditionally. This letter further requested the Respondent to
meet with the Union for the purpose of negotiating a new agreement.
Upon the termination of the work stoppage, the Respondent rein-
stated all of the striking employees who had not already returned, ex-
cept for about 150 of the strike leaders.
On August 2, 1947, the Union, by letter, notified the Respondent
that it was still. the certified bargaining agent for the Respondent's em-
ployees, and requested the Respondent to meet with the Union on
August 5, 1947, for the purpose of resuming the negotiations which
had. been suspended during the strike.
On August 4, 1947, the Respondent, by letter notified the Union that
it would adhere to the position it had expressed in an earlier letter
dated July 29, 1947, namely, that the strike was in violation of the
agreement and that the Union had thereby "forfeited. any rights it
might have had to represent the employees" of the Respondent.
The parties stipulated that, despite the Union' s several requests
between July 29, 1947, and the hearing date, the Respondent had de-
clined to bargain with the Union as the exclusive bargaining repre-
sentative of the Respondent's employees in the appropriate unit.
With respect to representation, the parties stipulated that a com-
parison of the August 3, 1947, payroll of the Respondent at the two
plants involved with a roster of union members furnished by the Union
to the Board, indicated that a clear majority of those actually in the
Respondent's employ in the appropriate unit were members of the
Union until at least August 3, 1947.2
On the basis of the foregoing it appears that, although the Union
concededly enjoyed majority status after the strike had been termi-
nated (on and after July 31, 1947), the Respondent nevertheless
refused to bargain with it. Like the Trial Examiner, we find that
such refusal was in violation of the Act. Assuming, arguendo, that
the strike violated the contract, as urged by the Respondent'3 so far
as the. problem before us is concerned that would only mean that the
Respondent was under no obligation to, bargain with the Union dur-
ing the strike.4 However, under well-established principles, the obli-
gation to bargain became operative again as soon as the strike was
2In view of this stipulation, and in view of the fact that the Respondent did not, in its
communications with the Union , base its refusal to bargain on a doubt of continuing ma-
jority, we see no need to pass upon the findings of the Trial Examiner with respect to the
various contentions of the Respondent suggesting that the. Union no longer represented a
majority after July 28, 1947.
2 Because of our determination herein, we deem it unnecessary to adopt the Trial'
Examiner ' s finding that the contract in question had been terminated before the strike
began and that the strike was therefore not in violation of the "no strike clause" in the
agreement.
' Charles E. Reed G Co., 76 NLRB 548.
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
voluntarily terminated by the Union and the employees on strike
returned to work.' Nor is it necessary to determine whether in rein-
stating the strikers the Respondents can be viewed as having con-
doned an unlawful strike; accordingly, we do not adopt the Trial
Examiner's finding to that effect. What is controlling is the fact
that the striking employees were reinstated and that the Union con-
tinued, at the later time when it was refused recognition, as the repre-
sentative of a majority of these employees.
Accordingly, we find that the Respondent by refusing after July
31, 1947, to bargain collectively with the Union as the exclusive
representative of the employees in the appropriate unit, violated Sec-
tion 8 (a) (5) and 8 (a) (1) of the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Higgins, Inc., New Orleans,
Louisiana, and its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Industrial Union of
Marine and Shipbuilding Workers of America, Local 73, CIO, as the
exclusive representative of all production and maintenance employees
at the Respondent's Industrial Canal and Michaud plants, New Or-
leans, Louisiana, including leadermen and assistant foremen, but ex-
cluding construction employees, boat crews, plant-protection employ-
ees, production clerks, inspectors, office and clerical employees, foremen
and all other supervisors;
5 The Court of Appeals in N. L . R. B. v. Highland Shoe, Inc., 119 F. 2d 218 (C. A. 1),
in similar circumstances , stated :
. . . Unless the statutory duty to bargain collectively is held to remain in force
even after a labor contract has been broken , the purpose of the Act to promote indus-
trial peace through collective bargaining will be attained only in small measure.
See also N . L. R. B. v. Remington Rand, Inc., 94 F. 2d 862, 873 (C. A. 2), cert . denied
304 U . S. 576 ; N. L. R. B. v. Reed & Prince Mfg . Co., 118 F. 2d 874, 885 ( C. A. 1), cert.
denied 313 U. S. 595.
In Southern S. S. Co. V. N. L. R. B., 316 U. S. 31, employees struck to secure recogni-
tion, and several men were discharged for participating in the strike ; the discharges were
held to be proper because the employees , who were seamen, in remaining on board a
vessel docked away from home port unwilling to work, were engaged in a strike which
was mutinous. Notwithstanding the unlawful character of the strike, the Supreme Court
sustained that part of the Board's order which required the Employer to bargain with
the Union, explaining that "the view we have taken does not prevent the redress of
grievances under the Act" by "forcing" the employer "to bargain."
In Dorsey Trailers, Inc., 80 NLRB 478, 486, the Board held that where employees
abandoned their wrongful strike and offered unconditionally to return to work, the re-
spondent was obligated to bargain, upon request, with the union. This part of. the Board's
decision was not disturbed by the Court of Appeals in N. L. R. B. v. Dorsey Trailers, Inc.,
179 F. 2d 589 (C. A. 5).
HIGGINS, INC. 187
(b) Engaging in any other acts in any manner, interfering with
the efforts of said Union to negotiate for or represent the employees
in the aforesaid unit as exclusive bargaining agent.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Upon request, bargain collectively with Industrial Union of
Marine and Shipbuilding Workers of America, Local 73, CIO, as
the exclusive representative of all its employees in the aforesaid
appropriate unit with respect to rates of pay, wages, hours of em-
ploynlent, and other terms or conditions of employment, and, if an
understanding is reached, embody such understanding in a signed
agreement;
(b) Post at its Industrial Canal and Michaud plants in New
Orleans, Louisiana, copies of the notice attached hereto and marked
Appendix A.' Copies of said notice, to be furnished by the Regional
Director for the Fifteenth Region, shall, after being duly signed by
the Respondent's representative, be posted by the Respondent immed-
iately upon receipt thereof, and maintained by it for sixty (60) con-
secutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken. by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material;
(c) Notify the Regional Director for the Fifteenth Region in writ-
ing within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply therewith.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT engage in any acts in any manner interfering with
the efforts Of INDUSTRIAL UNION OF MARINE AND SHIPBUILDING
WORKERS or AMERICA, LOCAL 73, CIO, to negotiate for or repre-
sent the employees in the bargaining unit described below.
WE WILL bargain collectively, upon request, with the above-
named union as the exclusive representative of all employees in
the bargaining unit described below with respect to wages, rates
9 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted in the notice before the words : "A Decision and Order" the words
"A Decree of the United States Court of Appeals enforcing."
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of pay, hours of employment, or other terms or conditions of em-
ployment, and if an understanding is reached, embody such under-
.standing in a signed agreement. The bargaining unit is:
All production and maintenance employees in the Industrial
Canal and Michaud plants, including leadermen and assistant
foremen, but excluding construction employees, boat crews, plant-
protection employees , production clerks, inspectors, office and
clerical employees, foremen, and all other supervisors.
HIGGINS, INC.,
Employer.
By-------------------
(Representative ) ( Title)
Dated--------------------
This notice must remain posted for 60 clays from the date hereof,
and must not be altered, defaced, or covered by any other material..
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Mr. Andrew P. Carter, of New Orleans, La., for the General Counsel.
Messrs. Charles P. Fenner, Jr., and Art/ier B. Hammond, Jr., of New Orleans,
La., for the Respondent.
Mr. Fred J. Cassibry, of New Orleans, La., for the Union.
STATEMENT OF THE CASE
Upon a charge duly filed on January 7, 1948, by Industrial Union.of Marine
and Shipbuilding Workers of America, Local 73, C. I. 0., herein called either
Local 73 or the Union, the General Counsel of the National Labor Relations
Board, by the Regional Director for the Fifteenth Region (New Orleans,
Louisiana), issued a complaint dated August 1.8, 1949, against Higgins, Inc., of
New Orleans, Louisiana, herein called the Respondent, alleging that the Respond-
ent had engaged and was engaging in unfair labor practices affecting commerce
within the meaning of Section6 (1) and (5) of the National Labor Relations
Act (49 Stat. 449), and Section 8 (a) (1) and (5) of the Labor Management
Relations Act (61 Stat. 136), herein called the Act and the amended Act, and
Section 2 (6) and (7) of the Act and the amended Act. Copies of the charge,
the complaint, and notices of hearing thereon were duly served upon Respondent
and the Union.
With respect to the unfair labor practices, the complaint alleged in substance,
that the Respondent on or about July 29, 1947, and thereafter refused to bargain
collectively with the Union as the exclusive bargaining representative of the
Respondent's employees within an appropriate bargaining unit.
No written answer to the complaint was filed, but the Respondent's counsel at
the opening of the hearing stated; in effect, on the record that the Respondent
admitted all the factual allegations in the complaint,' except that the Union
has been and now is the exclusive representative of all the employees in the
appropriate unit, which allegation was denied.
' As appears in stipulation on the facts received in evidence.
HIGGINS, INC. 189
Pursuant to notices, a hearing was held' on August 30 and 31, 1949, at New
Orleans, Louisiana, before J. J. Fitzpatrick, the undersigned Trial Examiner
duly designated by the Chief Trial Examiner. The General Counsel, the Re-
spondent, and the Union were represented by counsel. All parties participated
in the hearing and were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the issues. At
'lle conclusion of the hearing, the parties waived oral argument, but were granted
time to file briefs and/or proposed findings of fact and conclusions of law. A
brief has been received from the Respondent.
Upon the entire record in the case and from my observation of the witnesses,
I make thefollowing:
FINDINGS OF FACT2
I. THE BUSINESS OF THE RESPONDENT
Higgins, Inc., is a Louisiana corporation with its oflch and principal place of
business in New Orleans, Louisiana, where it is engaged in the manufacture of
small boats and in the repair of small crafts. In the calendar year 1948 it
purchased materials consisting principally of steel, rough mahogany, and ship
furnishings, in excess of $1,000,000 in value, approximately 85 percent of which
was purchased outside the State of Louisiana and shipped in interstate commerce
to New Orleans. During the same period, the Respondent manufactured and sold
pleasure craft, small boats, and other products valued in excess of $2,000,000,
approximately 70 percent of which went to customers outside the State of
Louisiana. I find, as alleged in the complaint and admitted at the hearing, that
the Respondent is engaged in business affecting interstate commerce within the
meaning of the Act.
II. THE ORGANIZATION INVOLVED
Industrial Union of Marine and Shipbuilding Workers of America, Local 73,
C. I. 0., is a labor organization within the meaning of Section 2 (5) of the Act,
admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background and sequence of events
On or about March 20, 1946, a majority of the Respondent's production and
maintenance employees in an appropriate unit in its New Orleans plants,' by an
election conducted under the supervision of the Board, designated the Union
as.their representative for the purpose of collective bargaining and the Board
certified the Union as such representative on or about April 8, 1946.
Thereafter, on July 12, 1946, the Respondent and the Union executed a contract
covering the employees in both plants in the above-referred-to appropriate unit.
Section 1 of Article XXVIII of this agreement reads as follows:
This agreement shall become effective as of July 12, 1946, and shall con-
tinue in full force and effect until June 23, 1947. Thereafter, this agreement
shall continue in full force and effect from year to year, unless either party
hereto shall notify the other, in-writing, not less than thirty (30) days prim
2 The findings herein are based almost entirely on stipulated facts. When and if based
on resolutions of controverted testimony it will be so noted.
At the time of the alleged unfair labor practices , and the hearing , the Respondent had
plants in New Orleans as follows : Plant Number 1, also referred to as the Michaud plant,
and Plant Number 2 referred to sometimes as the Industrial Canal plant.
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD.
to the expiration of the term or any extended term of.the agreement of its
intention to modify or terminate the Agreement.
Negotiations for the modification of this Agreement shall be commenced
within ten (10) days after the receipt of such notice, and if such modifica-
tions are not completed prior to the expiration of the term or any extended
term of this Agreement as the case may be, it shall remain in effect for an
additional period of thirty (30) days, after which it may then be terminatedo
by either, party upon giving written notice to the other.
And Section 1 of Article XXV thereof provides: .
There shall be no lock-out on the part of the Company nor suspension of
work nor picketing of the Company's plants on the part of the employees.
This Agreement is a guarantee that there will be neither strike nor lock-outs.
On May 24, 1947, while the above contract was current, the Union posted a
letter notifying the Respondent of its intention to modify the agreement. The
Respondent received the Union's letter on Monday, May 26, 1947.
. Although the Respondent thereafter took the position that the Union's letter
of May 24, was an untimely notice of a desire to modify the existing agreement
and that Respondent considered that the contract had automatically renewed
itself for another 12-month period under the provisions of Section 1 of Article
XXVIII above quoted, it nevertheless, participated in several bargaining con-
ferences with the Union beginning May 26 and ending July 24, 1947.
During these conferences the Union, represented by its executive board which
included President John W. Weightman, Vice-President Leonard Dauenhauer,
Treasurer Frank Joseph, and Secretary Harold Caillouet, demanded, among other
things, an across the board increase of 12 cents an hour for the employees in
both plants.4 Respondent's representatives contended that particularly in the
Michaud plant, Respondent was engaged in operations other than shipbuilding
and it would be economically disastrous for it to raise the wages of common
laborers thus employed to the extent demanded.
On July 24 when the negotiators met at 9 :30 a. in. the Union gave management
notice in writing that the Union was terminating the contract "effective 12:01
a. in. July 24, 1947" in accordance with the second paragraph of Section 1 of
Article XXVIII thereof above quoted. About 10 a. m. the same day while
negotiations were still in progress, a large majority of the employees covered by
the contract walked out of both plants on strike and immediately set up picket
lines o
However, the negotiations continued into the afternoon in spite of the strike,
but terminated when the union representatives rejected the Respondent's final
offer to raise the Industrial plant employees 12 cents an hour as demanded
by the Union, and make certain pay adjustments at the Michaud plant.
The strike continued from July 24 to July 31. No meetings of the negotiators
were held during this period, but on the 29th, Union President Weightman by
letter advised the Respondent that the July 24 offer was accepted. The letter
concluded :
We request that you meet with us immediately so that production will
be resumed as soon as possible.
° Similar demands were apparently being made in the shipbuilding industry throughout
the country by Industrial Union of Marine and Shipbuilding Workers of America, the parent
organization.
5 The membership of the Union had authorized a strike on June 26 . Even before that
date there had been threats of a strike that had come to the attention of management.
HIGGINS, INC. 191
July 30 , President Weightman wrote the Respondent that the strike would
terminate as of 11 a. in. July 31 and "all employees still out on strike are being
notified to return to work unconditionally ."' This letter concluded with a
request that the Respondent meet with the Union for the purpose of "negotiating
a new working agreement."
On July 29, Fontaine Martin, at that time , attorney for the Respondent, wrote
Union Secretary Caillouet that because the Union had (a ) refused to submit
to arbitration the question of the "termination date" of the agreement and (b).
had called a strike in violation of the written agreement,
Higgins, Inc . has instructed its to inform you that it considers that the
contract has been broken by your organization and is, therefore , no longer
in effect and that your organization has thereby forfeited any rights that
it may have had to represent the employees of Higgins, Inc.
On August 2, Weightman again wrote the Respondent requesting that it meet
with the Union to negotiate a new contract . On August 4 Attorney Martin
answered the July 30 and August 2 letters of the Union stating,
The position of Higgins , Inc. has not changed since the sending of our
letter to you dated July 29, 1947.
The Respondent hired few , if any , replacements during the strike and , as previ-
ously noted , some of the striking employees started to return to work after the
first day thereof. When the work stoppage was termifiated , Respondent rein-
stated all striking employees who had not already come back to work, excepting
approximately 150 of the strike leaders, including all union officers, executive
board members , and stewards , who were blamed by the Respondent for causing
and continuing the strike . As a result , some of these unemployed workers, in-
cluding Union President Weightman and Secretary Caillouet , secured work in
other cities . Because of the absence of some of its officers and the disorganiza-
tion in Local 73 resulting from the unsuccessful strike, Industrial Union of Marine
and Shipbuilding Workers of America ( the parent organization ), about the end
of August 1947 appointed Arthur Leary , its national representative in the New
Orleans area , administrator of the Union.
Leary appointed a provisional board to assist him, consisting of available
officers of Local 73 as well as some of the executive board members , and made
several attempts , all of which were unsuccessful, to have the Respondent resume
bargaining relations with the Union . Each time when so approached , the Re-
spondent reiterated its previously stated position that the Union had forfeited
its representative status by fathering an illegal strike in violation of the terms
of the contract . At the hearing it also contended that a majority of the employees
had repudiated the Union by abandoning the picket line and returning to work,
and that Local 73, subsequent to July 30, 1947, ceased to function as a union
organization.
B. The refusal to bargain
1. The appropriate unit
I find as alleged in the complaint and stipulated at the hearing, that an appro.
priate unit for the purposes of collective bargaining within the meaning of See-
There were 2,086 employees in the bargaining unit. Of this number the statistics show :
July 24, 1,2SG on strike, 800 reported for work ; July 24, 1,454 on strike, 622 reported for
work ; July 28 (Monday ) 1,232 on strike, 854 reported for work ; July 29 , 1,030 on strike,
1.056 reported for work ; July 30, 877 on strike, 1,209 reported for work ; July 31, the last
day of the strike, 713 on strike, 1,373 reported for work.
192 DECISIONS OF NATIONAL LABOJI RELATIONS BOARD
tion 9 (b) of the Act and the amended Act consists of the following employees
in the Respondent's Industrial Canal and also in its Michaud plant:
All production and maintenance employees, including leadermen and as-
sistant foremen, but excluding construction employees, boat crews, plant
protection employees, production clerks, inspectors, office and clerical em-
ployees, foremen and other supervisory employees with authority to hire,
promote, discharge, discipline or otherwise effect changes in the status of
employees or effectively recommend such action. .
2. Representation by the Union of a majority
Richard Feise, the Respondent's personnel manager in 1947, testified credibly
without dispute and I find that at the beginning of the strike on July 24, 1947,
about 76 percent of the employees of the Respondent in the appropriate unit
were members of the Union. I find further, as stipulated by the parties at the
hearing, that a comparison of the August 3, 1947, payroll of the Respondent at
each of its two plants with a roster of union members furnished by the Union
to the Board indicates that a clear majority of Respondent's employees in the
appropriate unit were members of the Union until at least August 3, 1947.7
The Respondent, conceding the above facts, nevertheless argues that after
July 28, 1947, the Union actually no longer represented the employees because,
(a) during the strike, a majority.of the employees in the appropriate unit
repudiated the Union by abandoning the picket line and returning to work,
(b) the Union did not function after the strike collapsed, and (c) union men
participated in the formation of a labor management committee.
As to the first of the above contentions of the Respondent, it must be remem-
bered that the concerted activity from July 24 to July 31 was not a strike for
the purpose of proving that the Union represented a majority of the employees
or to obtain recognition, but rather an attempt by the employees, sponsored by
their admitted and recognized representative, to force the Respondent to grant
the wage increase demand. Therefore, when a majority of the employees re-
turned to work after striking for several days, it merely proved, as was later
established by the complete collapse of the strike, that the Respondent had won
in the economic contest. The fact that a majority of the employees did not
support the strike to the bitter end thereof is no proof that such employees
thereby evidenced a desire to change their representation. In the A. C. Loveland
Co., representation case" cited by the Respondent, all the employees in the unit
originally had struck in support of an organizing drive for the Union, but there-
after and before the strike terminated, several of the employees so striking
(less than one-half) returned to work. The Board held that the abandonment
of such type of strike by some of the interested employees raised "a legitimate
doubt" as to the representation wishes of the employees which could best be
decided by an election rather than by a cross-check of cards against the pay
roll, as requested by the Union. The case lends no support to the theory that
loss of an economic strike (not involving representation) 4s evidence that the
employees involved have thereby repudiated their previously duly authorized
and recognized representative.
Even if it be assumed, contrary to the findings hereinafter appearing that the union
sponsored strike was illegal I ani satisfied that any requirement resting on the proponent
herein to prove that the majority representation continued subsequent to the termination
of the strike (See Dorsey Trailers, 179 F. 2d 589 (C. A. 5) has been more than satisfied by
the above stipulated and undisputed testimony.
119 IRR\i, at page 1033.
HIGGINS, INC.
As to the second point made by the Respondent, that the Union no longer-
represented the employees because it had ceased to function as a labor organiza-
tion, it is a fact that prior to the strike, under the terms of the existing contract,
the Respondent checked off union dues from its employees' monthly wages but.
ceased making such deductions after the strike was broken on the theory that
the contract was no longer "in effect." However, Union Administrator Leary,
testified credibly and without contradiction that in August 1947, "several hun-
dred" union members voluntarily paid their dues notwithstanding that he, as
administrator, made no effort to collect dues because the Union, lacking a.
contract, was not actually rendering any service to the employees as their
representative. It is nevertheless obvious from Leary's testimony, as well as.
the record generally, that at the time of the hearing a large number of union.
members (probably a majority thereof) were 3 months or more behind in their
dues payments and, therefore, technically riot members in good standing under-
the provisions of Section 9 of Article II, of the Union's bylaws.' But delinquency
in dues does not negative the presumption of continuing majority," especially
under circumstances where, as herein disclosed, the payment of monthly dues.
had in effect been temporarily waived."
Referring to the third contention of the Respondent, that the Union had been
superseded in the fall of 1947 by a labor-management committee, the only
substantial testimony in the record as to the creation and existence of such a
committee is that of Respondent's Personnel Director Feise. Feise testified
that in November or December 1.947, an electrician by the name of De Rouen
and one or two other unnamed employees in the Industrial Canal plant ap-
proached him and suggested that it would be "a good idea if they had some
kind of representation" ; that after talking the matter over with Mr. Higgins,
Sr. (the owner of the Respondent) and securing his approval, Feise okayed the
plan; that thereafter an election was held on company time and property in
each department in the Industrial Canal plant under the auspices of a committee
consisting of Weise, representing management, and two employees, at which time
approximately 20 employee delegates to the labor-management committee were
selected; a majority of them being union employees; that thereafter regular
meetings were held with the management members of the committee wherein
wage rates, vacations, hours of work, promotions, discharges, working conditions,,
and other subjects were "discussed" ; and that copies of the minutes of each
meeting were furnished each delegate, and the various foremen, as well as being
posted on the bulletin board in each department. There is no, evidence of an at
tempt to form any such labor-management committee in the Michaud plant of
the Respondent, and Feise's testimony is credited that there was no such
committee in the latter plant.
Aside from the fact that the employee members of the Industrial Canal labor-
management committee were to some extent assisted, if not sponsored, by man-
agement," it is clear that the committee functioned only as a consultive group.
It did not purport to act as a substitute or successor to the Union as, the repre-
sentative of the employees in the bargaining unit nor did it seek to secure a
9 (Article II, Section 9) : "A member in good standing shall be one who is not three (31
months or more in arrears in the payment of his dues. . .
10 Pure Oil Company, 62 NLRB 1039.
"Cf. N. L. R. B. v. National Seal Corp., 127 F. 2d 776. (C. A. 2).
12 No finding as to assistance by the Respondent in the formation or activities of this labor-
management committee is made herein as it was neither pleaded nor litigated.
- 903547-51-vol. 90-14
194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract with the Respondent beneficial to the employees. This labor-manage-
ment committee, insofar as it represented the uncoerced desires of the employees
in the plant, evidenced only that those employees recognized the disadvantage to
them of lack of representation.
Assuming arguendo that a majority of the employees in the Industrial Canal
plant, as well as management, in November or December 1947 intended to sub-
stitute the labor-management committee for the union in collective bargaining,
this would be no evidence of legitimate loss of majority by the Union (even if
limited to the unit in the Industrial Canal plant) for the following reason. The
Union had been certified by the Board as the bargaining representative of the
employees on April 8, 1946. On August 2, 1947, after the strike was called off
and when it requested the Respondent to resume bargaining negotiations, it
admittedly represented a` majority of the employees in the unit in the two
plants. On August 4, the Respondent, in effect, refused to recognize or bargain
with the Union. Nothing had transpired in the intervening 2 days to warrant
the Respondent in assuming that the Union had lost that majority status; and asp
hereafter found, the Respondent's August 4 action constituted a violation of
Section 8 (a) (5) of the Act. In view of this unfair labor practice by the
Respondent, the Union's continuing majority for a reasonable time thereafter
must be presumed."
Furthermore, it would be a violation of the Act for the Respondent to disregard
the bargaining representative and negotiate with the employees individually or
in groups, and then set up the defection of union members it had thus induced
.as justification for refusal to recognize and bargain with the Union, even though
it appeared that thereby the Union had lost its majority."
I, therefore, reject the Respondent's contention that the employees, by any
or all of the above activities, repudiated the Union as their bargaining repre-
sentative and, find upon the entire record that, on April 8, 1.946, the Union was.
.and at all times since has continued to be, the exclusive representative of all
the employees in each of the Respondent's plants in the unit above described
for the purposes of collective bargaining with respect to rates of pay, wages,
]lours of employment, and other conditions of employment within the meaning
.of Section 9 (a) of the Act and the amended Act.
3. The refusal to bargain
As heretofore found, the negotiations for a wage increase were interrupted
on July 24 by the Union as a result of its strike called while negotiations were
in progress* that day. On July 29, however, the Union notified the Respondent
that it would accept the employer's counterproposal submitted during the July
.24 negotiations. On July 29 the Respondent notified the Union that the strike
broke the contract and that the Union had "thereby forfeited" its right to
represent the employees. On July 30 the Union reasserted its representative
;status and requested the Respondent to meet with it for the purpose of "nego-
tiating a new working agreement." On August 2 it again made written request
for a bargaining conference and suggested that the conferees meet for that
purpose on August 5. On August 4 the Respondent answered the Union's August
2 request as well as its previous ones, stating that Respondent's position had
not changed since its July 29 letter. In September following the Respondent
11 Toledo Desk and Fixture Company, 75 NLRB 744.
14 Aledo Photo Corp. v. N. L. R. B., 321 U. S. 678.
HIGGINS, INC. 195
informally reiterated its position to cease dealing with the Union. Finally in
November or December of that year Personnel Director Feise repulsed Admin-
istrator Leary's appeal that bargaining with the Union be resumed by stating
that the Respondent did not believe the Union represented its employees. The
Respondent has not since changed its attitude.
Neither the fact that the Union had temporarily interrupted bargaining nego.
tiations, nor the strike (even if we assume its illegality), relieved the Respondent
of its statutory duty to bargain with the chosen representative of its employees.36
I therefore find, contrary to the contention of the Respondent that by the above
acts it refused to bargain with the Union on July 29, 1947, and thereafter.
The Respondent, however, contends that the strike, being in violation of a
provision of the contract, it was under no statutory duty thereafter to bargain
with the Union which was responsible for the strike. To pass on the merits of
this defense, it, is necessary to ascertain first whether the contract containing the
no-strike clause was in fact in existence at the time the strike was called on
July 24, 1947, or whether the contract had been legally terminated prior to
that time.
As heretofore found, the 1946 contract between the Union and the Respondent
was effective to June 23, 1947, and from year to year thereafter unless either
party notified the other in writing "not less than 30 days prior to" June 23.of an
intention to modify or terminate the agreement. On May 24, 1947, the Union
sent to the Respondent written notice of its intention to modify the terms of the
contract. This notice was received by the Respondent on May 26 and was ob-
viously an untimely notice, as contended by the Respondent at the time. Never-
theless, the Respondent, beginning about May 26 and continuing up to and in-
cluding July 24, 1947, held a number of bargaining conferences with the Union
on the latter's demand for an increase in the wage schedule rates set forth in the
contract. By so doing, the Respondent waived the defect in the notice and
agreed to bargain on proposed changes in the contract terms.16
As heretofore appears, Section 1 of Article XXI-III of the contract provides
that in the event of negotiations to modify its terms, the termination date of the
contract will be automatically extended for an additional 30-day period, but if
at the end of the 30-day extension, the modifications have not been agreed to,
the contract can "then be terminated" by either party by written notice. On
July 23, 1947 (30 days from the normal contract termination date), the parties
were still in disagreement on modifications ; so the Union, following. this provi-
11 Consumers Lumber and Veneer Co ., 63 NLRB 17.
16 The Respondent 's apparent position is that it agreed tentatively to negotiate on changes
in the wage schedules provided that the Union arbitrated the timeliness of the modification
notice, but that the Union repudiated the arbitration arrangement . In other words, if I
understand the Respondent ' s position correctly in this respect , the Respondent feels that it
should not be held strictly to the negotiations when the Union in fact had not lived up to
the arbitration part of the general arrangement . However, Attorney Martin on July 29,
1947, wrote the Union that on July 18, the Respondent notified the Union it would . assume
that the contract had been "automatically extended " to June 1948 unless the arbitration was
processed "immediately ." Notwithstanding this stated position of the Respondent , it con-
tinued after July 18 to negotiate on the union demands, and indeed on July 24 offered to
grant the wage demands of the Union so far as the Industrial Canal plant was concerned
and make some wage adjustments in the Michaud plant. Certainly , if the Respondent
understood on or about July 18 that the contract ( including the wage schedules ) had been
automatically extended for an additional year , there was no point in negotiating thereafter,
or in answering the Union ' s request for an immediate wage increase with a counterproposal
granting the demands in part.
.196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sion of the contract, at the opening of negotiations at 9:30 a. in. on July 24, gave
written notice that the contract was terminated forthwith.'
The second paragraph of Section 1 of Article XXYIII, above referred to does
not require advance notice of intention to terminate the contract under circum-
stances above set forth, but states specifically that "after" the 30-day extension
has expired, the contract "may then be terminated by either party upon giving
written notice to the other." [Emphasis supplied.] It therefore appears, and
I find, that at 10 a, in. on July 24, 1947, the previously existing. contract between
the parties had been terminated and was no longer in effect. It logically follows,
and I also find, contrary to the contention of the Respondent, that the strike
called by the Union on July-24 was not an illegal strike.
Again assuming atguen-do that the contract had in fact not' terminated on
July 24 and that the strike was illegal, I cannot agree that the Respondent there-
after owed no duty to bargain with the Union under the circumstances herein
detailed. It is, of course, true that the Respondent could have penalized the
dllegal economic strikers by hiring replacements and refusing to put the strikers
back to work." The Respondent, however, did not see fit to pursue this action
against its employees but, on the contrary, instead of hiring replacements, it.
reinstated all the strikers save and except the leaders thereof.' In. so doing,
It majority of the employees in both units continued to be members of the Union.
Thereafter, on demand by the previously authorized and recognized representa-
tive of the employees that bargaining negotiations and relations be resumed,
it could not refuse the request and then justify such action as a further penaliza-
tion of the employees for their.ill-considered and illegal strike.."
In reinstating the strikers, the Respondent in effect condoned their prior
illegal activities.20 Thereafter, the Respondent still was under the statutory
duty to bargain with the representative of its employees." The Respondent:
argues that the Highland Shoe case," cited - by the General Counsel, is not in
Point because the strike in the JIiJhlun.cl case was not in violation of the contract
terms but merely terminated the contract, and that the holding in that case was
that after a contract has been terminated, the Employer owes a duty to bargain
oil demand by the authorized representative of his employees. However, I note
that the court, in discussing the rather unusual circumstances involved in the
Highland strike, went considerably farther than the Respondent indicates when.
it stated
Furthermore, unless the statutory duty to bargain collectively is held to.
remain in force even after a labor contract previously made has been broken,
the purpose of the Act to promote industrial peace through collective bar-
gaining will be attained only in small measure.
The Board took substantially the same position as the above-quoted portiont
of the decision of the Circuit Court of Appeals for the First Circuit in the-
"The written notice actually stated that the contract terminated as of "12 : 01 a. nn."
on July 24. Of course, the Union could not arbitrarily give retroactive effect to its termi-
nation notice (even for a few hours), but the notice was adequate to put the Respondent on.
notice that the contract, under its terms, had been terminated as of 9 30 a. m. on that day._
X. L. R. B. v. Fansteel Metallurgical Corp., 306 U. S. 240..
Y. L. R. B. V. Reed. it Prince Mfg. Co., 130 F. 2c1 765.
20 Stewart Die Casting Corp. v. N. L. R. B., 114 F. 241 849 (C. A. 7) ; Alabanla Marble Co.,.
83 NLRB 1047.
21 National Electric Products Corporation, 80 NLRB 995.
22 N. L. R. B. v. Highland Shoe Company, 119 F. 2d 218.
HIGGINS, INC. 197
Highland case when it rejected in Consumers Lumber ct Veneer Co.,.63 NLRB 17,
the Employer's contention' that the Union forfeited the right to bargain by
breaching the contract.'
The Respondent cites a number of cases to support its contention that it was
"exonerated in bargaining further with the Union which had breached its
contract." These cases will now be discussed.
In Sands Manufacturing Co., 306 U. S. 332, the plant was closed by the act of
the Union. When the plant was later reopened by Sands, the Union sought again
to bargain with it. The Court said:
As the Respondent had lawfully secured others to fill the places of the
former employes and employes and recognized a new union, which, so far
as appears, represented a majority of its employes, the old union and its
shop committee were no longer in a position on September 4th to demand
collective bargaining on behalf of the Company's employes.
In United Biscuit Co., 128 F. 2d 771, the Seventh Circuit Court of Appeals found
that certain employees who had struck in violation of the terms of a contract
were not entitled to reinstatement. The Court in that case did not disturb the
Board's finding of a refusal to bargain. In Timken Roller Bearing Co., 161 F.
2d 949, the Union struck in violation of its contract, and Timken refused to
bargain with the Union during the pendency of the strike. The Sixth Circuit
Court of Appeals reversed the Board's finding that this constituted a refusal to
bargain. When the strike was called off, however, Timken resumed bargaining
negotiations with the Union and subsequently a new contract was executed.
In Graham v. Boeing Airplane Co., 22 L. R. R. Al. 2343, a Federal Circuit Court
refused to issue an injunction requiring Boeing to bargain with. the Union where
it appeared that there was in existence a contract which had been violated by
the strike. The Court also found that the Union had failed to comply with
the proviso to Section 8 (d) of the Act,24 and under all the circumstances refused
the injunction because the Union "at present has no authority to represent" the
employees. [Emphasis supplied.]
In two other cases cited by the Respondent, Scullin Steel Co., 65 NLRB 1294,
and Joseph Dyson & Sons, 72 NLRB 445, the Board found in effect that certain
conduct of strikers was unprotected and justified their discharge or barred their
reinstatement. I find no support in any of the above-cited cases for the conten-
tion that breach of contract by a union immunizes an employer thereafter from
bargaining on demand with that union where, as in the present case, the union
continued to be the bargaining representative of the employees.
The Respondent further argues that because the request for bargaining came
xa See also N. L. R. B. V. Reed ct Prince Mfg. Co., 118 F. 2d 874, at p. 885.
24 The proviso to Section 8 ( d) of the Act above referred to, insofar as here material,
reads as follows :
Provided , that where there is in effect a collective bargaining contract covering
employees in an industry affecting commerce , the duty to bargain collectively shall
also mean that no party to such contract shall terminate or modify such contract, unless
the party desiring such . termination or modification-
(1) serves a written notice upon the other party to the contract of the proposed
termination or modification 60 days prior to the expiration date thereof , or in the
event such contract contains no expiration date, 60 days prior to the time it is
proposed to make such termination or modification.
(Section 8 ( d), added by amendment to the Act, became effective August 22 , 1947. It is
not retroactive in its effect so would not apply in any event to the activities of the Union
in the instant case.]
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from President Weightman and later from Administrator Leary's provisional
board ( consisting of the leaders of the strike ) it owed no duty to bargain with
them because they had all been discharged . It is true that the Respondent
did not owe a duty to bargain with any of these former employees as such, but it
was not asked to bargain with them on their behalf as employees . The Respond-
ent had been requested to bargain with the Union as the representative of its
employees . The fact that the Union sought to do its negotiating with the Re-
spondent through certain representatives was not , and should not be, any con-
cern of the employer . It is well settled that an Employer cannot dictate who
the union shall select to participate in the actual bargaining.'
1, therefore , reject each and all of the above contentions , and find that the
Respondent on July 29, 1947, and at all times thereafter , by refusing to bargain
collectively with the Union as the exclusive representative of its employees in
the appropriate unit, has interfered with , restrained , and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act and the amended
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations of the Respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the Respondent has engaged in unfair labor
practices, it will be recommended that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
Because of the basis of the Respondent's refusal to bargain and the absence
of any evidence that danger of other unfair labor practices is to be anticipated
from the Respondent's conduct in the past, it will not be recommended that the
Respondent cease and desist from the commission of all unfair labor practices.
However, in order to effectuate the policies of the Act, it will be recommended
that the Respondent cease and desist from the Unfair labor practices found and
from any other action in any manner interfering with the efforts of the Union
to negotiate for or to represent the employees as exclusive bargaining agent in
the unit found therein to be appropriate.
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Industrial Union of Marine and Shipbuilding Workers of America, Local
.73, C. I. 0., is a labor organization within the meaning of Section 2 (5) of the
Act and the amended Act.
2. The following employees in the Industrial Canal and also in the Michaud
plants of the Respondent constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9 (b) of the Act and the
amended Act :
All production and maintenance employees, including leader men and
assistant foremen, but excluding construction employees, boat crews, plant
25 See Oliver Corp ., 74 NLRB 43 ; and Kentucky Utilities Co ., 76 NLRB 845.
HIGGINS, INC. 199
protection employees, production clerks, inspectors, office and clerical em-
ployees, foremen and other supervisory employees with authority to hire,
promote, discharge, discipline or otherwise effect changes in the status of
employees or effectively recommend such action.
3. Industrial Union of Marine and Shipbuilding Workers of America, Local 73,
C. I. 0., was on April 8, 1946, and at all times thereafter has been and now is the
exclusive representative of all employees in- the aforesaid unit for the purposes
of collective bargaining within the meaning of Section 9 (a) of the Act and the
amended Act.
4. By refusing on July 29 and August 4, 1947, and at all times thereafter, to
bargain collectively with Industrial Union of Marine and Shipbuilding Workers
of America, Local 73, C. I. O. as the exclusive representative of all its employees
in the aforesaid unit, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (5) of the Act and Section 8 (a)
(5) of the amended Act.
5. By said acts, the Respondent has interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of the Act,
and has engaged in and is engaging in, unfair labor practices within the meaning
of Section 8 (1) of the Act and Section 8 (a) (1) of the amended Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act and the
amended Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that the Respondent Higgins, Inc., of
New Orleans, Louisiana, and its agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain with Industrial Union of Marine and Shipbuilding
Workers of America, Local 73, C. I. 0., as the exclusive representative of its
employees in the Industrial Canal and Michaud plants in the afore-described
appropriate unit;
(b) Engaging in any other acts in any manner interfering with the efforts of
said Union to negotiate for or represent the employees in the aforesaid unit as
exclusive bargaining agent.
2. Take the following affirmative action which I find will effectuate the policies
of the Act :
(a) Upon request bargain collectively with Industrial Union of Marine and
Shipbuilding Workers of America, Local 73, C. I. 0., as the exclusive representa-
tive of all employees in the bargaining unit described herein with respect to,
wages, rates of pay, hours of employment, or other conditions of employment,
and if an understanding is reached, embody such understanding in a signed
agreement ;
(b) Post at its Industrial Canal and Michaud plants in New Orleans, Louisiana,
copies of the notice attached to the Intermediate Report herein marked Appendix
A. Copies of said notice, to be furnished by the Regional Director for the
Fifteenth Region, shall, after being duly signed by the Respondent's representa-
tive, be posted by the Respondent immediately upon receipt thereof and main-
tained by it for sixty (60) consecutive days thereafter in conspicuous places, in-
cluding all places where notices to employees are, customarily posted. Reason-
able steps shall be taken by Respondent to insure that said notices are not altered,
defaced, or covered by any other material ;
'200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) File With the Regional Director for the Fifteenth Region on or before
twenty (20) days from. the date of the receipt of this Intermediate Report a -
report in writing setting forth ,in detail the inner and form in which the
.Respondent has complied with the foregoing recommendations.
It is further recommended that unless on or before twenty (20) days from the
receipt of this Intermediate Report, the Respondent notifies such Regional Di-
rector in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the Respondent to take
the action aforesaid.
As provided in Section 203.46 of the Rules and Regulations of the National
'Labor Relations Board any party may, within twenty (20) days from the date
,,of service of the order transferring the case to the Board, pursuant to Section
:203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C.,
an original and six copies of a statement in. writing setting forth such exceptions
to the Intermediate Report or to any other part of the record or proceeding
(including rulings upon, all motions or objections) as he relies upon, together
with the original and six copies of a brief in support thereof ; and any party
may, within the same period, file an original and six copies of a brief in support
.of the Intermediate Report. Immediately upon the filing of such statement of
exceptions and/or briefs, the party filing the same shall serve a copy thereof upon
each of the other parties. Statements of exceptions and briefs shall designate
by precise citation the portions of the record relied upon and shall be legibly
printed or mimeographed, and if mimeographed shall be double spaced. Proof of
service on the other parties of all papers filed with the Board shall be promptly
-made as required by Section 203.85. As further provided in said Section 203.46
should any, party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board within ten (10) days from the
date of service of the order transferring the case to the Board.
In the event no Statement of Exceptionsis filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
-mended order herein contained shall, as provided in Section 203.48 of said 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.
Dated at Washington, D. C., this 16th day of March 1950.
J. J. FITZPATRICK,
Trial Examiner.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to 'the recommendations of a Trial Examiner of the National Labor
Relations Board, and- in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT engage in any acts in any manner interfering with the
efforts Of INDUSTRIAL UNION OF MARINE AND SHIPBUILDING WORKERS OF
AMERICA, LOCAL 73 C. I. 0., to negotiate for or represent the employees in
the bargaining unit described below. •
WE WILL bargain collectively upon request with the above-named union
as the exclusive representative of all employees in the bargaining. unit de-
scribed below with respect to wages, rates of pay, hours of employment,
^or other conditions of employment, and if an understanding is reached,
HIGGINS, INC. 201
embody such understanding in a signed agreement. The bargaining unit
is:
All production and maintenance employees, in the Respondent's Industrial
Canal and Michaud plants including leader men and. assistant foremen,
but excluding construction employees, boat crews, plant-protection em-
ployees, production clerks, inspectors, office and clerical employees, fore=
men, and other supervisory employees with authority to hire, promote, dis-
charge, discipline or otherwise effect changes in the status of employees or
effectively recommend such action.
HIGGINs, INC., Employer.
By -------------------------
(Representative ) (Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.