Kellstone, Inc.

National Labor Relations Board - Board Decisions

Sep 24, 1973

206 N.L.R.B. 156 (N.L.R.B. 1973)

156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kellstone, Inc. and Kelley's Island Employees Associa-
tion and United Steelworkers of America, AFL-
CIO. Cases 8-CA-7300 and 8-CA-7361
September 24, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On March 30, 1973, Administrative Law Judge Jen-
nie M. Sarrica issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and the Respondent
filed an answering brief, cross-exceptions, and a brief
in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The Administrative Law Judge found, inter alia,
that certain statements made by John Gillespie, the
Respondent's plant manager, to representatives of
employees while discussing the grievance of their fel-
low employee, Nelson Kerr, did not constitute a repu-
diation of an existing collective-bargaining
agreement, and therefore that the Respondent did not
violate Section 8(a)(5) of the Act. We disagree.
At the time of the controversy leading up to this
proceeding, the Respondent and Kelley's Island Em-
ployees Association were parties to a collective-bar-
gaining agreement effective from March 1, 1972, until
March 1, 1973. This agreement contained, among
other things, a seniority provision, a no-strike provi-
sion, and a three-step grievance procedure, bringing
into a controversy at each of the steps the
Respondent's immediate foreman involved, the plant
manager, and the operations manager, respectively.
During the evening of October 16, 1972, Commit-
teemen Francis Betzenheimer and Harry Willis met
with Plant Manager Gillespie to discuss the impend-
ing disciplinary action against employee Kerr, who
had failed to report for work on the Respondent's
midnight shift the night before. The plant manages
advised the committeemen that Kerr's detail to the
midnight shift would be extended until October 23.
The committeemen protested, asserting that the con-
tract seniority provision entitled Kerr to an immedi-
ate assignment on his preferred shift. Gillespie
remained adamant with respect to his position. When
the committeemen continued to argue Kerr's contract
seniority rights, Gillespie told them, "You don't have
seniority, your contract is no good," adding that the
Association itself was illegal because it was not affili-
ated with any international union.
The committeemen then asked Gillespie to set up a
meeting with Dolbert Best , the Respondent's vice
president and still acting operations manager,-consis-
tent with the third step of the contract grievance pro-
cedure. Gillespie replied that he did not know when
or if Best could come to the island plantsite because
Gillespie was very busy. Moreover, while acknow-
ledging that Best might not arrive until October 23,
Gillespie insisted that Kerr work the midnight shift
until that date.
Following this meeting, the committeemen left
Gillespie's office and called a meeting of association
members on the same evening. Those in attendance
were advised of the confrontation with Gillespie, and
particular emphasis was placed on Gillespie's state-
ment that their contract was no good and that the
Association was "illegal." A consensus was taken and
the committeemen were instructed to return the next
morning and ascertain whether or not Gillespie had
changed his attitude toward the employees' organiza-
tion and the viability of their contract. According to
the credited testimony, those in attendance at this
meeting, consisting of a majority of the unit employ-
ees, also agreed that if Gillespie maintained the posi-
tion that they did not have a legal contract, and if it
appeared that he would not honor it, they would
strike.
On the following morning, employees congregated
in the Respondent's shop as planned, while Betzen-
heimer and Willis talked with Gillespie. They asked
Gillespie if anything had changed. Gillespie replied,
"No." Willis responded, "We have a stand off."
Thereupon, the two committeemen, Gillespie, and
two foremen proceeded to the shop where Gillespie
informed the assembled employees of his position
with respect to the Kerr grievance; namely, that Kerr
had to work the midnight shift until October 23. Gil-
lespie also told employees that he would arrange 'a
meeting with Best if he could, but he warned that if
employees walked out they would be in violation of
the no-strike provision of their contract and would
probably be without a job. Betzenheimer insisted that
Gillespie was acting in contravention of the contract.
Willis protested that Gillespie was "bending the hell
out of the contract." Gillespie replied, "You fellows,
as far as I am concerned, don't have a contract .. .
your contract is no good, you are illegal . . . not
affiliated with any international." The management
representatives then withdrew, having told employees
that if they did not want to work to turn in their
206 NLRB No. 27
KELLSTONE, INC. 157
equipment and go home. In addition to the foregoing
facts, the Administrative Law Judge found that the
ensuing strike was precipitated by the statements
made by Gillespie regarding their contract and their
organization.
Gillespie informed Best of the incidents, and the
latter flew to the island plantsite on October 23. Not-
withstanding, Best made no effort to contact commit-
teemen or striking employees, although he was aware
at the time of the claim that Gillespie had repudiated
the contract. On October 25, Best and Gillespie vis-
ited the homes of each of the striking employees and
tendered final paychecks and a discharge notice. The
latter informed employees that they were discharged
because they violated their labor agreement by their
illegal work stoppage. After this formality, each em-
ployee was also informed that the Respondent was
"accepting applications."
Meanwhile, on October 19, Willis made contact
with a staff representative of the United Steelworkers
of America, AFL-CIO, inquiring about the possibility
of affiliation. Having been guided on the procedure,
the committeemen thereafter circulated formal no-
tices to all but three of the Respondent's rank-and-file
employees advising them of a meeting to be held to
consider the question of affiliation. All 12 employees
who attended this meeting unanimously approved a
proposal for affiliation and thereafter a "merger
agreement" was executed. Those in attendance also
signed cards authorizing the Steelworkers to represent
them for purposes of collective bargaining.'
Subsequently, employees received a charter desig-
nating the former association as a separate local, No.
8070, of the Steelworkers. As such, employees met
and elected a slate of officers. The Respondent was
notified of the action taken by the employees. On
November 22 and thereafter, the Steelworkers made
an unconditional offer on behalf of the striking em-
ployees to return to work, and, on December 20, the
Respondent was requested to bargain with the Kelley
Island local over a new agreement to supersede the
current one, due to expire on March 1, 1973. The
Respondent admittedly has failed to extend recogni-
tion to the local.
As previously stated, the Administrative Law Judge
1 On October 17, the day the strike began , the Respondent maintained
operations at its quarry site using eight individuals: the plant manager, two
foremen, three rank-and-file employees who apparently did not strike, and
two employees hired on that date.
The complaint alleges, and the Respondent 's answer admits , that the fol-
lowing constitutes an appropriate unit of the Respondent's employees:
All production and maintenance employees , including all blasters, boat
boom operators, clerks, dozer operators , drillers, equipment operators,
equipment relief operators , maintenance mechanics , front endloaders,
laborers, mechanics, plant operators A and B , truck drivers, and welders
maintenance, but excluding all office clerical employees , and profession-
al employees , guards and supervisors (including foremen) as defined in
the Act, and all other employees.
found on the foregoing facts that the Respondent had
not repudiated its collective-bargaining agreement
with the employees' association by the above-de-
scribed conduct of Gillespie. In this respect the Ad-
ministrative Law Judge found no extrinsic evidence of
independent conduct in derogation of the aforesaid
agreement. Accordingly, she found that the employ-
ees' strike in response to Gillespie's statements con-
cerning the agreement was unprotected and that the
strikers' subsequent discharge was not unlawful. We
hold otherwise.
At the outset, it is clear that Gillespie held a unique
position in the eyes of employees at the quarry,here
involved. The quarry itself is located on a small island
in Lake Erie, isolated from the outside except by
means of water or air transport. Gillespie is the senior
management representative on the island. His imme-
diate superior, Vice President Best, admittedly visits
the island only occasionally and, as is well demon-
strated by the record herein, is not readily available
even in moments of serious crisis. Moreover, Gillespie
participated in contract negotiations and is himself a
signatory to the agreement here involved.
In view of Gillespie's position of high responsibili-
ty, indeed of substantial autonomy, we have no basis
for believing that employees would treat Gillespie's
' emonstrances lightly, or value his pronouncements
as mere "bluster." Here, while engaged in a discussion
concerning an employee grievance, in which seniority
was deemed to be a relevant factor, Gillespie flatly
stated that employees did not have seniority because
their Association's contract was "no good." This was
a serious challenge to the rights of the employees,
whose very terms and conditions of employment and
working lives were dependent on that negotiated
agreement. Lest Gillespie's statement be considered
merely as an ill-advised reaction to emotions generat-
ed by the grievance issue , Gillespie repeated his view
of the contract on the next day, during his confronta-
tion with employees. Moreover, his equivocal, and
seemingly indifferent, reaction to the employees' re-
quest for third-step grievance negotiations reinforces
the seriousness of his position with respect to the con-
tract. In these circumstances, we accept at face value
the statements made by Gillespie, and find that, there-
by, the Respondent sought to repudiate its entire
agreement with the Association, in violation of Sec-
tion 8(a)(5) of the Act.
As the Administrative Law Judge observed, "as a
general rule of law, one party to a contract need not
perform if the other party refuses in a material respect
to do so." The same rule applies to labor contracts.2
Since the Employer, as we find, repudiated the con-
2 United Electrical, Radio and Machine Workers ofAmerica, Local 1113 v.
N.L.R.B. [Marathon Electric Manufacturing Corp ], 223 F.2d 338, 341 (C.A.
D.C.), cert. denied 350 U.S. 981 (1956).
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tract and indeed its entire bargaining obligation, the
employees were not in breach of any no-strike provi-
sion in engaging in their collective work stoppage.'
It follows, rather, and we hold, that the employees
were protected in their strike which flowed from the
Respondent's unfair labor practices. They were, in
fact, unfair labor practice strikers, and Respondent
ran afoul of Section 8(a)(3) of the Act by subsequently
discharging them and by not reinstating them upon
their unconditional request.
THE REMEDY
Having found that a majority of Respondent's em-
ployees designated Local 8070 of the Steelworkers of
America, AFL-CIO, as their collective-bargaining
representative, we are further of the view that
Respondent's unfair labor practices were so egregious
as to preclude, indeed render, inequitable an election
to ascertain the employees' wishes. Respondent's im-
mediate responses to the employees' assertion of con-
tractual and collective rights was a wholesale
repudiation of those rights. Thereafter, when the em-
ployees engaged in further collective action-a work
stoppage to protest the Respondent's abrupt repudia-
tion-the Respondent retaliated further by discharg-
ing the striking employees, allegedly for violating a
contract which the Respondent had just declared no
longer existed. A more arbitrary exercise of power for
purposes unlawful under the Act can hardly be imag-
ined. As a remedy for the Respondent's unfair labor
practices, we shall order that the Respondent bargain
with the employees' then duly designated representa-
tive, Steelworkers.4
Having also found that the Respondent discrimi-
nated in regard to the hire and tenure of employment
of unfair labor practice strikers by failing and refusing
to reinstate them upon their unconditional applica-
tion therefor, we shall order that the Respondent offer
each of them immediate and full reinstatement to his
former position 5 or, if that job no longer exists, to a
' In view of our finding that Respondent repudiated its bargaining obliga-
tion in its entirety, thus violating Sec. 8(a)(5), and our finding, infra, that the
employees struck for that reason, the same result would ensue as under
Mastro Plastics Corp. and French American Reeds Mfg. Co., Inc. v. N.L R.B.,
350 U.S . 270 (1956).
4 N.L.R B ' v. Gissel Packing Co., Inc., 395 U.S. 575; United Steelworkers of
America, AFL-CIO v. N.L R.B. [Northwest Engineering Company], 376 F.2d
770 (C.A.D.C., 1967), enforcing 158 NLRB 624, cert. denied 389 U.S. 932
(1967).
In view of our decision herein, we find it unnecessary to pass upon the
Administrative Law Judge 's holding that affiliation of an independent em-
ployees' organization with an international union is a matter merely of inter-
nal concern , and that Steelworkers was the "lawful" successor to the
association.
5 The Administrative Law Judge raised some questions as to whether the
substantially equivalent position, without prejudice to
his seniority or other rights and privileges, and make
each whole for any loss of pay he may have suffered
by reason of said discrimination against him,6 by pay-
ment to him of a sum of money equal to that he would
have earned from the date of the discrimination
against him to the date of his reinstatement, less his
net earnings during such period in accordance with
the formula set forth in F. W. Woolworth Company, 90
NLRB 289, with interest thereon at 6 percent per
annum.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Kell-
stone Inc., Kelley's Island, Ohio, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Unlawfully refusing to recognize and bargain
in good faith with the duly designated exclusive repre-
sentative of the Respondent's employees in the appro-
priate unit.
(b) Discharging or refusing to reinstate to their for-
mer or substantially equivalent jobs, or otherwise dis-
criminating in regard to the hire and tenure of
employment or of any term or condition of employ-
ment, its striking employees because of their member-
ship in and activities on behalf of any labor
organization of their choice.
(c) In any other manner interfering with, re-
straining, or coercing its employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, bargain collectively in good faith
with Local 8070, United Steelworkers of America,
AFL-CIO, as the exclusive representative of the
Respondent's employees in the appropriate unit with
respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment, and,
if an understanding is reached, embody same in a
signed written agreement.
(b) Offer to each of the unfair labor practice strik-
ers immediate and full reinstatement to his former job
or, if that job no longer exists, to a substantially equiv-
alent position, without prejudice to his seniority or
other rights and privileges, and make each whole for
plant had not closed down for an indefinite period as of the date of the
hearing. Such evidence as there is in the record indicates that the shutdown
may have been merely a temporary, normal, seasonal occurrence . We shall
give our usual remedy, and any questions that may be presented by virtue
of the shutdown may be resolved at the compliance stage.
6 Since the employees were engaged in a strike at the time they were
discharged, their backpay commences at the time they unconditionally re-
quested reinstatement . See, e.g., Astro Electronics, Inc., 188 NLRB 572, 573.
KELLSTONE, INC.
any loss of pay he may have suffered by reason of the
discrimination against him in the manner set forth in
the section of this Decision entitled "The Remedy,"
with interest thereon at 6 percent per annum.
(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 Kelley's Island, Ohio, quarry copies
of the attached notice marked "Appendix." 7 Copies
of said notice, on forms provided by the Regional
Director for Region 8, after being duly signed by the
Respondent's representative, shall be posted by the
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive 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.
(e) Notify the Regional Director for Region 8, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
7 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT unlawfully refuse to bargain col-
lectively concerning rates of pay, wages, hours,
and other terms and conditions of employment
with the exclusive representative of the employ-
ees in the bargaining unit described below.
WE WILL NOT discharge, or refuse to reinstate,
employees engaged in an unfair labor practice
strike.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them by Section
7 of the Act.
WE WILL offer to each of the unfair labor prac-
tice strikers immediate and full reinstatement to
159
his former or substantially equivalent position,
without prejudice to his seniority or other rights
and privileges, and make each whole for any loss
of pay he may have suffered by reasor of our
discrimination against him.
WE WILL, upon request, bargain with Local
8070, United Steelworkers of America, AFL-
CIO, as the exclusive representative of all em-
ployees in the bargaining unit described below,
with respect to rates of pay, wages, hours, and
other terms and conditions of employment, and,
if an understanding is reached, embody such un-
derstanding in a signed written agreement. The
bargaining unit is:
All production and maintenance employees,
including all blasters, boat boom operators,
clerks, dozer operators, drillers, equipment op-
erators, equipment relief operators, mainte-
nance mechanics, front endloaders, laborers,
mechanics, plant operators A and B, truck
drivers, and welders maintenance, but exclud-
ing all office clerical employees, and profes-
siQnal employees, guards and supervisors
(including foremen) as defined in the Act, and
all other employees.
KELLSTONE, INC.
(Employer)
Dated By
(Representative) (Title)
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 compli-
ance with its provisions may be directed to the
Board's Office, Suite 1695, Anthony J. Celebrezze
Federal Building, 1240 East Ninth Street, Cleveland,
Ohio 44199, Telephone 216-522-3715.
DECISION
STATEMENT OF THE CASE
JENNIE M. SARxicA, Administrative Law Judge: Upon due
notice, this consolidated proceeding under Section 10(b) of
the National Labor Relations Act, as amended (29 U.S.C.
151, et seq.), hereinafter referred to as the Act, was tried
before me at Sandusky, Ohio, on January 30 and 31, 1973,1
pursuant to charges filed on October 19, by Kelley's Island
',Unless otherwise indicated, all dates are in 1972.
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employees Association , hereinafter referred to as the Asso-
ciation, and on November 27 and 29, by United Steelwork-
ers of America, AFL-CIO, hereinafter referred to as the
Steelworkers ; complaints issued November 21 and January
15, 1973, as amended at the hearing , that Kellstone, Inc.,
hereinafter called the Respondent , committed unfair labor
practices within the meaning of Sections 8(a)(1), (3), and (5),
and 2(6) and (7) of the Act; and Respondent 's answer deny-
ing those allegations . Present and participating in the hear-
ing were representatives of the Respondent , the General
Counsel , and the Steelworkers.
Based on the entire record,2 including my observation of
witnesses , and after due consideration of briefs , I make the
following:
FINDINGS AND CONCLUSIONS
1. JURISDICTION
Respondent is an Ohio corporation engaged at Kelley's
Island, Ohio, in the business of operating a limestone quar-
ry. In the course and conduct of its business, Respondent
annually ships goods and materials valued in excess of
$50,000, directly to points located outside the State of Ohio.
Respondent admits, and I conclude that it is now, and was
at all times material herein, an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
If. THE LABOR ORGANIZATION
I find that Kelley's Island Employees Association was at
all times material herein until November 3, 1972, when it
became affiliated with United Steelworkers of America,
AFL-CIO, and that United Steelworkers of America, AFL-
CIO and its Local 8070 is now , and has been at all times
material herein , a labor organization within the meaning of
Section 2(5) of the Act.
(1) of the Act; that the strike by employees because of these
statements was an unfair labor practice strike; that
Respondent's discharge of the strikers was a violation of
Section 8 (a)(3) and (1) of the Act; that the affiliation of the
Association with the Steelworkers and the issuance by the
latter of a local charter to the Association group effectively
constituted the Steelworkers the valid successor representa-
tive of the employees; and that Respondent's refusal to deal
with it was in violation of Section 8(a)(5) and (1) of the Act.
Respondent denies that it acted unlawfully , asserting, in-
ter alia, that it has continued to recognize the Association
as the bargaining representative of its employees and has
continued to apply all contract terms; that there has been
no actual repudiation of the contract, and the Association
was bound to exhaust the grievance procedure through the
third step; that the strike at the second step of the grievance
was in furtherance of the Association's position in the griev-
ance under consideration and was unprotected, being in
violation of the contract no-strike clause ; that the striking
employees were lawfully discharged for their participation
therein; and that the affiliation action taken by the Associa-
tion members who were no longer employees, without ap-
propriate notice to those strike replacements actively
employed, was not an effective change in the identity of the
contracting collective-bargaining agent, and, therefore,
there was no unlawful refusal to bargain with the Union.
Thus, the threshold factual question is whether Respon-
dent engaged in the conduct advanced as a repudiation of
the labor contract with the Association. Legal issues include
the question of whether such conduct violated Section
8(a)(5) of the Act, and if so, whether that violation was so
significant as to protect by Section 7 of the Act those em-
ployees who engaged in strike activity in violation of their
contractual commitment not to strike.
B. The Contract
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Contentions of the Parties and Issues
The General Counsel in effect contends that, by certain
statements, the Respondent repudiated the collective-bar-
gaining agreement and thereby violated Section 8(a)(5) and
2 Motions to correct the record were filed by both the Respondent and the
General Counsel, and the Respondent filed an opposition to one of the
corrections requested by the General Counsel. With respect to the
Respondent's motion , reference is to the accuracy of the transcript quotation
of Association minutes read from a bound minute book into the record by
the witness . I have no way to check the accuracy of the reporting or, indeed,
the accuracy of the reading by the witness. If this were a crucial issue the
correct wording as contained in the minutes could be verified by stipulation
or by subpena if necessary. However , the variance between the record lan-
guage and the proposed amendment is not significant in the resolution of any
issue in this case . Therefore, although the General Counsel has not filed an
opposition thereto , I shall not grant the Motion to amend the record in this
respect . Respondent has opposed the first change requested in the General
Counsel's motion to amend the official transcript . Again, as either of the two
words proposed would have the same the impact on the issue involved, the
transcript will remain as reported. The other two changes in the transcript
requested by the General Counsel are consented to by Respondent. The
motion in these respects is granted and the record is changed accordingly.
The Association was organized by employees of Respon-
dent some 3 years ago to engage in collective bargaining
with Respondent. Their first agreement was for a duration
of 2 years, after which they entered negotiations for the
most recent contract. Two committeemen represented the
Association and Vice President Dolbert Best and Plant
Manager John F. Gillespie acted on behalf of Respondent.
The resulting agreement was for the term March 1, 1972, to
March 1, 1973. Provisions of this contract of particular
relevance to the controversy herein are:
15. Job posting: When a vacancy occurs, the opening
will be posted on the notice board for 3 days. All em-
ployees interested in improving their position have the
right to bid on this opening. Bid slips will be provided.
The job opening will be filled on the basis of the
senior qualified applicant being awarded the opening.
This judgment will be determined by the Plant Manag-
er.
•
17. There shall be no strike or slowdown of work or
work stoppage during the duration of this agreement.
KELLSTONE, INC. 161
21. Grievance Procedure-Should an employee have a
complaint or grievance, he shall process it in the follow-
ing manner:
1. Discuss the matter with his immediate foreman-
If the disagreement cannot be settled at this point,
step #2 will be followed.
2. Request an interview with the plant manager, the
immediate foreman and a committee representative.
The time of this meeting will be set by the plant
manager. If the disagreement still cannot be settled
follow step #3.
3. A meeting will be set up with the following per-
sons attending who will arrive at a settlement:
1. Grievant
2. Two committee members
3. Plant Manager
4. Grievant's foreman
5. Operation's Manager3
23. Management's Rights Clause-The company re-
serves the total rights to manage its business, manufac-
ture products, location of plant, schedule of production
and hours, methods, processes, means and manufactur-
ing which are solely and exclusively the responsibility
of the company.
C. The Relevant Events
Although there is substantial summer r:.;ort activity, the
limestone quarry involved herein is the only industrial oper-
ation presently situated on Kelley's Island located in Lake
Erie near Sandusky, Ohio. Transportation to the mainland
is by water or air, and during winters only by air. Thus,
weather is an ever present factor in the availability and
timeliness of transportation for those leaving or returning to
the Island . There are, however, a small group of year-
around residents, many of whom were either employed at
the quarry or performed independent contract service for it.
Respondent operated the quarry three 8-hour shifts: mid-
night, 8 a.m. and 4 p.m. The midnight shift requires only one
man who operates the crusher at the secondary plant. This
involves the use of a large unstable piece of equipment to
move the crushed and graded stone onto loading conveyor
belts.
In summary, on the basis of the credited testimony, I find
that the following events took place. Employee Nelson Kerr
enlisted the aid of an Association committeeman, Betzen-
heimer, to handle a grievance involving his discharge.4 A
3 Best testified that since he was promoted 3 years ago this position has
remained vacant so that he would be the person who would act as the
operations manager in step 3.
4 Kerr, who had operated the midnight shift for over a year and a half,
requested, a transfer and, in recognition of his accumulated seniority, was
moved to the 4 p.m. shift. However, his successor was unable to, maintain
satisfactory production volume and this affected the employee incentive
bonus based on tonnage of shipments . After a few weeks Kerr, with his
consent, was returned to the midnight shift so that another employee with
meeting was arranged with Plant Manager Gillespie for that
evening, October 16, it 6 p.m. However, when Committee-
men Betzenheimer and Willis began to discuss Kerr's shift
situation and Gillespie brought up Kerr's having initially
volunteered for the midnight assignment, a matter concern-
ing which the committeemen had no knowledge, the meet-
ing was adjourned for an hour so that Kerr could be present.
After discussion of several other work-related problems
at the 7 p.m. meeting with Gillespie attended by Kerr, com-
mitteemen brought up Gillespie's failure to return Kerr to
the 4 p.m. shift in light of the private understanding and the
entry in the minutes of the Saturday, October 14, grievance
meeting.5 Gillespie indicated that if Kerr would work the
midnight shift that night and for the rest of that week, he
would be returned to his 4 p.m. shift on October 23, thus
rescinding his earlier discharge action. Committeeman Wil-
lis protested that, under the contract, Nelson Kerr was enti-
tled to the 4 p.m. shift work because of his seniority .6
Gillespie's reaction was to tell the group they had " no such
thing" as seniority in their contract. Pressed by Willis'
positive assertion of a contract provision, Gillespie indi-
cated he would check the contract for reference to this
factor, but that Kerr would remain on the midnight shift
until October 23. When the committeemen continued to
urge the contract seniority right, Gillespie told them "You
don't have seniority, your contract is no good," 7 adding
that the Association itself was illegal because it was not
less seniority could be trained to take it. At the end of the anticipated tune
Kerr sought from Gillespie permission to be absent on Saturday, October 6.
Gillespie, who believed the new employee needed more training on the
operation of the secondary plant , granted Kerr's request in exchange for his
promise to work yet another week on the midnight shift. This understanding
would have ended Kerr's time on that shift Friday, October 13, at 8 a.m.
Believing he had completed his commitment and was automatically returned
to the 4 p in. shift, Kerr did not report to operate the secondary plant at
midnight, Sunday, October 15. When Gillespie arrived at the quarry Monday
morning, October 16, he observed that the secondary plant had not operated
and assumed that Kerr, as he had done on several other occasions , had been
to the mainland on the weekend and not been back for his assigned shift.
Gillespie , therefore, sent a message to Kerr's residence to come to the office
immediately and upon Kerr's arrival, despite his explanation, fired him for
failing to report.
5 On Saturday , October 14, Committeemen Betzenheimer and Beatty met
with Gillespie to discuss several pending matters. Betzenheimer 's notes, made
during the meeting and posted thereafter for the information of employees,
states "Next wk. Nelson goes on 4-12 shift."
6 Admittedly shift assignment is based in part on seniority and Gillespie
told employees he believed in the principle of seniority.
7 I do not credit Gillespie's denial that he said anything about the contract
or seniority at this meeting and that whatever he said on these subjects was
at the October 14 meeting. In addition to the fact that no grievance as such
existed at that time with respect to Kerr's assignment which would give rise
to such a discussion , my observation of certain aspects of Gillespie 's demea-
nor, as well as his reaction to Willis' citing of documentary authority when
challenging his ruling on the subject of plant inspection, are wholly consistent
with his approach of brushing aside the contract and the Association if they
challenge his rule. Thus , when in support of the Association 's claim to the
right to have an employee accompany the Government safety inspector,
committeemen relied on the authority of an official poster on the plant
bulletin board , Gillespie first disputed that the bulletin provided for us, then,
when Willis departed and brought back the posted notice, Gillespie switched
to the position that Respondent's operation was not subject to the jurisdiction
of the Government agency involved (inferentially Occupational Health and
Safety of the Labor Department) rather was under the Bureau of Mines and,
in any event, the subject agency "was on its way,out," but nevertheless he
would be willing for an employee to accompany the'safety inspector if the
employee did it on his own time.
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affiliated with any international union.8 When the Commit-
tee asked Gillespie to set up a meeting with Best,9 Gillespie
replied he did not know when or if Best could come to the
Island because he was very busy.10 He did not, however,
refuse to go to the third step of the grievance procedure.
Betzenheimer commented this could mean that Best would
not be there until after the 23rd and Gillespie indicated that
this was possible.I t Upon Gillespie's reiteration of his posi-
tion with respect to Kerr, the group left his office and pro-
ceeded from there to obtain the VFW Hall and to call other
employees for an Association meeting.12
Association members met at the VFW Hall-the only
public meeting place available on the Island other than local
bars-and, with Willis acting as reporter, those who attend-
ed the 7 p.m. meeting with Gillespie related the substance
of what occurred, giving particular emphasis to Gillespie's
statements that the contract was no good, the Association
was illegal , and he would not honor their contract. The
members discussed what they should do about this develop-
ment . The testimony indicates employees decided to send
the Committee back the next morning to ascertain whether
Gillespie had changed his attitude toward their organization
and the viability of their contract, concluding that if he still
insisted they did not have a legal contract and if he would
not honor it, they would strike . The minutes would indicate
they intended to summons Best and wait for him to come
and settle their dispute. The minutes do not separate con-
tract viability issue from the Kerr grievance out of which it
arose.
The following morning , October 17, employees congre-
gated in the shop as planned while Willis and Betzenheimer
went to Gillespie's office . Willis asked Gillespie if anything
had changed and Gillespie replied "No." Willis stated "We
have a stand-off." 13 Gillespie asked where the men were
6 Betzenheimer testified that when they accused Gillespie of not living up
to the contract , he said , "Your contract is illegal and you are not affiliated
. and I will not honor your contract." I do not view this testimony as
inconsistent with that of Willis and Kerr. The latter recalled Gillespie saying
the contract did not mean anything and "I will not honor your contract."
9 The only time Best had come to the Island to settle a grievance occurred
during the preceding contract when employees walked out in a dispute over
Sunday work which had resulted in the suspension of the entire Sunday crew
involved . In that contract there was no contractual restriction on striking.
10 Best's office is located in a suburb of Detroit , Michigan. He visits the
Island irregularly but on an average of once a month. The last previous
occasion for his appearance at the quarry was in mid -September . He was,
however, known by Island residents as he frequently spoke to individual
emlployees on his visits.
I note that Gillespie testified he told Betzenheimer at this point that it
happens "a lot of times" in grievance procedures that the particular grievance
is not necessarily corrected but if something is wrong the grievance prevents
it happening again. Later Gillespie testified that he made no reply to this
comment of Betzenheimer because there was no reason to , then returned to
his "lots of times" comment. Whether or not he gave the lengthy explanation
he presented in his testimony, I find Gillespie did at least concede it was
possible that the third step in the grievance procedure could not be utilized
before his ruling at the second step with respect to Kerr had been complied
with in view of the time factor.
12 I also do not credit Gillespie 's testimony that as they left the meeting
Betzenheimer threatened him that there would be no crew in the morning.
However, I find he did hear Betzenheimer 's statement to the others as they
left which revealed they were going to call employees to a meeting at the
VFW Hall.
13 In agreement with Willis , Gillespie testified this statement was made in
his office . He also testified that he asked Willis what a "stand-off' was and
Willis replied , "we want a meeting with Mr. Best." He replied, "Fine, I'll set
and Willis stated that they were in the shop. Gillespie said
he wanted to speak to the men and the three proceeded to
the shop. On the way Gillespie requested both foremen to
accompany them.
A composite of the credible testimony indicates that once
in the shop Gillespie stated to the assembled employees his
position with respect to the Kerr grievance,14 and told the
men he would schedule the shifts and starting time-this
was management 's right. Someone asked when Best was
coming down and Gillespie replied that he did not know
because he had not contacted Best .15 One of the committee-
men asked if he would arrange a meeting with Best and
Gillespie stated "I will, but again, I don't know if he can
come down, or when." Gillespie warned employees if they
walked out they would be in violation of the contract be-
cause of the no-strike, no-work stoppage clause and that
they very possibly would be without a job.16 Gillespie told
the men their jobs were there is they wanted to go to work-
if not, they should turn in their equipment and go home.
Willis said, "you can't fire us like that" and Gillespie replied
he was not firing them, they were quitting. Betzenheimer
told Gillespie that what he was doing was against the con-
tract and Willis asserted Gillespie was "bending the Hell out
of the contract." Gillespie replied, "you fellows , as far as I
am concerned, don't have a contract . . . your contract is
no good, you are illegal . . . not affiliated with any interna-
tional," and had no right to collect dues.'? Gillespie and the
foremen departed. Employees remained for a short time
deciding what steps they would take. They chose to walk out
because of the statements made by Gillespie regarding their
contract and their organization.18
up a meeting with Mr. Best , meanwhile are we working or not working?" and
that Willis stated , "We are not working."
14 Gillespie testified that he explained to employees that Kerr had to work
the midnight shift until the 23rd, and that Kerr was suspended for 2 days for
failure to show up for his assigned shift 2 days in a row.
Ir Gillespie testified that following the meeting the evening before he made
no attempt to contact Best and was not too concerned, nor had he tried to
reach Best that morning because when he arrived he saw the plant operating.
Other reasons given for not attempting to reach Best the night before were,
he knew there would be no answer at that time of night (presumably meaning
at Best's office) and "I didn 't even know if he had the time or when he could
come down, it might be a week or even two or the next day."
. 16 Gillespie , in agreement with Betzenheimer, testified he made this refer-
ence to the contract provision. Gillespie also testified that his only mention
of the contract at the shop meeting was his assertion of management rights
in connection with his explanation of the Kerr grievance. I find on his own
testimony that he mentioned the contract several times , and credit the testi-
mony that additionally he mentioned the contract in the manner related by
the employees.
17 The employees' testimony as to what Gillespie said about their contract
and organization finds support in his consistent attitude toward the contract
revealed by the testimony of the chief of police of the Island who was
solicited by Gillespie immediately thereafter to come to work for Respondent
because "the men were out on a wildcat strike ." I credit the police chiefs
testimony that he asked Gillespie "What about their contract" and that
Gillespie replied "Well, that contract don't mean anything ." I do not credit
Gillespie's denial of this conversation or his fixing of the time of the employ-
ment offer as possibly in late October. That Gillespie challenged the Associa-
tion as an "illegal outfit" because it was unaffiliated finds support in the
concern about this shown by the employees and the promptness with which
the sought to affiliate their Association with an international union.
This reason, established by the testimony of employees present, is not
inconsistent with actions of individuals following the walkout . Thus, that
evening, Jim Kekelik and Cyrus, a truckdriver who was not an Association
member but who was present during the meeting in the shop , walked into the
former's home . "Jake" Martin, a guest of Jim's parents and one of the
independent contractors who did accept Respondent's request to help run the
KELLSTONE, INC. 163,
The committeemen obtained from among Association
records a telephone number for Best, but upon attempting
to place a call found it to be obsolete. Consequently during
the morning of October 18 the committee went to Gillespie's
office to obtain the correct phone number. When they saw
Gillespie they asked, "are we fired?" Gillespie told them
they were not fired but they could not be rehired; that it
would be necessary to obtain permission from Detroit to
rehire them; and that they may be terminated. He gave
Best's telephone number to the committeemen, then pro-
ceeded to advise them they were not to tell people they were
a union; not to tell people they had a closed shop; not to
hold their meetings at the VFW hall; and not to drink at
their meetings.19
Gillespie called Best and reported there had been a walk-
out over the Kerr grievance. There is no indication whether
he conveyed employees' request for a conference with Best
as he had promised. Best came to the Island on October 23,
but made no effort to contact the committeemen or any of
the striking employees. At that time he was aware of the
charge that the plant manager had repudiated the contract.
On October 25, Best and Gillespie went to the home of each
striker and gave final pay and discharge notices bearing that
date stating:
Effective the above date your. employment with Kell-
stone, Inc., is terminated. You have vioated [sic] the
labor agreement by participating in an illegal stoppage
of work. [Signed] J. F. Gillespie, Plant Manager.
When they handed out these documents each employee was
advised that Respondent was accepting applications. Nel-
son Kerr's notice differed from the others in that it stated
he was discharged both for his participation in the strike
and for his violation of the work rules by not showing up
on his assigned shift. When Best and Gillespie called on
Willis, he asked, "Do you mean if I go in and make out an
application you will take me back?" Gillespie replied "I
didn't say that, `we are accepting applications,' is what I
said." Willis asked Best if he knew what "this" was all
about, and despite Best's assurance that he did, Willis pro-
ceeded to tell him Gillespie had said "the contract is no
plant, inquired of the two what had happened to cause the walkout . Employ-
ee Kekelik told him of the Kerr grievance background and of Gillespie's
position at the meeting that "we didn't have a contract and it wasn't any
good," concluding "they got kind of mad about that and ... walked out."
Martin said, "Well, you know darn well you have a contract." Martin did
not deny the foregoing conversation but merely indicated that he did not
recall it. He did recall however that they took out, the contract and went over
some of its terms, and that he, Martin, told them in his opinion they had acted
illegally in walking out because of the no-strike provision . I do not find the
testimony of the bar co-owner as to what two different employees told her
that afternoon as inconsistent with his finding . She, admittedly was interested
in obtaining only limited information for her own purposes and could not
recall what may have been mentioned other than the Kerr grievance. Nor do
I regard any statements made by Kerr in the local market to the wife of one
of the foremen on the 16th as in any way establishing the basis of decisions
made by the group on the night of the 16th and morning of the 17th.
19 Admittedly Gillespie told them at this time that he thought they should
check into the matter of the Association collecting dues and initiation fees;
that they may be doing so illegally. He also testified they asked him what the
difference was between a legal and an illegal strike , and he told them a legal
strike could take place during the negotiations of a contract that had run out
after a grievance procedure had been followed through. Gillespie admitted
that he told them they should not have their meetings in a bar.
good" and "we are illegal." 20
Meanwhile, on October 19, Willis contacted a staff repre-
sentative of the United Steelworkers of America, AFL-
CIO, inquiring about the possibility of the Association affi-
liating with the union. He supplied a copy of the
Association's contract with Respondent and received in the
mail a supply of membership cards on which the committee-
men obtained the signatures of Association members. These
he returned to the Steelworkers. Then the staff representa-
tive of the Steelworkers met with a group of Association
members along with their committeemen, and instructed
them on the procedure necessary for merger and affiliation
of the Association with the Steelworkers, supplying them
with the various documents utilized in such procedures in-
cluding the ballots, notices of affiliation meeting, and a
signed merger agreement. Following this guidance and us-
ing the forms supplied, but acting on their own initiative
and without any Steelworker representative anywhere in the
vicinity, the committeemen distributed the meeting notices
on November 2, and conducted the affiliation meeting on
November 3, at which the merger and affiliation was unani-
mously approved, and the merger agreement executed.21
Thereafter, in due course the group was assigned a charter
as a separate local of the Steelworkers. Upon receipt of their
charter the group met and elected the slate of officers of the
Local. The president and vice president elected were com-
mitteemen of the former Association. There has been no
challenge by former Association members of the action tak-
en and no competing group holds itself forth as a continua-
tion of the former independent Association.
On November 6, the Steelworkers gave Respondent noti-
fication of the merger of the contracting Association into its
organization, asserted its successorship right as the collec-
tive-bargaining agent of the employees, and requested a
prompt discussion with respect to the unfair labor practice
charges and the problems of the dischargees. On November
22, the Union again wrote the Respondent making an un-
conditional offer on behalf of the discharged strikers to
return to work. It added an omitted name to the list of
strikers wishing to return by a letter dated December 6, and
on December 20, wrote the Respondent requesting bargain-
ing for a contract to replace the collective-bargaining agree-
ment expiring on March 1, 1973. In its answer, Respondent
admits that it has not extended recognition to the Steelwork-
ers. There is no real dispute as to the unit of employees
covered by the contract or referred to by the union for
bargaining purposes. Some evidence was presented relative
to whether foremen were included and whether they are
20 Willis further testified that Best attempted to explain that Gillespie
meant they were illegal because they are in the Employees Association and
that Willis asserted they were an employee union. Best testified he gave
employees no verbal explanation for the discharge action because he felt the,
owed him an explanation, and that he felt he would be jeopardizing the
position of Respondent if he went down and discussed the wildcat strike with
the strikers-for, it would prove to the strikers that a wildcat strike would
get somewhere
21 Notices were distributed by personal contact to every Association mem=
her except two. One member had removed himself from the Island and could
not be reached. The notice for the other, who could not be located personally,
was placed on the windshield of his automobile . The meeting was attended
by all members except the aforementioned two. In addition, an employee
who had not completed 30 days of employment with Respondent when the
strike began (the normal time when Association members were accepted)
attended and voted.
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervisors within the meaning of the Act. On the evidence
presented it is clear, and I find, that the mention made of
the working conditions of foremen at the bargaining ses-
sions related only to the employees' desire that foremen not
be permitted to share in the employee incentive pay pro-
gram. Although in preparing the final document for signa-
ture, the Respondent included the pay rate of foremen in the
schedule of classifications and rates of pay attached to the
contract, this had never been a subject of the negotiations.
Moreover, for at least a day of the bargaining one of
Respondent's foremen participated on its behalf, clearly
indicating that at the time Respondent did not regard the
negotiations as covering the employment conditions of fore-
men. Finally, the evidence presented with respect to the
duties and authority of foremen establishes that they are
supervisors within the meaning of the Act, and I so find.
D. Analysis and Conclusions
As I have found that Gillespie did make the statements
attributed to him by committeemen and employees with
respect to the contract and the'status of the Association as
a valid union, during both the Kerr grievance meeting and
the meeting with employees in the shop, the first question
presented is whether this conduct, by the highest official of
Respondent in the geographic area, an official who had
participated in the negotiations and execution of the con-
tract on Respondent's behalf, constituted a repudiation of
the contract or refusal to fulfill Respondent's obligation
under Section 8(d) in violation of Section 8(a)(5) and (1) of
the Act.
As a general rule of law, one party to a contract need not
perform if the other party refuses in a material respect to do
so. This rule applies as a general proposition to labor con-
tracts as well as private or business agreements.22 In my
view, the statements by Gillespie, in the context made, did
not constitute an actual repudiation of the existing collec-
tive-bargaining agreement. Under applicable legal preced-
ent, something more is required to constitute an actual
repudiation of the existing collective-bargaining agreement.
That something more in Latin Quarters Cafe, Inc., 182
NLRB 997, included reneging on a retroactive agreement,
when the term of employment was all but completed, bar-
gaining individually with employees offering higher salaries
than had been offered through the union, and discontinuing
welfare contributions; in Osage Manufacturing Co., 173
NLRB 458, it was withdrawal of recognition,23 termination
of dues checkoffs, lowering of wage rates, extension of
working hours, and discontinuation of contributions to the
union welfare fund; in M & M Oldsmobile, Inc., 156 NLRB
903, enforced 377 F.2d 712 (C.A. 2, 1967), there was a
refusal to put into effect the entire contract; and in Ogle
Protection Service, Inc., 149 NLRB 545, enforced as modi-
fied 375 F.2d 497 (C.A. 6, 1967), cert. denied 389 U.S. 843
22 See UEW Local 1113 v. N L RB., 223 F.2d 338, (C.A.D.C.) cert. demed
350 U.S. 981.
23 I do not find that Gillespie's challenge to the Association as an "illegal
outfit" constituted a withdrawal of recognition in view of his continuous
dealing with the committee and promise to call Best for a third step grievance
meeting.
(1967), in addition to the statement "as far as we are con-
cerned, we have no contract," the Respondent refused to
sign or put into effect a contract negotiated on its behalf and
refused to process grievances.
Gillespie took no action to implement his statements nor
did he take any other affirmative measures to alter any of
the contractual conditions of employment. Thus, Respon-
dent continued to apply the wage rates and to respect the
job classifications set forth in the contract. Further, al-
though there obviously was a difference in interpretation as
to the import of the reference to seniority in the contract
provision, seniority was, in fact, being accorded significant
consideration.' Finally, although Gillespie was "not too
concerned" about calling Best to the Island for a third step
grievance meeting, he did not refuse to do so.
It must be noted that the contract prescribes no particular
time limitations for any step in the grievance procedure.
Certainly it cannot be said that Gillespie was not meeting
promptly and frequently with the Committee for any con-
ference requested by the Association. Nothing in the con-
tract gave the Committee or the employees the right to a
third-step meeting immediately, something obviously im-
possible since the official involved at that step had his office
some distance away, in another city and state. Further,
although the Committee received some unsatisfactory re-
sults at the second step of the grievance procedure, they
were not foreclosed by Gillespie from bringing up the same
issues again and again. Although Best periodically visited
the plant, the Association had not, on any previous occasion
during the term of their current contract, requested that he
participate in a third-step grievance. In summary, the ex-
isting contract was being applied by Respondent and ad-
ministered by the parties in significant and material
respects, and this factor stood in contradiction to Gillespie's
blustering about its lack of validity or viability.
Moreover, statements made by Gillespie in the very meet-
ings at which the verbal denegrations took place revealed
that he was nevertheless applying the contract. Thus, he
acknowledged the applicability of the grievance provision
by promising to arrange a third-step grievance meeting with
Best if they wanted one. Further, he promised to return Kerr
the following Monday to the shift claimed under the seniori-
ty provision even though he denied that their contract re-
quired him to do so. At the same time, he claimed
management rights under the contract and also warned the
employees of their contract obligation not to strike. These
actions constitute the very context in which Gillespie's deri-
sive statements were made and constituted a contradiction
of such statements.
On the record as a whole, I find that the General Counsel
has failed to establish that Respondent clearly repudiated
the contract in such a manner as to constitute a violation of
Section 8(a)(5) and (1) of the Act. As the employees re-
mained bound by their contractual no-strike clause, their
strike did not enjoy statutory protection and, in conse-
quence thereof, strikers became vulnerable to discharge or
24 This is shown in the very grievances giving rise to the events herein, for
Kerr's shift was changed in recognition of his seniority; a man was being
trained to relieve him of his temporary reassignment to the midnight shift;
and the real disagreement involved not his right to return to the 4 p.m. shift,
but the timing of his return.
KELLSTONE, INC.
other discipline.25 -
That Gillespie struck a vulnerable and insecure chord
among Association members when he denegrated their con-
tract and their organization as illegal, which installed fear
and shock, is shown by their extreme reaction in insisting
on confronting Best immediately; in refusing to work until
this could be accomplished; and in promptly seeking out
and becoming affiliated with an established international
union. And perhaps this factor should be given substantial
weight in determining whether, apart from the question of
repudiation, Respondent committed a violation of Section
8(a)(5) by engaging in conduct which so undermined the
collective-bargaining process as to defeat the purposes of
the Act. While the test of unlawful conduct is not its effec-
tiveness, the solidarity of the employees in reacting in com-
plete concert through the Association cannot be ignored.
Even the most unsophisticated and inexperienced employ-
ee,26 and certainly contracting Association representatives,
must have realized that it takes time to settle issues of legali-
ty and many such arguments need never be settled. Mean-
time, Respondent was clearly willing to continue applying
the contract and recognizing the Association, a fact which
could not have escaped the notice of employees. According-
ly, I do not find Respondent's conduct violative of Section
8(a)(5) of the Act.
Even if I were to find that the totality of Gillespie's ac-
tions, in harranging both committeemen and employees as
he did on the subject of their contract being "no good" and
their organization being an "illegal outfit," amounted to
conduct which prejudiced the integrity of the bargaining
relationship and, therefore, had a tendency to undermine
the collective-bargaining representative, and if I were to
find, without regard to other factors, that this violated Sec-
tion 8(a)(5) and (1) of the Act, I believe the strike would still
be unprotected.27
There remains for consideration the question of whether
the Steelworkers is a lawful successor to the Association, its
agreement and its bargaining rights, and whether Respon-
dent lawfully refused to bargain with it, in violation of
Section 8(a)(5) of the Act. Respondent's challenge to the
Steelworker's successorship status is based upon the
Association's having given extremely short notice of its af-
filiation meeting and having confined such notice to Associ-
ation members rather than attempt to include all employees
covered by its collective-bargaining contract with the Re-
165
spondent. Some evidence was presented indicating that
there were replacements employed at that time who argu-
ably should have been permitted to vote.'I find no merit in
Respondent's contention. The affiliation of the independent
union with an international was an internal matter, not a
selection of a new bargaining representatives which at that
time would have been untimely. As such, continued inde-
pendence or affiliation of the Association was a matter
which concerned only its members, and the evidence clearly
establishes that despite the short notice, membership atten-
dance and participation was near 100 percent. Accordingly,
I find no impedement to successorship, including all rights
and contractual obligations.
However, I do not find that Respondent violated Section
8(a)(5) and (1) by refusing to recognize and bargain with the
Steelworkers as the successor of the Independent. All Asso-
ciation members had been lawfully discharged on October
25 for their participation in the unprotected strike of Octo-
ber 17, and the affiliation meeting did not take place until
November 3. Therefore, the strikers, on whose behalf the
Steelworkers claimed the right to act, were no longer em-
ployees of Respondent when the notice of successorship and
request on behalf of the strikers was presented to Respon-
dent. The Steelworkers made no effort to administer the
contract on behalf of other unit employees, and not until
December 20, did it assert incumbent union rights with
respect to the contract unit as a whole by giving Respondent
the notification of its desire to negotiate a new agreement
to succeed the expiring contract. By that time, Respondent's
plant had been closed down and it had no employees. The
plant had not reopened at the time of the hearing and no
evidence was presented as to any future plans. Although
Respondent's response, to this last request, if any, is not a
matter of record, it is clear that the circumstances herein
would provide a substantial basis for questioning and re-
quiring proof of even an unaltered incumbent union's repre-
sentative status. Accordingly, I shall also recommend
dismissal of this allegation of the complaint herein.
As I have found that the Respondent did not violate
Section 8(a)(5), (3), and/or (1) of the Act, as alleged, I shall
recommend dismissal of the complaint in its entirety.
CONCLUSIONS OF LAW
zs See UEW Local 1113, supra, fn. 22; cf. Mastro Plastics Corp., 350 U.S.
270 (1956).
26 The General Counsel argues that these employees and their committee-
men were quite unsophisticated as to the functions and purposes of-a truly
viable labor organization, that Respondent attempted to take advantage of
their naivete by exercising authoritarian control over the Association, and
that the Association had relatively little power in bargaining or administering
the resulting contract. I would not dispute the General Counsel's assertion
that this is amply supported by the record evidence, particularly that relating
to the bargaining history. However, to my knowledge, unless domination is
alleged and established, this cannot be found to be an unfair labor practice,
nor does a lack of sophistication relieve employees of their contract responsi-
bilitty.
2 See Arlan's Department Store of Michigan, 133 NLRB 802; Poloron Prod-
ucts of Indiana, Inc., 177 NLRB 435.
1. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Kelley's Island Employees Association was at relevant
times until November 3, 1972, when it became affiliated
with United Steelworkers of America, AFL-CIO, and the
United Steelworkers of America, AFL-CIO, and its Local
8070 is and has been a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent has not engaged in unfair labor prac-
tices as alleged in the complaint.
Accordingly , I issue the following recommended:
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER 28
Upon the basis of the foregoing findings and conclusions,
and upon the entire record in the case , pursuant to Section
10(c) of the National Labor Relations Act, as amended,
IT IS ORDERED that the complaint issued herein against
Kellstone, Inc., be , and it hereby is, dismissed.
za In the event no exceptions are filed as provided by Sec. 102 .46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , recommendations, and Recommended Order herein shall, as
provided in Sec. 102 48 of the Rules and Regulations , be adopted by the
Board and become its findings , conclusions , and order , and all objections
thereto shall be deemed waived for all purposes.