Kerrigan Iron Works, Inc.

National Labor Relations Board - Board Decisions

May 21, 1954

108 N.L.R.B. 933 (N.L.R.B. 1954)

KERRIGAN IRON WORKS, INC. 933
KERRIGAN IRON WORKS , INC. and SHOPMEN ' S LOCAL UNION
NO. 733, INTERNATIONAL ASSOCIATION OF BRIDGE,
STRUCTURAL AND ORNAMENTAL IRON WORKERS, AFL.
Cases Nos . 10-CA - 1438 and 10-CA-1504 . May 21, 1954
DECISION AND ORDER
On July 29 , 1953, Trial Examiner Horace A. Ruckel issued
his Intermediate Report in the above-entitled proceeding, find-
ing that the Respondent had engaged in and was engaging in
certain unfair labor practices , and recommending that it
cease and desist therefrom and take certain affirmative
action , as set forth in the copy of the Intermediate Report
attached hereto . The Trial Examiner also found that the
Respondent had not engaged in certain other alleged unfair
labor practices , and recommended that the complaint be
dismissed as to these allegations . Thereafter , the Respondent
and the Union filed exceptions to the Intermediate Report and
supporting briefs.
The Board has reviewed the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial error
was committed . The -rulings are hereby affirmed . The Board
has considered the Intermediate Report , the exceptions and
briefs, and the entire record in the case .' We hereby adopt
the Trial Examiner ' s findings , conclusions , and recommenda-
tions , insofar as they are consistent with our decision here-
in.
1. The Trial Examiner found , and we agree , that the Re-
spondent did not violate Section 8 ( a) (5) of the Act during
bargaining negotiations with the Union in February and March
1952 , because an impasse was reached concerning the Union's
request for a wage increase.
2. The Trial Examiner found that the Respondent's ad-
mitted refusal to discuss with the Union the transfer of em-
ployees from the North plant to the new River plant , consti-
tuted a violation of Section 8 (a) (5). We find it unnecessary
to pass upon this finding , for even assuming , without deciding,
the existence of such a bargaining obligation by the Respondent
under the circumstances of this case , the Respondent ' s conduct
would have amounted to no more than a technical violation of
the Act, requiring no remedial order . This is so because
there was no discrimination in the Respondent's failure to
effect interplant transfers of employees and, both before and
'On February 3 and May 12 , 1954,- the parties entered into stipulations relating to events
concerning a letter which was sent by the Respondent to striking employees on April 18,
1951. The stipulations were agreed upon in lieu of a further hearing which was ordered
by the Board; and the parties waived the issuance of a Supplemental Intermediate Report and
the issuance of Proposed Findings by the Board. The stipulations are hereby accepted and
made a part of the record herein and, in accordance with the Rules and Regulations of the
Board, the proceeding is hereby transferred to and continued before the Board.
108 NLRB No. 118.
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after this incident , the Respondent otherwise bargained in good
faith with the Union.2
3. The Union excepted to the Trial Examiner ' s failure to
find that the Respondent violated the Act by refusing to bargain
with the Union in July 1952. As this matter was not alleged
in the complaint and was not fully litigated at the hearing, we
find that there is no substantial evidence upon which to base
a violation of the Act.
4. We agree with the Trial Examiner that the Respondent
violated Section 8 (a) (1) of the Act by soliciting strikers to
return to work with promises of economic benefits.
5. Although we unanimously agree with the Trial Examiner's
finding that a strike which began on March 17, 1952, was an
economic strike in its inception , the Board Members have
divergent views as to the interpretation and legal consequences
of a letter sent by the Respondent to the strikers on April 18,
1952. ' The letter stated:
You are hereby notified that work will be available
in our Northside Plant beginning the twenty - third day of
April , 1952. You ate notified to return on that date and
failure to do so will be deemed an indication on your part
that you do not desire reemployment in our plant , and your
employment will thereupon be permanently terminated.
No discrimination or hard feelings will be held against
anyone , and there will be no change in seniority, wage
rates , vacation pay, holiday pay, or your life insurance
and hospitalization for you and your family . So if you want
to work for us , your job will be here Wednesday for you
to report to.
Let us all forget the past and look forward to good and
plesant working conditions.
The parties stipulated as follows : " The letters of April 18,
1952, were treated by the Respondent as termination notices
to the employees to whom sent , as indicated by the terms of
the letter . No other termination notices were issued to striking
employees who did not return to work. Copies of the letter
were attached to the individual striker ' s personnel files, and
such files were removed from the active file cabinet to the
inactive file cabinet. The active file cabinet contains the per-
sonnel files of employees currently working, on sick leave, or
temporarily laid off. The inactive file cabinet contains the
personnel files of employees who are deceased , quit, or ter-
minated."
The record shows that on or before April 23, 1952 , the date
referred to in the letter, 35 strikers returned to work. After
2 Members Murdock and Peterson do not join in this finding. See their separate partial dis-
sent.
3 The Trial Examiner neglected to mention this letter in the Intermediate Report.
KERRIGAN IRON WORKS, INC. 935
that date, 18 strikers applied for work, of whom 14 were
reinstated.4 Between April 23 and July 7, 1952, a total of
180 new employees were hired,5 but no replacements for strik-
ers were hired before April 23. The bulk of the new hiring
took place in May 1952, when 100 workers were employed.
The record further indicates that approximately 135 employees
went on strike and that the strike is still in progress.
We are of the opinion that this letter did not in fact consti-
tute a discharge of those strikers who failed to report after
April 23, 1952. Notwithstanding the literal language of the let-
ter, the Respondent's subsequent conduct is inconsistent with
the view that these strikers who failed to report by April 23
had in fact lost their protected employment status and rights
on that date. Thus the record shows that after the critical
date 14 strikers applied for work and were given employment.
So far as the record shows, these employees were not dis-
criminated against in any way because they exercised their
right to continue to strike after April 23. As to the 4 strikers
who were not reemployed, it appears that as economic strikers
they had been replaced before they applied. No adverse infer-
ence may be drawn from this fact, for the reemployment rights
of strikers is subject to the act of replacement by the em-
ployer.' The record fails to disclose a single instance where a
striker who had not been replaced was denied employment after
April 23. In the opinion of the Board majority, the Respondent's
objective conduct clearly shows that the Respondent did not
in fact impair the protected status of the striking employees
by its letter of April 18.T
Nevertheless, Chairman Farmer and Member Beeson do
not condone the use of such a letter, as they regard it as an
unlawful strike-breaking technique, violative of Section 8
(a) (1) of the Act. They construe the letter as a threat of dis-
charge, designed to coerce the strikers to abandon the strike.
However, they do not believe that the record as a whole
establishes that this unfair labor practice prolonged or other-
wise converted the original economic strike into an unfair
labor practice one; the strikers, therefore, are entitled to no
remedial order. Member Rodgers agrees with this result
but does not agree that the letter violated Section 8 (a) (1).
He regards the letter as a valid notification to the strikers
that unless they return to work by April 23, the Respondent
4No work was available for the remaining 4 strikers at the time they requested reinstate-
ment. Two of these applied more than a year from the date of the letter. The other 2, whose
jobs required special skills and who applied shortly after April 23, 1952, were denied
reinstatement because their jobs had been filled. All 4 of them were requested to execute
written applications so that they could be recalled when work became available, but they
refused to do so.
6 This total includes striker replacements and also replacements of new employees who
worked for a short time and quit.
6N. L. R. B. v. Mackay Radio & Telegraph Co., 304 U. S. 333, 345.
T See The Texas Company, 93 NLRB 1358, 1359.
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would exercise its right under the Act to replace economic
strikers.' Since the majority already agrees that the letter
was not sufficiently serious to convert the economic strike
into an unfair labor practice strike, and that the employees
were not discriminated against "in any way" because they
had engaged in the strike, Member Rodgers believes that it
would be inconsistent to characterize as "unlawful" an em-
ployer's written statement that he intended to exercise his
concededly lawful rights under the Act. Furthermore, he
considers that the Board's policy with respect to the subject
matter of the letter makes the entire transaction a game of
words. For had the employer chosen to use the words "I will
replace you" instead of the equivalent language in the first
paragraph of the letter, we would not quarrel with his legal
right to state his intentions. But when, by other language, he
conveys the identical intention, his motives become suspect
and his actions unlawful. This over-emphasizes the form and
negates the substance of the Act.
ORDER
Upon the entire record in the case and pursuant to Section
10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that the Re-
spondent, Kerrigan Iron Works, Inc., Nashville, Tennessee,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from interfering with, restraining, or
coercing its employees in the right to act concertedly in sup-
port of a strike, to self-organization, to form labor organiza-
tions, to join or assist Shopmen's Local Union No. 733,
International Association of Bridge , Structural and Ornamental
Iron Workers, AFL, or any other labor organization to bargain
collectively through representatives of their own choosing, to
engage in concerted activity for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from any or all such activities, except to the extent that such
right may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as auth-
orized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board
finds will effectuate the policies of the Act:
(a) Post immediately at its plant in Nashville, Tennessee,
copies of the notice attached hereto and marked "Appendix
A."' Copies of said notice, to be furnished by the Regional
Director for the Tenth Region, shall, after being duly signed
by a representative of the Respondent, be posted by it upon
8 See Kansas Milling Company v. N. L. R. B , 185 F. 2d 413 (C. A. 10).
9In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
KERRIGAN IRON WORKS, INC. 937
receipt thereof and maintained by it for sixty (60) consecutive
days thereafter in conspicuous places , including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to insure that said
notice is not altered , defaced , or covered by any other material.
(b) Notify the Regional Director for the Tenth Region, in
writing , within ten (10 ) days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges that the Respondent
violated Section 8 (a) (3) and (5) of the Act.
Members Murdock and Peterson , concurring in part and
dissenting in part:
We concur in so much of the majority decision as affirms
the Trial Examiner ' s finding that the Respondent violated
Section 8 ( a) (1) by soliciting strikers to return to work with
promises of economic benefit , and his failure to find a refusal
to bargain with the Union in July 1952. Contrary to our
colleagues , who do not pass on this issue , we would affirm the
Trial Examinr ' s finding that the Respondent ' s admitted refusal
to discuss with the Union the transfer of employees from the
North plant to the new River plant, constituted a violation of
Section 8 ( a) (5). We cannot agree that this is a technical
'violation and would find that it at least merits a cease and
desist order.'
We dissent from the conclusion of the majority that the
April 18, 1952, letter did not in fact constitute a discharge of
the strikers who refused to abandon the strike and failed to
report in accordance with its terms . In our view the conclusion
that this letter was an effective discharge violation of Section
8 (a) (3) is impelled by the clear and obvious language of the
letter itself . Any doubt that the Respondent meant what it
said is effectively dispelled by the forthright admission by the
Respondent in the stipulation that "the letters of April 18,
1952, were treated by the Respondent as termination notices
to employees to whom sent , as indicated by the terms of the
letter . No other termination notices were sent to striking em-
ployees who did not return to work ." We are at a loss to under-
stand what further proof is necessary to establish a present
discharge of strikers ." Although the Respondent concedes that
it intended to and did discharge the strikers , it appears that
lOSee Stilley Plywood Company, Inc., 94 NLRB 932, 975, enforced 199 F. 2d 319 (C A. 4);
California Portland Cement Company, 101 NLRB 1436, 1439; New Madrid Mfg. Co., 104
NLRB 117; Brown Truck and Trailer etc., 106 NLRB 999.
11 See N. L. R. B v. United States Cold Storage Corp., 203 F. 2d 924 (C A. 5), enforcing
96 NLRB 1108 , where the court , in agreeing with the Board ' s holding that a letter constituted
an unlawful discharge of strikers who were therefore entitled to reinstatement, relied on
the language of the employer 's letter ( which unlike the instant one was equivocal ) and testi-
mony that the employer regarded the letter as notice of discharge if the strikers did not
return. See also Kallaher and Mee, Inc., 87 NLRB 410, 411.
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the majority strains to reach a contrary result because the
Respondent , after April 23, rehired 14 strikers and refused
to hire 4 others who had been replaced . However , this fact is
not relevant to the issue of whether the Respondent had already
wrongfully deprived the strikers of their employee status.
That the Respondent may have in effect canceled the dischagge
by reinstating the 14 strikers with all their former employee
rights does not alter the illegal character of the original
discharge , but only eliminates the need for a reinstatement
order for them. In any event , it cannot be found on this record
that the 14 strikers were in fact reinstated as old employees
with all former rights , as distinguished from being hired as
new employees . Indeed, if any inference be drawn , it must be
that they were reemployed as new employees , for it appears
that the Respondent requested the 4 strikers who were not
rehired to file new applications for employment . Being satisfied
that the Respondent wrongfully discharged all strikers on
April 23, in violation of Section 8 (a) (3) of the Act, we would
so find and would order immediate reinstatement for all
strikers and award them back pay from the date of their
abandonment of the strike to the date of offer of reinstatement."
In any event, agreeing that the letter constituted at least an
unlawful strike -breaking technique violative of Section 8 (a)
(1) of the Act, as fou-td by Chairman Farmer and Member
Beeson , we would further find that such an unfair laboi
practice converted the strike into an unfair labor practice one.
One of the obvious purposes of the letter was to coerce strikers,
in derogation of their protected right , to abandon the strike
and return to work. It might be argued that literally speaking
such action was designed to shorten , albeit illegally, the strike,
and it might well have such an effect had all the strikers been
induced to return to work. In such an event, there would have
been no reinstatement issue before the Board . However, as
noted above, 35 strikers were illegally induced to return to work
and approximately 85 employees elected to continue their
protected striking action . This limited but substantial success
of the Respondent ' s strike-breaking technique demonstrably
strengthened the Respondent ' s hand in resisting the Union's
demands , which necessarily and inherently prolonged the strike.
Thus, strikers were pitted against former strikers and the
Respondent obtained the services of a substantial number of
its trained employees so that resumption of operations could
be facilitated without the return of all strikers . " Moreover,
the strike was prolonged for another reason. The strikers who
failed to return in the face of the Respondent ' s threat to dis-
charge after April 23 could reasonably have believed that after
that date they in fact had no jobs and that the only way they
12 See cases cited in footnote 11, supra
l3Cathey Lumber Co., 86 NLRB 157 , enforced 185 F . 2d 1021 (C. A. 5); set aside on com-
pliance grounds 189 F. 2d 428.
KERRIGAN IRON WORKS, INC. 939
could secure reinstatement with all former rights was to con-
tinue the strike in order to bring pressure upon the Respondent
by enlisting the support of the employees who were working and
the public at large . Accordingly, we would hold that the strike,
which was economic in its inception, was transformed into an
unfair labor practice by the Respondent ' s letter and would
issue an appropriate remedial order for those strikers who
were not reinstated upon request, and those who have con-
tinued to strike.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Re-
lations Board , and in order to effectuate the policies of the
National Labor Relations Act, we hereby notify our employees
that:
WE WILL NOT interfere with, restrain , or coerce our
employees in the exercise of their right to act concertedly
in support of a strike , to self-organization , to form labor
organizations , to join or assist Shopmen ' s Local Union No.
733, International Association of Bridge , Structural and
Ornamental Iron Workers , AFL, or any other labor organi-
zation , to bargain collectively through representatives of
their own choosing , and to engage in concerted activities
for the purpose of collective bargaining or other mutual
aid or protection , and to refrain from any or all of such
activities except to the extent that such right may be af-
fected by an agreement requiring membership in a labor
organization as a condition of employment , as authorized
in Section 8 (a) (3) of the Act.
All our employees are free to become or remain members
of this Union, or any other labor organization.
KERRIGAN IRON WORKS, INC.,
Employer.
Dated ................ By....................................................
(Representative ) (Title)
This notice must remain posted for 60 days from the date
hereof, and must not be altered , defaced, or covered by any
other material.
Intermediate Report
STATEMENT OF THE CASE
Pursuant to amended charges filed on July 23 and October 16, 1952, by International Asso-
ciation of Bridge, Structural and Ornamental Iron Workers, AFL, herein called the Union,
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the General Counsel of the National Labor Relations Board, herein respectively called the
General Counsel and the Board, by the Regional Director for the Tenth Region (Atlanta,
Georgia), issued his complaint dated March 18, 1953, against Kerrigan Iron Works, Inc.,
herein called Respondent, alleging that Respondent had engaged in certain unfair labor
practices affecting commerce within the meaning of Section 8 (a) (1) (3) and (5) and Section
2 (6) and (7) of the National Labor Relations Act as amended, 61 Stat. 136, herein called the
Act. Copies of the charge, the complaint, and the notice of hearing were duly served upon
Respondent and the Union.
With respect to the unfair labor practices the complaint alleged in substance that Respond-
ent on or about November 1, 1951, and at all times thereafter failed and refused to bargain
collectively with the Union as a representative of employees in an appropriate unit at its North
plant; (2) between October 26 and November 20, 1951, laid off and thereafter failed to reinstate
these employees because of their union membership and activity, (3) on or about April 23,
1951, discharged and thereafter refused to reinstate its employees who had gone on strike at
the North plant on the previous March 17, (4) on or about February 22, 1952, discharged and
refused to reinstate the employees at Respondent's River plant who went on strike, and (5) on
or about March 14, 1952, employed a person to engage in surveillance of union meetings, and
on various dates solicited certain striking employees to return to work through promises of
economic benefits.
On March 30, 1953, Respondent filed its answer admitting certain allegations of the com-
plaint with respect to the nature of its business , but denying that it had engaged in any unfair
labor practices. Pursuant to notice a hearing was held at Nashville, Tennessee, from April
6 to 10, 1953, before the undersigned Trial Examiner The General Counsel, Respondent,
and the Union were represented by counsel and participated in the hearing. Full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing
upon the issues was afforded all parties. On motion, the allegation of surveillance was dis-
missed At the conclusion of the hearing the parties waived oral argument and were granted
until April 30 to file briefs with me Subsequently this time was extended by the Chief Trial
Examiner to June 8, 1953. Respondent and the Union filed timely briefs
Upon the entire record in the case and from my observation of witnesses, I make the fol-
lowing:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Tennessee corporation having its principal office and two manufacturing
plants at Nashville, Tennessee, one located on Herman Street, called the North plant, and
the other on First Avenue, called the River plant, where it is engaged in the fabrication and
sale of iron and steel products. In the course of its business operations in the year 1952, which
is a period representative of all times material herein, it purchased materials, parts, and
supplies valued in excess of $200,000, more than 30 percent of which was shipped to its
,Nashville, Tennessee, plant from places outside the State of Tennessee. During the same
period Respondent manufactured and sold products valued in excess of $300,000, more than
50 percent of which in value was sold and shipped to customers outside of Tennessee
IL THE LABOR ORGANIZATION INVOLVED
Shopmen's Local Union No. 733, International Association of Bridge, Structural and Orna-
mental Iron Workers is a labor organization admitting employees of Respondent to member-
ship. It is affiliated with the American Federation of Labor.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain
1 The appropriate unit and the Union's majority therein
The complaint alleges, it is not controverted, and I find that all production and maintenance
employees at Respondent's North plant including janitors and shipping and receiving clerks,
KERRIGAN IRON WORKS, INC. 941
excluding office and clerical employees , timekeepers , guards , professional employees, and
supervisors as defined in the Act , constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 ( b) of the Act On May 7, 1951 , the Board certified
the Union as a representative of all its employees in the unit above described pursuant to an
election held on May 27, 1951.
2. The failure to bargain and the alleged failure to bargain
(a) The transfer of work to the River plant
On July 3, 1951, effective as of July 2, Respondent and the Union entered into a 1-year
contract due by its terms to expire on July 2, 1952 In addition to its wage provisions the
contract contained a checkoff-of-dues clause , a comprehensive grievance procedure, and
provided for arbitration in cases of disputes not reconcilable at a lower level . The contract
also provided that it might be reopened upon GO days' notice by either party, but that if at
the end of 60 days after the service of notice the parties are unable to reach an agreement
the contract should then be considered terminated.
Respondent at the time of the execution of this contract and for a while thereafter operated
the North plant and the old River plant This latter plant was leased by Respondent while
Respondent had under construction the new River plant . During the construction of the new
plant , the manufacture of railroad grating was transferred temporarily from the old River
plant to the North plant , to be transferred again to the new River plant upon its completion.
In October 1951, the new River plant, hereinafter referred to only as the River plant, was
sufficiently completed so that certain jigs were transferred from the old River plant and
permanently set up at the new River plant The employees who had worked on these machines
at the North plant were laid off and a new labor force recruited at the River plant.
On October 26 the Union, by Pat Williams, its special representative , brought this up as a
grievance at a regular meeting between the grievance committee and Respondent, and on
November 26 wrote Respondent a letter , pertinent paragraphs which were as follows
1. The Company has removed and transferred from its plant covered by the afore-
mentioned agreement certain work operations to another location, thereby depriving em-
ployees covered by said agreement on (sic ) the right to perform such production and
maintenance work required in connection with such work operation.
2. The Company has removed and transferred from its plant covered by said agree-
ment machinery , tools and material and transferred same to another location and by such
action deprives the employees covered by said agreement of the right to operate such
machinery and fabricate such material.
3 The Company has, by this action put into operation Work Operations at another
location that previous to such action was performed exclusively in the plant covered by
said agreement and in addition has terminated the services of those employees hereto-
fore performing such work operations and has consistently refused to employ said em-
ployees on said work operations at the location where the aforementioned machinery,
tools and material have been transferred
At the time the existing agreement was consumated , the work in question existed
in the Company plant covered by said agreement and the Company, by virtue of the
provisions of Section ( 1) of said Agreement , granted solely to its employees covered
by said agreement the right to perform all work in connection with the fabrication or
maintenance work , such being exclusive of all other Unions, Crafts or EMPLOYEE
GROUPS.
Section 1 of the agreement referred to in the Union ' s letter of November 26 in pertinent
part reads as follows:
The Company hereby recognizes and confirms the right of such employees (i.e the em-
ployees within the unit) to all work done by the Company at its shop or shops located
at the above address or (the North plant) in connection with the fabricating of iron, steel
and metal products and in connection with such maintenance work, and for the duration
of this agreement grants such work jurisdiction to such employees solely and to the
exclusion of all other unions , crafts or employee groups
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Subsequently, the Union sent Respondent letters similar to that of November 26, demanding
that its grievance be discussed with the Respondent. All these demands, it is admitted, Re-
spondent rejected, as well as a demand for arbitration, stating that "this matter is not cov-
ered by our contract and is not subject to arbitration as we have not violated any section of
the agreement."
Conclusions
The gist of the Union's grievance, as well as the allegation that Respondent refused to
bargain , is that the work should not have been transferred from the North plant to the River
plant without discussing the matter with the Union, and that the continued employment of
employees who had worked on the jigs should have been negotiated with the Union. Respond-
ent's contention, as stated in its brief, is that since, as was the fact, the Union did not repre-
sent the employees at the River plant, it was not required to bargain concerning the employ-
ment of personnel there. I disagree with this contention. Certainly the matter of the transfer
of this work out of the appropriate unit and into the unorganized River plant was of vital con-
cern to the Union. Without, however, passing upon the question as to whether Respondent's
determination to manufacture the railroad grating at the River plant rather than to continue
to do so at the North plant without consultation with the Union, was a proper exercise of
management prerogative, I nevertheless find that the Union was within its rights in demanding
that Respondent bargain concerning the transfer of the employees who had been working on
the machines.i Respondent contends that it was its settled policy not to transfer one group
of employees to a new plant but rather to build up the organization of the new plant from
scratch. If the matter was bargainable, as I find, then it is irrelevant what Respondent's
policy was before it executed its contract with the Union. There is no requirement under the
Act that Respondent change its policy or accede to the Union's demand that the employees be
transferred along with their machines. All that Respondent was required to do, and what it
admittedly did not do, was to discuss the matter in good faith with the Union when requested.
In refusing to do so, Respondent failed and refused to bargain collectively
(b) The wage issue
On January 16, 1952, Williams on behalf of the Union wrote Respondent requesting that the
contract be reopened to renegotiate wage rates under the 60-day reopening clause in the
contract. Meetings between representatives of Respondent and the Union were held on Feb-
ruary 6, 11, and March 2 and 12. Respondent' s position as expressed at these meetings was
that its contract with its customers had been based upon the wages agreed to in the contract
executed the previous July, which granted wage increases , and that if it were to increase
wages again it would lose money on these contracts Respondent therefore refused to accede
to any union proposal for an increase and did not make any counterproposal in that respect,
stating instead that if wage rates were to be changed at all it might be necessary to revise
them downwards
The testimony of Williams, who participated in the negotiations along with James Moran,
special representative of the International Association, R. F. Jennings, personnel director
of Respondent, and M. G. Beehan, Respondent's office manager, is that at the second meeting
on February 11 when Respondent's representatives stated that no increase could be granted,
Williams asked to see Respondent's books and Respondent refused to produce them. Beehan
denied while testifying that any such demand was made Neither Jennings nor Moran was asked
about it during their examination. On this state of the record I do not find that the demand
was made. Although 2 meetings were held following the February 11 meeting, there is no
evidence in the record that any such demand was made at either of these 2 meetings
(c) The strike
The contract having been reopened and no agreement having been reached to modify it, it
expired on March 16 by operation of the clause previously referred to On the following day
the Union struck both Respondent's North plant and the unorganized River plant, and a picket
line was thrown around both. The strike was still in effect at the time of the hearing.
'See Brown-McLaren Mfg. Co., 34 NLRB 984.
KERRIGAN IRON WORKS, INC. 943
During the strike representatives of the Union and Respondent met on several occasions
to discuss a settlement of the strike and a new contract. The Union submitted a new proposed
contract substantially the same as the previous one except a clause providing for an increase
in wages and certain changes in holidays and vacation plans. With respect to a meeting held on
April 18, 1952, Williams testified as follows
Q. Read your notes and tell me if it isn't in substance lust like I have asked you,
including that you refused to go any further unless I would agree that you were bargain-
ing for both plants . .
C
THE WITNESS (Reading): We told him that it was recognition of the Union at the
River plant , settlement of the existing grievances , and a new contract
Q. Didn't you state that the new contract would cover both plants.
A. It was so written.
Q. And didn't het say that that was what he'd have to have
A. He sure did, said it should cover both plants, and it was so written
Williams testified with respect to a further meeting on May 12 as follows-
Q. And didn't the Company representative ask openly in that meeting whether the
Union still insisted, as one of the conditions of settlement, that the contract had to
cover both the Herman Street plant and the River plant
A. That was our position, that the contract should cover both plants
Q. And didn't you reply that your position had not changed on that since the meeting
at the James Robertson Hotel?
A. I think that's correct, sir
Conclusions
The Union contends that Respondent's position taken during the negotiations pursuant to
the reopening of the contract and particularly its failure to make any counterproposal
respecting an increase in wages, constituted a failure to bargain collectively I cannot agree.
Respondent was under no duty to make a counterproposal. As has already been said, the con-
tract which had been executed the previous July provided for substantial wage increases and
Respondent had entered into contract with its customers based on those rates Upon the
Union's demand for reopening, Respondent, the record shows, restudied its outstanding con-
tracts and decided that no wage increases could be given without losing money. It stated its
findings to the Union's negotiators, and indicated that if any change in wages were to be made
the wages would have to be lowered rather than raised. The result of the negotiations was
an impasse.3
During the strike the parties continued to meet to discuss the terms of a new proposed
contract but without reacting an agreement. It appears from the record that a condition
2 Rutherford, general organizer, who conducted the negotiations for the Union at this meeting
along with Williams.
3 Williams' further testimony was as follows:
Q. Well, didn't you at that time take the position that, since the Union had reopened
it, the bargaining area was limited to how much increase, if any, could be agreed on
over the wages set out in the existing contract.
A When I reopened the agreement, I opened it with the full understanding that we
might not reach an agreement on any wage increase or decrease or whatever; that
we might have a stalemate, which we did.
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
precedent to reaching any contract was that the Respondent recognize the Union as the bargain-
ing agent of the employees at the River plant, and that the contract include them. The Union,
however, did not represent a majority of the employees at the River plant, and did not at any
time file a petition concerning them with the Board.
I have found above that Respondent, in November 1951, refused to bargain collectively with
the Union by declining to discuss the transfer of employees from the North plant to the River
plant. But I do not find that the strike which occurred 4 months later, on March 17, was
caused by this refusal. Since I now find that Respondent did not refuse to bargain collectively
with respect to wage increases in February, and March 1952, it follows that the strike which
occurred on March 17 was not caused by any unfair labor practices of Respondent, but was
an economic strike.
B. The alleged discriminatory layoffs
1. The layoffs in October, November , and December, 1951
On October 26, 1951, at the North plant, Respondent laid off 21 employees, on November 16,
22 employees, and on December 19, 12 employees, or a total of 55 employees. All these layoffs
were made in the order of seniority and there is no contention that union men were selected
in preference to nonunion employees. There is in fact no evidence in the record as to which
belonged to the Union and which did not, although the Respondent presumably had such knowl-
edge by reason of the checkoff system in effect The General Counsel contends, however,
that the decision to make the layoffs was discriminatorily motivated, while Respondent contends
that it was economically determined. These layoffs took place during the period when Re-
spondent was transferring the machines from the North plant to the River plant
H. H. O'Brien, who prior to the opening of the new plant was superintendent of the North
plant and after its opening general superintendent of both plants, testified that these layoffs
were due to a falling off in orders as well as a cutback in the amount of steel allowed Re-
spondent under the National Production Authority of the Federal government. William C.
Carson, Respondent's manager of the constructual and grating division of the Respondent,
charged with the preparation of production schedules, testified credibly that he applied for
1,950 tons of steel for use at the North plant during the third quarter of 1951. and received
only 1,397 tons He was able to find sources of supply for only 400 tons, surrendering the
balance of his allotment to the NPA. For the fourth quarter of the year Carson requested
2,250 tons but received an allotment of only 616 tons Most of this allotment he managed to
place with a steel producer, and this was almost although not quite sufficient for Respondent's
railroad grating requirement but not enough for its industrial gratings.
Moreover, during the latter part of 1951 and the first part of 1952, because of the scarcity
of steel, there was a falling off in the manufacture of railroad freight cars with the consequent
cancellations and postponements of orders for railroad gratings. These are attached to freight
cars. For example, one of Respondent's principal orders was for 2,200 car sets for Pullman
Standard Car Manufacturing Company, originally scheduled to be shipped during the week of
October 15. This was rescheduled for shipment the week of December 31, 1951. Respondent's
decision to lay off employees because of both a scarcity in steel and the cancellation or post-
ponement of orders was made primarily by O'Brien, but in conference with Jennings, Re-
spondent's personnel director The layoffs were made in accordance with the seniority
provisions of the Union's contract About 2 months later, and prior to the strike on March
17, 1952, all the laid-off employees were notified to return to work and most of them did so
during the months of January and February 1952.
2. The layoff of the River plant night shift on February 22, 1952
By 'February, the River plant was engaged almost exclusively in the production of rail-
road grating. O'Brien testified that the layoff of the night shift at the new River plant which
took place on February 22 was due to the same basic conditions which necessitated the layoff
at the Northside plant the previous winter and fall. According to Carson, Respondent received
requests from various customers to delay shipments of railroad grating already ordered.
For example, Pullman Standard Car Manufacturing Company requested that delivery of 200
car sets of boxcar running board, scheduled for the week of February 11, 1952, be postponed
until May; an order from the Burlington Equipment Company for 250 sets with scheduled
KERRIGAN IRON WORKS, INC. 945
shipment date in February 1952, was requested to be postponed to November. An order from
Mt Vernon Car Manufacturing Company for 35q car sets, delivery originally scheduled to
be made during the latter part of January 1952, was requested to be rescheduled for March.
The delivery of sets of boxcar running boards for the Spokane, Portland and Seattle Rail-
road, requested during the second quarter of 1952, was rescheduled for the third quarter of
1952. An order from Pullman Standard Car Manufacturing Company for 300 car sets received
with delivery requested during April 1952, was rescheduled for May
Carson's further credible testimony is to the effect that because of the cancellation or
postponement of these and other orders there was, beginning February 25, 1952, no work
available in the River plant for the following 7-week period because, until the week of April
7, 1952, there were no planned shipments of railroad grating. As the result of this situa-
tion O'Brien decided upon the layoff of employees on the night shift On the morning of
February 22, 1952, Jennings, Respondent's personnel director, upon O'Brien's instructions
went to the River plant to handle the layoff of the night shift in consultation with Conners,
superintendent of that plant During Jennings' conversation with Conners, James McSwiney
and Eubanks, leadermen, came into the office and interposed themselves in the conversation
There is a direct conflict in the evidence as to what then transpired.
McSwiney, called as a witness by the General Counsel, testified that a discussion took
place concerning the number of union men on the night shift, and that both Eubanks and
Jennings expressed themselves as wanting to check the organization of the River plant.
Eubanks and Jennings, according to McSwiney, proposed laying off the whole night shift and
taking back on the day shift those employees believed to be nonunion. According to McSwiney,
Conners was reluctant to fall in with this suggestion and N. G. Beehan, Respondent's office
manager, who appeared at the conference, opposed it
The testimony of Jennings, however, is that Conners and McSwiney themselves wanted to
lay off the men on the basis of their union membership, that he, Jennings, opposed it and
went back to the North plant to consult with Beehan. Beehan, both according to his own testi-
mony and that of Jennings, called Cecil Sims, Respondent's counsel herein, having been unable
to make contact with Kerrigan who was in Florida, and laid the situation before him. Sims
advised Jennings that Conners' suggestion was illegal and suggested that the whole night shift
be laid off and those employees who could be used on the day shift be transferred to that shift
on the basis of seniority, replacing employees with less seniority on the day shift. Beehan
reported back to Conners at the River plant that he had been directed by Respondent's counsel
to make the layoffs in this fashion and that he would do so
Kerrigan's testimony is that at the time of the layoff he received a long distance telephone
call from McSwiney, who told him that things were in a "mess" at the plant and suggested
that he come home and straighten it out, that Jennings was "trying to drive the whole River
plant into the Union," that he, McSwmey, was not going to work if the Union came in, and
that Jennings had "double crossed" Respondent. The testimony of Kerrigan is that he paid
little attention to McSwiney's diatribe because the latter had the habit of injecting himself
into situations which were beyond his jurisdiction, and was constantly complaining about
higher supervision. When Kerrigan got back from Florida he gave orders that McSwmey,
whom he testified he considered was not doing his work properly, should either "get to
work" or quit. When ordered by Conners, in the presence of Kerrigan, to perform certain
duties which McSwiney thought that a leaderman should not do, Kerrigan told Conners that
if he, Kerrigan, were superintendent and an employee were to say that he would not perform
a job he would discharge him McSwiney rejoined that he was quitting and walked off At the
hearing McSwiney admitted the substance of this altercation, but testified that he construed
his separation as a resignation and not a discharge
Neither Eubanks, although still employed, nor Conners was called by either party as a
witness. Conners was hired in January 1952 as superintendent of the River plant, and was
let go in April of that year. The issue of credibility thus posed is one between McSwiney on
the one hand and Beehan, Jennings, and Kerrigan on the other. In this state of the record
I am unable to accept as true McSwiney's unsupported testimony. That there was a question
as to whether layoffs should be made on the basis of union membership, is admitted. But
both Beehan and Jennings state that it was Conners and McSwiney who urged this method,
and that they themselves successfully opposed it The matter is perhaps not entirely free
from doubt, partly because it is not clear from the record how much of a layoff was intended
before the extraneous question of union affiliation was raised, whether it was a layoff of only
part of the night shift or of all of it. I am persuaded that a layoff of some proportion was
339676 0 - 55 - 61
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
economically necessitated. Actually, as has been found, the whole shift was laid off after
Beehan's receipt of Simms' advice. There is no showing that those employees transferred to
the day shift were transferred out of order of seniority On the record considered as a whole.
I am unable to accept the General Counsel's contention that the layoff was discriminatorily
motivated.
C. Other alleged interference, restraint, and coercion
On April 18, 1952, during the strike which began on March 17, an informal meeting took
place at a cafe in Nashville attended by Jennings, his son, and employees C. B. Armstrong,
Jake Brumley, C. M. Bush, Leroy Whittaker, andJ. C. Higgins, the last named a union steward.
The meeting was arranged by Higgins and Armstrong for the purpose of discussing the pos-
sibility of going back to work. Bush testified during the General Counsel's case-in-chief,
and Whittaker and Brumley on rebuttal, that on this occasion Jennings stated that he wanted
the Union's picket line broken on the following Tuesday and that if they came in on that day
he would have their timecards punched and pay them Monday's wages even though they did not
work The same witnesses related that when Brumley said that the Union owed him $ 15 for
picket duty, Jennings told him that he would pay him that amount himself. After some further
conversaton the meeting broke up None of the employees came in on Tuesday as, according
to their testimony, Jennings had suggested. Armstrong, called as a witness by Respondent,
testified that he did not hear Jennings make any such statements as the above, and that Jennings
said only, in response to a question, that the strikers' jobs were available if they wished to
return to work. Jennings denied making the statements attributed to him. Neither Higgins nor
Jennings' son was called as a witness
I find that Jennings made in substance the statements attributed to him by Bush, Brumley,
and Whittaker. -Thereby Respondent interfered with, restrained, and coerced its employees
within the meaning of Section 7 of the Act.
McSwiney testified that shortly before the River plant was opened, Kerrigan addressed a
meeting of supervisors and announced that Conners had been hired to take charge of the new
plant, going on to say, according to McSwiney, that he "didn't want no part of the union over
at that plant at all ," that he was going to do whatever was necessary to keep the Union out
of it, and told the assembled supervisors that if they knew any employee who belonged to the
Union they were to report him and Respondent would get rid of him "one way or another "
Kerrigan's testimony is that he told the group only that he had hired Conners to come down
and run the new plant , asked them to cooperate with him to make it a success, and other state-
ments in a similar vein. He denied, and in this he is supported by Jennings and Vantrease,
another supervisor who was present, that he said anything at all about the Union. I do not
accept the unsupported testimony of McSwiney as being in accord with the fact, and I find
that Kerrigan did not make the statements which McSwiney attributed to him on this occasion.
McSwiney further testified that at several other such meetings the Union was the subject of
discussion and that sometimes Kerrigan and sometimes Jennings made statements similar
to the above. This testimony of McSwiney was similarly denied by Jennings and Kerrigan,
and I credit their denial
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above , occurring in connection with
the operation of Respondent described in section I, above, have a close , intimate and sub-
stantial relation to trade, traffic , and commerce among the several States, and tend to lead
to labor disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found the Respondent has engaged in certain unfair labor practices, I
shall recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that the Union represented a majority of Respondent's employees at the
North plant in an appropriate unit and that Respondent failed and refused to bargain col-
lectively with the Union with respect to the continued employment of employees laid off at
that plant, I shall recommend that the Respondent upon request bargain collectively on that
OWENS-ILLINOIS GLASS COMPANY 947
subject with the Union as the exclusive representative of the employees in the appropriate
unit.
Upon the basis of the foregoing and from the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent , Kerrigan Iron Works , Inc., is engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act.
2. Shopmen's Local Union No. 733, International Association of Bridge, Structural and
Ornamental Iron Workers, affiliated with the American Federation of Labor, is a labor
organization within the meaning of Section 2 (5) of the Act.
3. All production and maintenance employees at Respondent ' s North plant including jani-
tors, and shipping and receiving clerks, but excluding office and clerical employees, time-
keepers, guards , professional employees, and supervisors as defined in the Act , constitute
a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b)
of the Act.
4. Shopmen's Local Union No. 733, International Assocation of Bridge, Structural and Orna-
mental Iron Workers, at all times relevant herein has been the exclusive bargaining repre-
sentative within the meaning of Section 9 (a) of the Act of all employees in the aforesaid unit
for the purposes of collective bargaining.
5. By refusing to bargain collectively with Shopmen's Local Union No. 733, International
Association of Bridge, Structural and Ornamental Iron Workers„Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act.
6. By interfering with , restraining , and coercing its employees in the exercise of rights
guaranteed in Section 7 of the Act. Respondent has engaged in and is engaging in unfair labor
practices within the meaining of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
8. Respondent has not by laying off employees in October, November, and December, 1951,
and on or about February 22, 1952, committed any unfair labor practice.
[Recommendations omitted from publication.]
OWENS-ILLINOIS GLASS COMPANY and FEDERATION OF
GLASS, CERAMIC AND SILICA SAND WORKERS OF
AMERICA, CIO, Petitioner. Case No. 13-RC-3740. May 21,
1954
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, ahearingwas held before I. M. Lieberman,
hearing officer . The hearing officer ' s rulings made at the hear-
ing are free from prejudicial error and are hereby affirmed.
Upon the entire record in this case , the Board finds:'
1. The Employer is engaged in commerce within the mean-
ing of the National Labor Relations Act.
2. The labor organizations involved claim to represent em-
ployees of the Employer.
3. No question affecting commerce exists concerning the
representation of employees of the Employer within the meaning
of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the
following reasons:
I The Employer's and the Intervenor's requests for oral argument are hereby denied
because the record and briefs adequately set forth the positions of the parties.
108 NLRB No. 130.