Huss & Schlieper Co.

National Labor Relations Board - Board Decisions

Dec 15, 1971

194 N.L.R.B. 572 (N.L.R.B. 1971)

572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Huss & Schlieper Company and M . Tom Sawyer and
Kenneth D. Pryor and Sheet Metal Workers
International Association , Local 113. Cases 38-CA-
1103-1, 38-CA-1103-2, and 38-CA-1103-3
December 15, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On July 12, 1971, Trial Examiner Ivar H. Peterson
issued the attached Decision in this proceeding.'
Thereafter, Respondent filed exceptions and a sup-
porting brief,2 and the General Counsel filed a brief in
support of the Trial Examiner's Decision. Respondent
filed a brief in answer to the General Counsel's brief.
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 Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order.3
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 Trial Examiner and hereby orders that
the Respondent, Huss & Schlieper, Decatur, Illinois,
its officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's recom-
mended Order, as herein modified .4
i On August 26, 1971 , the Board issued an Order in this matter adopting
the Trial Examiner's Decision and Order We hereby vacate that Order.
2 Respondent 's counsel failed to file timely exceptions in accordance
with Sec . 102 46 of the National Labor Relations Board's Rules and
Regulations . The Board, based on extenuating circumstances shown by
supporting documents requested by and filed with the Board , has agreed to
accept and consider Respondent 's exceptions and briefs.
3 The Board finds ment in Respondent's Exception 10 Our review of
the record reveals that contrary to the Trial Examiner 's finding that "He
lTnpp ] testified that he saw Pryor and Sawyer with clubs in their hands at
the picket line," last complete ¶ of left column on 574, the testimony was
that "He (Tripp) testified that he saw a club in the vicinity of Pryor and
Sawyer on the picket line; but he never saw either one holding it" The
Board also in agreement with Respondent 's Exception 28 corrects the Trial
Examiner's obvious inadvertency by substituting the name "Bracken"
wherever the name "Bassett" appears in last ¶ starting on left column of 575
and ending on right column
4 Substitute the attached notice for the Trial Examiner's
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found,
after a trial, that we violated Federal law by
discharging Kenneth D. Pryor and M. Tom Sawyer
because of their union activity:
WE WILL offer Kenneth D. Pryor and M. Tom
Sawyer full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equiva-
lent positions, and pay them for the earnings they
lost as a result of their discharge, plus 6-percent
interest.
WE WILL NOT discharge or discriminate against
any employee for supporting Sheet Metal Workers
International Association, Local 133, or any other
union.
WE WILL NOT unlawfully interfere with our
employees' union activities.
Huss & SCHLIEPER
COMPANY
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named individ-
uals, if presently serving in the Armed Forces of the
United States, of the right to full reinstatement, upon
application after discharge from the Armed Forces, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Borard's
Office, Savings Center Tower, _ 10th Floor, 411
Hamilton Boulevard, Peoria, Illinois 61602, Tele-
phone 309-673-9282.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
IvAR H. PETERSON, Trial Examiner: This consolidated
proceeding was tried in Decatur, Illinois, on May 6 and 7,
1971. The charges were initially filed on February 5 and
later amended . The complaint was issued on March 29. The
primary issue is whether the Respondent unlawfully refused
to reinstate Pryor and Sawyer on December 14, 1970, upon
their unconditional application to return to work following
194 NLRB No. 90
HUSS & SCHLIEPER CO.
a strike which lasted from April 16 to December 14. The
Respondent in its answer denied the commission of any
unfair labor practices and asserted that a settlement
agreement negotiated with the Union expressly provided
that the Union would find other work for Pryor and Sawyer
and they would not be called back to work when the
Respondent resumed operations. Furthermore, the Respon-
dent alleged that Pryor and Sawyer had engaged in
unlawful activity during the strike which removed them
from the protection of the Act.
Upon the entire record,' including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by counsel for the General Counsel and
Respondent on June 11, I make the following:
FINDINGS OF FACT
1. JURISDICTION
The Respondent, a partnership consisting of Royce Huss
and P. Jerome Schlieper, is engaged at Decatur, Illinois, in
making fan equipment for elevators and for other
commercial applications. The Respondent admits and I
find that in the 12 months preceding issuance of the
complaint it sold and shipped from its Decatur plant
products valued in excess of $50,000 to points outside the
State of Illinois and, during the same period, purchased and
caused to be transferred and delivered to its plant from
points outside the State of Illinois goods and materials
valued in excess of $50,000. Accordingly, I find that it is
engaged in commerce Within the meaning of Section 2(6)
and (7) of the Act. I also find that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Following a Board election in March 1968, the Union
was certified as the exclusive representative of the
Respondent's production and maintenance employees.
Thereafter the parties entered into a collective-bargaining
agreement which had an expiration date of March 31, 1970;
it was, however, extended for 15 days, until April 15. On
April 16 the employees went on a strike, which continued
until December 14. At that time the parties reached
.agreement on a contract. At the time the strike began the
Union had 39 members in the bargaining unit. During the
course of the strike the Union and the Respondent met
some 8 or 10 times in an effort to negotiate a contract. At
the first session , on August 26, the Respondent took the
position that Pryor and Sawyer and two other employees
would not be rehired because, it claimed, they had engaged
in misconduct during the strike. Pryor was a member of the
Union's executive board at the time the strike began, and
Sawyer was a steward. Both of them engaged in picketing
activities during the course of the strike and attended the
union meetings.
At the November 4 bargaining session the Respondent
handed the Union a complete contract proposal and a
573
proposed settlement agreement . In this proposed settlement
agreement the Respondent provided that with respect to
Pryor, Sawyer , and the other two employees the Union
would "use its best efforts to find other employment" for
them and that they would submit their resignations to the
Respondent and would not seek to return to work for the
Respondent or make any claim against the Respondent. In
addition , the proposed agreement recited that the Union
"agrees to release the company for all grievances , claims
and charges arising out of such strike and picketing"
including any causes of action against the Respondent
which members of the Union , their wives, families, or
sympathizers might have against the Respondent or the
wife of partner Schlieper arising out of an incident at the
Respondent 's premises on July 21, and that the individual
involved in that incident and her husband would execute
and deliver a general release of any such claims . On behalf
of the Union, Bracken refused to execute the proposed
agreement , maintaining that all employees should, be
returned to work.
At the December 8 bargaining session the Union made
two contract proposals (article II-B and article III-B)
which, respectively, read as follows:
Article II-B
The company understands and agrees that the terms
of this agreement shall apply one to their production
and maintenance employees and those production
items as shown on a list , brochure or other material
describing such items and/or equipment manufactured
by the company to be attached to this agreement as an
addendum thereto.
Should the company desire to fabricate or manufac-
ture a new line of additional items and/or equipment,
they, hereby, agree to notify the local union agent in
writing of their intent to do so and , further, agree to
meet to determine if such items should be classified as
work normally performed by building trades journey-
man sheet metal workers . In the event of such a
determination , the company agrees to re-open this
agreement for the purpose , only of negotiating an
addendum to meet the conditions of the agreement in
effect with the building trades local union affiliated
with the Sheet Metal Workers International Associa-
tion . If no agreement is reached within 90 days from re-
opening of this agreement, the union shall have the right
to terminate this agreement.
Article III-B
All employees covered by this agreement shall be
required , as a condition of employment , to become and
remain members of the Union in good standing during
the term of this agreement. All employees shall make
application for membership in the Union within 30 days
following the effective date of this agreement , or within
30 days from the beginning of their employment,
whichever is later.
The Respondent rejected these proposals. The Respondent
I Respondent's motion to receive in evidence its Exh 7, which had been
marked for identification, is granted.
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also brought up a proposal that the Union would have to
agree that the four employees would not return to work,
explaining that they were responsible for some broken tree
limbs, broken windows, and tacks thrown in the driveway.
The following day, December 9, the parties met again with
the aid of a Federal Mediator. The parties again negotiated
on the Union's two proposed contract clauses, but they did
not discuss the proposed resignation of the four men.. On
this occasion the parties agreed to the Company's proposal
with regard to article II-B and the Company's proposal with
respect to article III-B. On December 14, the parties signed
copies of the agreement. Thereupon Schlieper asked
Bracken what the four men were going to do and Bracken
replied that he did not know. Schlieper stated that if
Bracken would secure their resignations he would not
contest their drawing unemployment compensation insur-
ance. Bracken declined to make any such agreement. A few
days later, Bracken was called on the telephone by attorney
Ingram who stated that the Company had appeals before
the General Counsel, that the latter "was going to rule in
the Company's favor on the appeals" but if Bracken would
agree to secure resignations from the four employees he
would withdraw the appeals. Ingram further stated that if
Bracken would sign a statement that the men did not wish
to return to work he also would withdraw the appeals.
Bracken said he would not do so as that matter had nothing
to do with the contract. About noon on January 5, Bracken
and three of the men (not including Sawyer) went to the
Company's, reception area to pick up their vacation checks
and again endeavor to be rehired. Office Manager Jack
Wayne asked them to sit down and wait while he went
elsewhere to obtain a statement which he handed to the
men and asked them to sign before they were given their
vacation checks. The men refused. Thereupon Wayne
dictated a draft letter to Partner Huss with Bracken's name
typed at the bottom which recited that Bracken would
"secure other employment" for the four men "who do not
wish to work for Huss and Schlieper" and that he
understood the Respondent would not contest the men
receiving unemployment compensation . Bracken refused to
sign. On January 7 Sawyer, in Bracken's presence in the
latter's office , telephoned Schlieper and asked when he was
going to be called back to work . Schlieper refused to rehire
Sawyer.
Several witnesses for the Respondent testified that
Bracken had instructed them initially to park their
automobiles in the Respondent's driveway but, when he
was advised by the police that this was not permissible, he
told the pickets that they should no longer park automo-
biles in the driveway.
Floyd Tripp, who has been employed by the Respondent
approximately 10 years and was president and chief
steward and on the bargaining committee at the time of the
strike, testified that he participated in the strike. He testified
that he saw Pryor and Sawyer with clubs in their hands at
the picket line. He further testified that during the strike a
petition to decertify the Union was being circulated and
that Pryor and another striker, Don Marlow, visited his
home and later called him to inquire whether he (Tripp)
had started the petition.
Another employee, Kenneth Ramsey, testified that
Bracken at the beginning of the strike told the strikers that
they could park anywhere they wished and to stop all trucks
going into the Respondent's plant. Ramsey further stated
that early in November he was a passenger in a car driven
by Sawyer; Pryor also was a passenger . He related that the
car followed an outside truck down the road, that Pryor
told the driver of the truck to pull over and Pryor spoke to
the truckdriver. However, Ramsey could not recall what
was said. Later, however, Ramsey stated that Pryor asked
the truckdriver if he knew the Respondent's employees
were on strike, that the driver answered he did not, and
Pryor then asked the driver not to come back, and that the
driver agreed he would not.
Paul Moore, an employee who participated in the strike,
testified that in the latter part of October he was
approached by Pryor and Sawyer and two others, who
accused him of starting the decertification petition.
Apparently some hard words were exchanged during the
course of this encounter.
Gerald Thomas, who also participated in the strike,
stated that after he had returned to work he received a
telephone call from a striking employee , Marlow , in which
Marlow stated that he "was going to get me (Thomas) on
the skirmish line." Thomas further related that Pryor
approached him on the picket line and, with reference to
the petition, stated he "was going to get me (Thomas)."
John Napierski, an employee who also was active on the
picket line, testified that Bracken gave him and another
striker instructions to park automobiles in the middle of the
drive.
Walter Boehm, also a striking employee, testified that he
saw Sawyer carrying a stick, approximately 18 inches long,
which , according to Boehm , Sawyer termed his
"persuader." -
Clarence Cushing, another striker, testified that at the
contract ratification meeting Bracken stated that if the
employees accepted the contract "there would be names
gived out who had been sleeping with the Company and
there would be bloodshed."
Respondent 's witness Mitchell Birdwell testified that he
regularly stopped outside trucks at the picket line and asked
the drivers not to enter the Respondent's premises. In
addition , he testified that on one occasion when he was on
the picket line with Pryor, the latter stood in front of the car
of Respondent's draftsman, Kenny Frank, as it approached
the picket line. He related that Frank proceeded very slowly
towards Pryor and when he came quite close Pryor stepped
aside and Frank proceeded into the parking lot without
having come to a full stop.
John Wayne, the Respondent's office manager, testified
that on June 16 he saw Sawyer, who had a "club" in his
hand, and Pryor approached a car stopped in the driveway.
He proceeded to take two pictures of this incident. He
added that the automobiles belonging to Pryor and Sawyer
were parked in the driveway. Wayne also related that on
July 14 a customer of the Respondent stopped at the gate
and both Pryor and Sawyer were physically blocking the
entrance to the plant. Wayne proceeded to take a
photograph of this incident. Wayne further related that
there was mass picketing on July 22 and that the wives and
children of the pickets joined therein.
HUSS & SCHLIEPER CO.
Partner Schlieper testified that at the December 8
negotiation session the International's director of organiza-
tion, Lonnie Bassett, stated that he had been sent by the
International in an effort to reach a settlement and that if
the Respondent accepted the Union's proposed article II-B,
then the Respondent would not have to worry about taking
Sawyer, Pryor, and two other strikers back. He added that
the Respondent accepted this proposal after some changes
were made in the wording of the contract clause. The next
day, December 9, the parties met again and resolved all
remaining issues except the Union's proposal regarding
union security. Schlieper further testified that the afternoon
of December 10 Bassett telephoned and stated that the
Union would accept the Company's last proposal regarding
article III-B, and that Bassett requested Schlieper to have
the contract drawn up and to call Bracken as soon as
possible so that the latter could present it to the
membership for ratification. On this occasion, according to
Schlieper, he reminded Bassett that the four employees that
had been discussed, including Pryor and Sawyer, would not
be returned to work and after Bassett assured him that the
four would not cause any trouble. Schlieper testified that
Bracken picked up the draft contract on December 11 and
on that occasion Schlieper asked Bracken about the four
men and Bracken assured him they would not cause any
trouble. On December 13 Schlieper was notified that the
contract had been ratified and the next day, December 14,
the contract was signed. On that occasion Schlieper asked
Bracken to sign a release with respect to the four
employees. Bracken refused to do so but, according to
Schlieper, assured Schlieper that there would be no trouble
from the four and no unfair labor practice charges would be
filed. Schlieper acknowledged that Sawyer contacted him
by telephone on February 4 and that he (Schlieper) related
why Sawyer would not be recalled.
Glenn Spitzer, the Respondent's plant superintendent
and a member of its bargaining team, substantially
corroborated the foregoing testimony of Partner Schlieper.
Spitzer further related that on July 22, as he was leaving the
plant at about 6:30 p.m., he saw Pryor and several others at
the plant gate picketing; that there were two cars in the
driveway; and that broken bottles were strewn around.
Spitzer further testified that Marlow and Pryor got in front
of the witness' car and stopped him, that they were cursing
and that Marlow threw something against the side of the
car. Finally, he stated that Pryor struck the side window of
the car and chipped the glass.
Bracken was called by the General Counsel on rebuttal
and denied that at the ratification meeting on December 13
he made any statement to the effect that there would be
bloodshed. He also denied that he stated he had a list of
men "who were in bed" with Schlieper and that he was
going to give this list out to union people. Bassett recalled
that he did have a conversation early in November with
Paul Moore concerning the decertification petition. He
related that he told Moore "Well, Paul, we have to stick
together on this thing. This is certainly not the best method
2 Prior to and during the hearing the Respondent endeavored to litigate
two other charges it had filed against the Union (Cases 38-CB-278 and
38-CB-284) which had been dismissed by the Officer-in-Charge whose
action had been sustained on appeal. I declined to litigate the matters
575
of obtaining a decent contract." According to Bassett,
Moore stated he would tear up the document if Bassett so
desired and that he (Bassett) stated, "You'll have to be the
judge of that yourself."
Pryor related that early in November he did have a
conversation with Gerald Thomas in which Pryor stated
that he had found out that Thomas had been distributing
the decertification form and remarked that he did not see
how Thomas "could go that low" after the Union had
interceded in his behalf when the Respondent was going to
lay Thomas off and retain an employee with less seniority.
Pryor testified that he remarked, "I should get you but I am
not going to dirty my hands with you," and that he would
have nothing more to do with Thomas. Regarding the July
14 incident involving Office Manager Wayne, he saw a
truck coming and then stopped his automobile and'got out
and walked slowly with Sawyer toward the driver of the
truck. He asked the driver to honor the picket line and that
Wayne came to the driveway with a camera and asked the
truckdriver if he wished to come through. The driver
answered that he did and then Sawyer and Pryor stepped
aside. Pryor denied that he challenged Wayne. Pryor
related that he attended the ratification meeting but left
after some 15 or 20 minutes, and that during the period he
was in attendance he heard nothing said about bloodshed
or a list of employees.
Concerning the incident that occurred on July 22
involving Plant Superintendent Spitzer, Pryor related that
he and Marlow were walking across the driveway as Spitzer
was approaching in his automobile. Marlow and Pryor
stopped and then Spitzer "started forward and Marlow
moved and I started to move and he bumped my leg and I
stepped out of the way and as he came by I slapped his
window with the back of my hand." Pryor wore a sizable
ring on his right hand which had a raised center.
Pryor related that Sawyer did carry a stick while at the
picket line which was approximately 18 inches long, which
he used to hit gravel back and forth in order "to kill time."
He further testified that he did not use the stick in a
threatening manner in order to prevent anyone crossing the
picket line. Pryor related that he and Sawyer were not the
only pickets who stopped trucks but named eight or nine
employees who had done the same thing but who were now
back at work. Sawyer denied that he stated to Walter
Boehm that the stick he was carrying was his "persuader."
B. Conclusions
As related in the preceding section, both Pryor and
Sawyer, individually, as well as the Union on their behalf,
requested that they be rehired or reinstated shortly after the
conclusion of the strike. Their requests were declined, and
when they made inquiry of Office Manager Wayne as to the
reason, his reply was that it was "obvious." Briefly stated,
the Respondent's defense is that they engaged in miscon-
duct during the strike which disqualifies them for
reemployment.2
Having carefully considered the record and the post-
encompassed by these charges, pointing out that under the law the General
Counsel's disposition of charges was final. Nonetheless, I did allow counsel
for the Respondent to adduce evidence with respect to the matters
encompassed in those charges to the extent that I deemed it relevant as a
(Continued)
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hearing briefs, I come to the conclusion that the
Respondent violated the Act as alleged. As stated above,
the Respondent takes the position that Pryor and Sawyer
engaged in disqualifying misconduct during the strike.
Additionally, the Respondent contends that the CB cases
were settled by an agreement approved by the Officer-in-
Charge, under which Pryor and Sawyer were not to be
returned to work. I find these defenses lacking in merit for
the following reasons.
At the bargaining session held on August 26, the
Respondent for the first time informed the Union that it did
not intend to take back Pryor and Sawyer and two others
(Marlow and Littrell). Partner Schlieper advised Bracken
that the Union would have to agree that the Respondent
did not have to take these four men back before the Umon
could obtain a contract, explaining that his position was
based on the picket line misconduct of these employees.
Bracken denied that they had engaged in such misconduct
and stated that he did not intend to enter into any
agreement whereby these men could not return to work. In
his testimony, Schlieper did not deny any of these facts
recited by Bracken, except to state that the four individuals
were not identified by name.
During the session held on August 28, Schlieper again
stated that before agreement could be'reached the Union
would have to agree that the four individuals would not be
returned to work. During the discussion of this matter,
Schlieper reminded Bracken that Marlow and Littrell had
been fined $50 each for violating a court injunction.3
In reply to this position, Bracken stated that Pryor and
Sawyer had not been in any way involved in the injunction
hearing, and suggested that Schlieper agree to take the four
men back to work with an understanding that the Union
would endeavor to get them jobs in the Building Trade
Industry when possible. Schlieper rejected this proposal. In
his testimony, Schlieper agreed that the four men were
specifically identified in this bargaining session and also
admitted that by this time he had decided not to recall
either Pryor or Sawyer.
In a telephone conversation on September 10, initiated by
Bracken who was then in Washington, D. C., Bracken told
Schlieper, so he testified, that the Union would not make
any agreement with respect to the four individuals, stating,
"Jerry, I have already told you several times before I don't
intend to enter 'any kind of agreement whereby these men
cannot return to work for the Company." At the October 7
meeting between the parties, they again reverted to the
subject of the four men. According to Bracken, Schlieper
stated that this subject was "very important" and that he
did not want the men back on the Respondent's premises.
For the Umon, Bracken stated that the Union was filing
unfair labor practice charges against the Company alleging
defense to the instant charge In his brief , counsel for the Respondent
extensively argues these matters, including copious references to rejected
exhibits proffered in support of the dismissed charges . I adhere to the
ruling I made at the hearing Respondent's post-hearing motion that I
receive Resp. Exh. 7, which was identified but not offered, is granted
3 On July 22, the Circuit Court for the Sixth Judicial District, Macon
County, Illinois, issued a decree, by stipulation of the parties, in which the
Umon was ordered "not unlawfully [to] obstruct the way of ingress and
egress to, the Respondent's plant" in any way or manner so as to prevent
persons or vehicles from entering or leaving ; that the Union and its
adherents "shall not threaten, intimidate or cause damage to the property
refusal to bargain in good faith. In his testimony, Schlieper
denied that the matter of the four individuals was
mentioned during this meeting.
When the parties next met, on November 4, Schlieper
handed Bracken a proposed settlement agreement that he
had drafted, stating that the Union would have to sign it
before a contract could be reached. The proposed
agreement required, among other things, that the Union
obtain the resignations of the four individuals. Bracken
refused to agree to this proposal, in addition stating that
these men were his strongest supporters. Additionally,
Bracken stated that this was not a contract issue and that he
did not wish to discuss it. Schlieper admitted that Bracken
declined to sign the proposed settlement agreement. The
Union did file charges which resulted in a complaint being
issued (Cases Nos. 38-CA-920 and 1029), issued November
27, 1970. At the next session between the parties, held on
December 8, the Respondent again brought up the matter
of the resignation of the four individuals. Schlieper
explained that he desired to obtain their resignations
because of the damage done to the Respondent's property
during the strike. Bassett, the International's director of
operations, who was acting as spokesman for the Union,
stated that he did not condone the things Schlieper claimed
had happened but stated that the Board had issued a
complaint against the Company alleging that the Compa-
ny's insistence on the settlement agreement was an unfair
labor practice. In addition, Bassett stated that he had not
come all the way from Washington, D.C., to sit around and
discuss nonmandatory bargaining subjects. According to
the witnesses produced by the General Counsel, Schlieper
stated that if the parties could reach agreement, the
Respondent would withdraw the proposed settlement
agreement. The parties then proceeded to discuss the
contract issues and , so the government' s witnesses assert,
the subject of the four men was never again mentioned until
after the contract was executed on December 14.
On the other hand, the Respondent's version of the
December 8 meeting is that the Union made an offer to the
effect that the Respondent would not have to take back the
four men if the parties could agree on the language of
article II-B of the contract proposals. Schlieper, on the
behalf of the Respondent, admitted that no such agreement
was made and gave the following version of the December
8 meeting : Bassett, according to Schlieper, began the
meeting by stating that the Union wanted article II-B and,
if the parties could agree on the language of that provision,
the Respondent would not have to worry about taking the
four men back. Someone-Schlieper could not remember
who-made an offer to the effect that the Respondent
would take two of the men back and the other two would be
left out. Finally, according to Schlieper, the parties agreed
of any official, representative, agent, employee, supplier, customer,
equipment maintenance personnel or visitor of the plaintiff or agent or
employees thereof"; that they could not congregate , picket , or gather in
excess of four pickets within 100 feet of the gate or entrance ; that no
person was to drive a motor vehicle at a speed in excess of 5 miles per hour
on the driveway leading to the gate of the plant and that the Respondent
was to erect a large and easily-visible sign at the driveway so indicating;
and that the Union and its adherents "will not park any vehicle on the
improved portion of such driveway ... and will not force any vehicle to
stop or reduce its speed so long as such vehicle is within" the prescribed
speed limit
HUSS & SCHLIEPER CO. 577
that none of the four would have to be returned to
employment. Schlieper was then shown a document,
purporting to be an affidavit that he had dictated and
signed, and which also had been signed by Plant
Superintendent Spitzer and certified as true by Office
Manager Wayne. This affidavit covered the events that
occurred on December 8. After having read the document,
Schlieper was asked if the parties had agreed on December
8 that the four men would not be returned to work. He
admitted that no such agreement had been made.
I find that the parties did not enter into a settlement
agreement providing, among other things, that Pryor and
Sawyer would not be returned to work. In any case, it is
clear that under settled precedent even if such an
adjustment had been made it, would not bar the Board's
exercise of its statutory authority. See Laclede Metal
Products Co., 144 NLRB 15; IUE, Local 613 v. N.L.R.B.,
328 F.2d 723 (C.A. 3, 1964), enfg. 132 NLRB 621.
The principal question is whether Pryor and Sawyer were
engaged in such picket line misconduct as would justify the
Respondent's refusal to take them back to work after the
conclusion of the strike. Schlieper admittedly knew that
Pryor and Sawyer were among the four strongest supporters
of the Union. According to Schlieper, the decision not to
return them to work was made by August 28. It follows,
therefore, that the alleged misconduct must have occurred
on or before August 28. It is, of course, recognized that an
employer has the burden of proving that strikers engaged in
conduct barring them from a return to employment. An
employer's honest belief that stnkers did engage in picket
line misconduct of a serious nature is not a defense if it
affirmatively appears that such misconduct did not, in fact,
occur. See N.L.R.B. v. Burnup & Sims, Inc., 379 U.S. 21 and
J. H. Rutter-Rex Manufacturing Company, Inc., 158 NLRB
1414, 1418. The question, then, is whether the picket line
conduct of Pryor and. Sawyer, which has been related
above, was of a nature requiring that they be disqualified
for reemployment under the precedents. As has been held,
the applicable test in determining whether strikers accused
of misconduct should be returned to work "is whether the
misconduct `is so violent or of such serious character as to
render the employees unfit for further service,' or whether it
merely constitutes `a trival rough incident' occurring in `a
moment of animal exuberance.' This distinction has been
drawn on the theory that some types of `impulsive
behavior,' being `normal outgrowths of the intense feelings
developed on picket lines,' `must have been within the
contemplation of Congress when it provided' for the right
to strike." 4 I am convinced, and find, that neither Pryor nor
Sawyer engaged in disqualifying misconduct. It is true that
they stopped one or two vehicles momentarily as the vehicle
approached the picket line. However they moved aside and
allowed the vehicle to enter the Respondent's premises.
Sawyer had a stick which he used to hit gravel in order to
pass the time of day. There is no evidence whatever that the
stick he carried was used by him in a threatening manner
against nonstrikers or others. Pryor did converse with other
4 Terry Coach Industries, Inc., and Industrial Carpenters Union, Local
530, United Brotherhood of Carpenters & Joiners of Amertcq AFL-CIO, 166
NLRB 560 at 563 Fns omitted.
5 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
stnkers in an attempt to persuade them not to abandon the
strike, but he did not do so in a threatening manner, so far
as the record discloses. Pryor and Sawyer, along with other
strikers, initially parked their cars in the driveway but,
when advised to refrain from doing so by the police, they no
longer did so. On one occasion Pryor and Sawyer followed
an outside truck and asked the driver not to cross their
picket line again, to which the driver agreed. There is
evidence that two calls to a nonstriker's home were traced
to Pryor's telephone, but he testified without contradiction
that he had not made the calls and that it was a frequent
occurrence for strikers to gather in his home. I am
persuaded that the alleged misconduct of Pryor and Sawyer
and the acts in which they engaged as recited above, are not
serious enough to warrant denying them their jobs. See, e.g.,
National Packing Company, Inc., 147 NLRB 446, 447,
456-457; Stewart Hot Ring Company, Inc., 131 NLRB 310,
313; Schott Metal Products Company, 128 NLRB 415, 416;
Frontier Guard Patrol, Inc., d/b/a Frontier Guard and
DeLue, Inc., 161 NLRB 151; Rangairi Corp., 151 NLRB
682,688 ; Buitoni Food Corp., 126 NLRB 767, 783, enfd. 298
F.2d 169 (C.A. 3, 1962). Accordingly, I shall recommend
that they be offered immediate reinstatement to their
former positions. The Respondent unlawfully terminated
the employment of Pryor and Sawyer on December 14,
1970, thereby violating Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent, Huss & Schlieper, is an employer
within the meaning of Section 2(6) and (7) of the Act.
2. Sheet Metal Workers International Association,
Local 133, is a labor organization within the meaning of
Section 2(5) of the Act.
3. Kenneth Pryor and Thomas Sawyer were discrimina-
torily refused reinstatement on or about December 14,
1970, and -by such action the Respondent violated Section
8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices burdening and affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
In order to effectuate the policies of the Act, I find that it
is necessary that the Respondent be ordered to cease and
desist from the unfair labor practices found and to take
certain affirmative action, including offering reinstatement
to Kenneth Pryor and Thomas Sawyer, with backpay
computed on a quarterly basis plus interest at 6 percent per
annum as prescribed in F. W. Woolworth Company, 90
NLRB 289 and Isis Plumbing & Heating Co., 138 NLRB
716; and to post appropriate notices.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in the case, and pursuant to Section
10(c) of the Act, I hereby issue the following: 5
findings , conclusions , and recommended Order herein shall , as provided in
Section 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.
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Respondent, Huss & Schlieper, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging, refusing to reinstate, of otherwise
discriminating against any employee for engaging in
concerted activity or supporting Sheet Metal Workers
International Association, Local 133, or any other union.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer to Kenneth Pryor and Thomas Sawyer
immediate and full reinstatement to their former jobs or, if
their jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other rights
and privileges, and make them whole for their loss of
earnings in the manner set forth in the section of the Trial
Examiner's Decision entitled "The Remedy."
(b) Notify immediately the above-named individuals, if
presently serving in the Armed Forces of the United States,
of their right to full reinstatement, upon application after
6 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 be changed to read "POSTED PURSUANT TO A JUDGMENT OF
THE UNITED STATES COURT OF APPEALS ENFORCING AN
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
(c) 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 the amount of backpay due under the
terms of this Order.
(d) Post at its Decatur, Illinois, plant copies of the
attached notice marked "Appendix." 6 Copies of the notice,
on forms provided by the Officer-in-Charge of Subregion
38, after being duly signed by an authorized representative
of the Respondent, shall be posted by the Respondent
immediately upon receipt thereof, and be maintained 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 the notices are not altered, defaced, or
covered by any other material.
(e) Notify the Officer-in-Charge, in writing, within 20
days from the date of this Order, what steps the
Respondent has taken to comply herewith.?
ORDER OF THE NATIONAL LABOR RELATIONS BOARD "
7 In the event that this Recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read
"Notify said Officer-in-Charge, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith."