Larkin Coils, Inc.

National Labor Relations Board - Board Decisions

Jun 29, 1960

127 N.L.R.B. 1606 (N.L.R.B. 1960)

1606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Larkin Coils, Incorporated and International Brotherhood of
Firemen and Oilers, AFL-CIO. Cases Nos. 10-CA-4086 and
10-CA-425. June 29, 1960
DECISION AND ORDER
On February 15,1960, Trial Examiner Albert P. Wheatley issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in and was not engaging in certain
of the unfair labor practices alleged in the complaint, but that it had
engaged in and was engaging in certain of the other unfair labor
practices alleged in the complaint, and recommending that it cease
and desist from the unfair labor practices found and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the General Counsel filed exceptions to
the Intermediate Report, together with a supporting brief.
The Board 1 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 Inter-
mediate Report, the exceptions and brief, and the entire record in
these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following additions.
1. For a considerable period of time prior to the commencement
of negotiations, the Respondent had, for economic reasons, been con-
sidering the abolition of its machine shop and small parts departments.
As set forth more fully in the Intermediate Report, the Respondent,
early in the negotiations, twice informed the Union of the contem-
plated shutdown. The Union's response, through E. G. Bartlett, its
representative, to G. Maynard Smith, the Respondent's counsel and
negotiator, was not to "mess up bargaining by harping on this issue.
Let's pass it."
We agree with the Trial Examiner's finding that the Respondent's
action in shutting down its machine shop and small parts depart-
ments did not constitute a refusal to bargain. Assuming, without
deciding, that the shutdown of a department is a bargainable issue, we
find, in view of the Respondent's notice of such action and the Union's
response, that the Respondent fulfilled any statutory duty existing
under Section 8(a) (5) of the Act. Accordingly, we dismiss this alle-
gation of the complaint.
2. No exceptions were filed to the Trial Examiner's findings that
F. C. Clay, C. J. Dover, and W. L. Piper were discriminatorily refused
1 Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its
powers in connection with these cases to a three -member panel [ Members Rodgers, Bean,
and Fanning].
127 NLRB No. 184.
LARKIN COILS, INCORPORATED 1607
reinstatement and that James M. Fair was discriminatorily suspended.
We adopt these findings pro forma.
ORDER
Upon the entire record in these cases, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Larkin Coils,
Incorporated, Atlanta, Georgia, its officers, agents, successors, and as-
signs, shall :
1. Cease and desist from :
(a) Discouraging membership in International Brotherhood of
Firemen and Oilers, AFL-CIO, or in any other labor organization
of its employees, by discriminatorily refusing to reinstate employees,
or otherwise discriminating in regard to their hire or tenure of em-
ployment or any term or condition of employment.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-organization,
to form labor organizations, to join or assist the aforesaid Union,
or any other labor organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid
or protection as guaranteed in Section 7 of the Act, and to refrain
from any and 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 authorized in Section
8(a) (3) of the Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer to F. G. Clay, C. J. Dover, and W. L. Piper immediate
and full reinstatement to their former or substantially equivalent
positions without prejudice to their seniority or other rights and
privileges, and make them, and James M. Fair, whole for any loss
of pay they may have suffered by reason of the discriminations against
them, in the manner set forth in the Intermediate Report.
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports,
and all other records necessary to determine money due under this
Order.
(c) Post at its plant in Atlanta, Georgia, copies of the notices at-
tached hereto marked "Appendix." 2 Copies of such notice, to be
a In 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."
1608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
furnished by the Regional Director for the Tenth Region, shall, after
being duly signed by its authorized representative , 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 its employees are customarily posted.
Reasonable steps shall be taken to insure that such notices are not
altered, defaced , or covered by any other material.
(d) Notify the Regional Director for the Tenth Region , in writing,
within 10 days from the date of this Order, what steps the Respondent
has taken to comply therewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our employees that :
WE WILL NOT discourage membership in the aforesaid Union,
or in any other labor organization of our employees , by refusing
to reinstate our employees , or otherwise discriminating in regard
to their hire or tenure of employment or any term or condition of
employment.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the right to self-
organization, to form labor organizations , to join or assist the
aforesaid Union, or any other labor organization , to bargain col-
lectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection as guaranteed in
Section 7 of the Act, and to refrain from any and all such activi-
ties, 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 authorized in Section 8(a) (3) of the
Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
WE WILL offer to F. G . Clay, C. J. Dover, and W . L. Piper im-
mediate and full reinstatement to their former or substantially
equivalent positions , without prejudice to their seniority or other
rights and privileges , and make them , and James M. Fair, whole
for any loss of pay they may have suffered by reason of the
discrimination against them.
LARKIN COILS, INCORPORATED 1609
All our employees are free to become, to remain, or to refrain be-
coming or remaining, members of the above-named labor organization
or any other labor organization.
LARKIN COILS, INCORPORATED,
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 AND RECOMMENDATIONS
STATEMENT OF THE CASE
This proceeding , with all parties represented , was heard before the Trial Examiner
in Atlanta, Georgia, on November 23 and 24, 1959, on the complaints of the
General Counsel and answers of Larkin Coils, Incorporated , herein called Respond-
ent. The issues litigated were whether Respondent violated Section 8 (a)(1), (3),
and (5) of the National Labor Relations Act, as amended , herein called the Act.
The parties have filed well prepared briefs which the Trial Examiner has considered.
Upon the entire record and observations of witnesses , the Trial Examiner makes
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent is a Georgia corporation maintaining its principal office and place
of business in Atlanta , Georgia, where it engages in the manufacture of refrigerating
equipment . It annually ships to customers located outside the State of Georgia,
products , valued in excess of $50,000. There is no issue herein concerning juris-
diction , and the undersigned finds that the evidence adduced satisfies the Board's
requirement for the assertion of jurisdiction.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Firemen and Oilers , AFL-CIO, ( herein called the
Union ) is a labor organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The primary issues herein are: (1 ) Whether Respondent unlawfully refused to
bargain on or about March 27, 1959, and thereafter ; (2) whether Respondent
unlawfully refused reinstatement to a group of its striking employees' on or about
July 21, 1959, and to one employee ( Vernon M . Bishop ) on or about August 13,
1959; ( 3) whether Respondent unlawfully suspended James M. Fair from on or
about July 30, 1959, to on or about August 3, 1959; and (4) whether Respondent
on or about May 5 , 1959, unlawfully engaged in surveillance of union meetings.
With respect to the refusal -to-bargain issue (which is the core of this matter),
the General Counsel 's case has a three-pronged trust-that the parties negotiated
a contract which Respondent refused to sign on or about March 27, 1959, that
Respondent unlawfully refused to bargain by unilaterally abolishing its small parts
department and machine shop on or about May 5, 1959, and that between March
27, 1959 , and on or about May 5, 1959, Respondent engaged in bad-faith bargaining.
3 H L. Ragsdale , L R Gassaway . W M Newman , Richard Van Leer, G. B Hood, G. F.
Childers , W. A. McDaniel , J W. Davenport , H. M Godfrey, Jaires Davenport , George
Briscoe, W. L. Piper, J. D. Leer, F G Clay, R. B Partain, L. M. Smith, C. J. Dover,
W. E Middleton , C. R. Davenport , Joel M Lucas, F H. Shy, D. M. McWaters, Silas
Fennell, V. A Hale, K. Piper, C C Piper, T. R Davenport, and Wyncll Davis.
1610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Refusal to bargain
On December 5, 1958, the Union was certified by the National Labor Relations
Board (herein called the Board) as the exclusive representative of Respondent's
employees in a production and maintenance unit.2 The Respondent and the Union
conducted fruitful negotiations from January until March 23, 1959. By that date
both parties had modified their positions and had reached agreement upon the bulk of
the contract provisions under consideration. However, they had not reached com-
plete accord. There were differences concerning what might be called fringe
items-items such as checkoff, jury pay, injury pay, and job bidding or seniority.
The General Counsel concedes that there was no refusal to bargain or bad-faith
bargaining prior to this date but contends that on this date (on or about March 23,
1959) the parties reached complete agreement and that, on or about March 27,
1959, Respondent refused to sign a written contract embodying the terms agreed
upon. See H. J. Heinz Company v. N.L.R.B., 311 U.S. 514. Respondent disputes
this contention and asserts that the parties did not reach an agreement-did not
arrive at a point where all that remained was to sign the contract. Each side in this
controversy (the General Counsel and the Respondent) adduced evidence tending
to support its position concerning this matter. The crucial evidence bearing upon
the issue now under consideration consists of testimony by the Union's International
representative and chief negotiator (E. G. Bartlett) and testimony by Respondent's
attorney and chief negotiator (G. Maynard Smith).
According to Bartlett, between the date of the last bargaining session with the
committees (around the first of March 1959) and the conclusion of the conference
,on March 23, 1959 (between Bartlett and Smith), a mutual agreement with respect
to all items under consideration except checkoff was reached by him (Bartlett) and
Smith and this understanding, together with the Union's proposal concerning check-
off, was incorporated into a written document which Smith was to present to
Respondent's president (0. M. Sims) with a statement that the Union would forego
its demands concerning checkoff rather than have such provisions (checkoff pro-
visions) stand in the way of a signed contract. According to Smith, no such
understanding was reached but he (Smith) and Bartlett believed they were so close
to such an understanding that they incorporated into a written document the matters
previously agreed upon, the Union's minimum demands on the fringe items the
negotiators had not agreed upon and the Union's proposal concerning checkoff,
and agreed that he (Smith) would present this document to Sims (who was in
Florida) for his approval and that he (Smith) would inform Sims that the Union
would forego its demands concerning checkoff if Respondent would accept the
remaining terms and conditions specified in the written document
A written document containing terms and conditions of employment, including
terms and conditions with respect to the aforementioned fringe items and including
checkoff provisions, was prepared (on March 23) and Smith did present this docu-
ment to Sims (on March 27). Sims did not sign or authorize signing of this
document.
While the testimony of Bartlett and Smith conflicts concerning the situation as of
March 23, it does not conflict with respect to checkoff-Smith and Bartlett had not
reached agreement concerning this matter and the Union would not insist upon
checkoff provisions if Respondent's president (Sims) would accept the other terms
and conditions embodied in the document which Smith presented to Sims. The fact
that Sims was to have a choice of accepting the document either with or without
checkoff provisions conditioned upon his acceptance of the other terms and condi-
tions stated in the document infers that there were matters other than checkoff upon
which the parties (the Union and the Respondent) had not reached accord. This
inference is corroborated by the testimony of other witnesses-notably General
Counsel witnesses, W. F. Middleton and W. W. Bryan, Jr., which reveals the nego-
tiators had not reached accord on all fringe items. In addition, the record as a
whole, including Bartlett's testimony, reveals that the negotiations were conducted
with an implied, if not an actual, understanding that agreements reached by the
negotiators were subject to approval by Respondent's president (Sims).3 In short,
this record reveals, and the Trial Examiner finds, that the parties had not reached
2 All production and maintenance employees of Respondent at its Atlanta, Georgia,
plant including truckdrivers but excluding all office clerical employees, professional em-
ployees, watchmen, guards, and supervisors as defined in the Act.
3 While Sims did not take part in the negotiations, he was kept informed concerning
them and frequently consulted about items under consideration and Bartlett was aware
of this situation.
LARKIN COILS, INCORPORATED 1611
the final step in the bargaining process-had not reached agreement on all matters
of substance so that there remained only the affixing of signatures.
As noted above , on March 27, 1959, Smith presented to Respondent 's president
(Sims ) the document drawn up on March 23. At that time Sims was suffering
from hypertension and high blood pressure and, at the suggestion of his physician,
was vacationing in Florida . Nevertheless, Smith and Sims conferred about the
document in question in the airport at Miami. After looking over the document,
Sims requested time to study it and suggested that further consideration be deferred
for about 10 days at which time he (Sims ) would be in Atlanta.
Before going to Florida, Smith promised to telephone Bartlett and let him know
the outcome of the meeting with Sims. There is no dispute herein that Smith did
call Bartlett from Florida , after conferring with Sims . However , the substance of
this conversation is in dispute. In the final analysis the dispute concerns whether
Smith said no contract or no contract at this time.
According to Smith:
I called Mr. Bartlett from Key Largo , Florida, just as I told him I would do
and this in substance was the conversation.
"Bart, I met Mr . Sims in the airport just as I told you I would . I did not get
an agreement from Mr . Sims this afternoon . Really, Bait , it was a pretty un-
fortunate time to present this thing because he wasn 't feeling well and it was
in the airport . I think we picked an unfortunate time."
And I said, "Mr. Sims wants to study this. He is going to be here another
week or 10 days and I will be back by then."
And I said, "Then we will sit down and try to get together."
At this point Mr. Bartlett lost his temper and he said "in other words, no
contract."
And I said, "Bart , certainly no contract at this time but I am telling you now,
we will be back in Atlanta in 10 days. At this time Mr. Sims will have had
time to study it and I think we will get some place."
"Well," he says , "you leave me no alternative."
And I said, "I don't think you ought to put it that way because you must
understand the circumstances surrounding my meeting Mr. Sims in Florida."
And I said , "We are throwing this at him at a right fast pace, let's at least give
him a chance to study it."
Well, this about ended the conversation and he said , "well, you left me no
alternative." And he said , "well, I am sorry."
And I said, "I am sorry."
So that is that story.
According to Bartlett:
On or about the 27th of March he [Smith] called me from Florida, he told
me-he says , "Mr. Sims is a changed man, I can 't do anything with him.
He refuses to sign the contract ." And I said , "does that mean no contract?"
And he said , "that means no contract."
Q. Did you say anything further?
A. I said that leaves me no alternative and that ended our conversation.
Upon the bases of the information heretofore mentioned , the record as a whole,
inherent probabilities and observations of witnesses the Trial Examiner credits
Smith's version of the March 27 telephone conversation.
After the long-distance telephone call from Smith to Bartlett on March 27, Bartlett
reported to the union members concerning the then current situation insofar as a
contract was concerned and the members voted to strike.
On April 10 , 1959, the employees of Respondent went on strike.
Premised upon Bartlett 's version of the foregoing events ( that Respondent refused
to sign a written document embodying terms agreed upon ), the General Counsel con-
tends that this strike was an unfair labor practice strike from its beginning. As
noted above, the Trial Examiner credits Smith 's version of the foregoing events and
finds that the evidence adduced does not establish that Respondent refused to sign a
written document embodying terms agreed upon . Accordingly the major premise
of the General Counsel falls . The Trial Examiner hereby rejects the contention that
this strike was an unfair labor practice one from its inception.
A further question now arises as to whether the strike , assuming it was prolonged
by the shutdown of the machine shop and small parts departments,4 was thereby
4 On May 5 the employees took down their picket line and attempted to return to work
whereupon they were informed of the shutdown . Upon receiving this announcement the
employees turned away, the picket line went back up, and the strike continued.
1612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
converted into an unfair labor practice strike. The answer to this problem depends
upon the answer to the question of whether the close down was a refusal to bargain
within the meaning of the Act . If it was, then the strike prolonged by this unfair
labor practice was converted.
For a considerable period of time prior to the commencement of negotiations,
Respondent was considering abolishing its machine shop and small parts departments
and it is not disputed that at the first bargaining session (on or about January 14,
1959 ) Respondent notified the Union that such an event was under consideration.
Respondent 's counsel and chief negotiator ( G. Maynard Smith ) testified that a few
days after the first bargaining conference-
In a telephone conversation with Mr . Bartlett [the Union 's International repre-
sentative and chief negotiator ] concerning this [the contemplated close-down of
the machine shop and small parts department ] I told him over the phone at
the time, I said , "Bart , this is a very serious thing . Now, don't brush it off
because we have been working to this end for a long time." And he said,
"well, Maynard let's for goodness sake not mess up bargaining by harping on
this issue . Let's pass it."
Smith further testified nothing else was said about the contemplated shutdown.
Bartlett testified that the conversation could have taken place as related by Smith
but that he (Bartlett ) did not remember it. In the light of the entire record herein
the Trial Examiner credits Smith's testimony and finds the facts to be as related by
Smith. There were no further remarks between Respondent and the Union con-
cerning the closing of these departments until the closedown was a fait accompli.
The machine shop and the small parts department were abolished on April 17, 1959
(during the strike ), when Respondent moved into a new building which was under
construction at the time of the negotiations herein . The Union first learned about
the shutdown when the strikers attempted to return to work on May 5 , 1959 . During
the strike negotiations looking toward a collective -bargaining agreement continued
(through the Federal Mediation and Conciliation Service ) but during these negotia-
tions neither party attempted to discuss this shutdown .5
The General Counsel concedes that the shutdown was for economic reasons. The
question for determination here is: Had the Union waived its right to be consulted
about this matter ? The General Counsel says "No" and Respondent "Yes." Recog-
nizing that a union's waiver of its statutory rights to be effective must be expressed in
"clear and unmistakeable " language ( see Intracoastal Terminal Inc., et al., 125 NLRB
359) the Trial Examiner, on the bases of the facts found above , believes and finds
that it did so herein . See E-Z Mills, Inc., 106 NLRB 1039 , 1046. As found above,
Respondent afforded the Union an opportunity (or opportunities ) to consult about
this closedown and at the Union 's request such consultation was deferred so as not
to "mess up" contract negotiations , which were being conducted throughout the
times material herein . In addition , the evidence adduced in this matter does not
establish that the closedown was done to undermine the Union or to avoid collective
bargaining with the Union and no such contentions are made herein. Upon the
bases of the facts found above , the Trial Examiner believes and finds that the
Union waived its right to be consulted about this shutdown and that the evidence
adduced does not establish that Respondent refused to bargain by unilaterally
abolishing its machine shop and small parts departments . It follows that the Trial
Examiner believes and finds that, assuming the strike was prolonged by the abolishing
of these departments , it was not thereby converted into an unfair labor practice
strike.
As noted above , negotiations looking toward a collective -bargaining agreement
continued during the strike. At the hearing in this matter, the General Counsel
contended that at the bargaining meeting held on April 13 Respondent engaged in
bad-faith bargaining . In the brief filed with the Trial Examiner the General Counsel
has now narrowed the issue to whether Respondent engaged in bad-faith bargaining
by refusing to bargain on April 13 because of the strike . Resolution of this issue
is dependent , to a large extent , upon resolutions of credibility.
The Union 's International representative and chief negotiator (E. G Bartlett)
testified that Respondent 's attorney and chief negotiator (G. Maynard Smith) took
an adamant position at the meeting on April 13 of not bargaining because of the
picket line. However, the testimony of other witnesses concerning this meeting is to
5 After the termination of the strike , all employees in the two departments closed down
were offered other employment , and all that reported back to work have been given
employment.
LARKIN COILS, INCORPORATED 1613
the effect that Smith did not refuse to bargain because of the picket line but merely
expressed a reluctance to do so. The latter evidence is corroborated by the fact that
contract terms were thereafter discussed. Upon the basis of analysis of the record
and observations of witnesses, the Trial Examiner believes and finds the testimony
of Smith more reliable than the testimony to the contrary and finds and concludes
that Respondent did not engage in bad-faith bargaining.
In view of the foregoing, the Trial Examiner recommends that the allegations of
the complaint to the effect that Respondent refused to bargain be dismissed.
C. Reinstatement of strikers
The strike ended on July 13, 1959, and on July 15 the Union made an unconditional
offer "to return to work at the jobs which they [certain employees-see footnote 11
formerly held . . . or to any jobs now available." A similar offer was made on
behalf of Vernon M. Bishop on August 7, 1959. Respondent notified the Union
of the status of the jobs, offered reinstatement to those strikers whose jobs had not
been filled, and informed the Union that approximately 30 Georgia Tech students
had been hired during the strike with a commitment that they would be employed
until the opening of the school year in September but that when jobs became vacant
after Labor Day, due to the Tech students returning to school, Respondent would
take back the strikers as Respondent's business required additional workers. On
September 2, 1959, Respondent notified certain employees who had not returned to
work prior to that time to report to work September 8.6 The following employees
did return to work on September 8:
H. L. Ragsdale James Davenport F. M. Shy
L. R. Gassaway George Briscoe D. M. McWaters
W. M. Newman R. B. Partain Silas Fennell
Richard Van Leer L. M. Smith V. A. Hale
G. F. Childers W. E. Middleton C. C. Piper
W. A. McDaniel C. R. Davenport T. R. Davenport
J. W. Davenport Joel M. Lucas
H. M. Godfrey came in on September 8 and asked for, and obtained, an extension
of time. He returned to work on September 17. K. Piper and Vernon M. Bishop
were sent letters inviting them to return to work on September 8 which they acknowl-
edged but otherwise ignored. Wynell Davis was offered employment on October 1
but did not report.
The issue for determination herein is whether the strikers had been permanently
replaced by the Georgia Tech students, at the time of their (the strikers) uncondi-
tional offers to return to work. If not, they were entitled to reemployment at that
time; otherwise they were not. As economic strikers 7 they were entitled to their
jobs provided they had not been replaced on a permanent basis. See Kansas Milling
Co. v. N.L.R.B., 185 F. 2d 413, and Gala-Mo Arts Inc., 113 NLRB 1.
The Georgia Tech students are Tech students who go to school for 3 months and
then work for 3 months. They were employed by Respondent during the strike
with the understanding that they would stay (with Respondent) only until the
school year started in September and that Respondent would obligate itself to keep
them that long.
The General Counsel contends that the Georgia Tech students were not permanent
replacements as those terms are used with respect to economic strikers. Respondent
argues to the contrary. A decision with respect to this matter seems to turn on the
balancing of the right of Respondent to replace the striking employees with others
in an effort to carry on its business against the rights of strikers to strike without
interference or impediment. In balancing these rights the Trial Examiner is im-
pressed with the lack of evidence tending to establish that Respondent hired the
,Georgia Tech students to break the strike. The evidence adduced is to the contrary,
namely that they were hired in order to continue business and that they were hired
for a definite term regardless of whether the strike ended before that date (the
opening of the school term in September). Under these circumstances the Trial
Examiner believes, finds, and concludes that Respondent was under no obligation
to discharge the replacements in order to make room for the strikers. See Olin
"G. B. Hood, W. L. Piper, J D. Leer, F. G Clay, and C. J. Dover were not offered
reemployment. The situation with respect to these employees will be discussed hereafter
T As noted above, the Trial Examiner believes, finds, and concludes that the strike was
not an unfair labor practice strike.
1614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mathieson Chemical Corporation v. N.L.R.B., 232 F. 2d 158 (affd. 362 U .S. 1020),
and N .L.R.B. v . California Date Growers Association , 259 F. 2d 587, 589-590.8
In view of the foregoing the Trial Examiner recommends that the allegations of
the complaint now under consideration be dismissed.
D. Strike misconduct
As noted earlier in this report , shortly after the Georgia Tech students left the
employment of Respondent to return to school Respondent offered reinstatement to
most of the striking employees but did not offer such to J. D . Leer, G. B. Hood,
F. G. Clay, C. J. Dover, or W. L. Piper. At the hearing before the Trial Examiner,
Respondent, for the first time, asserted that these individuals were not offered rein-
statement because they engaged in strike misconduct (participated in threats and
cursing against management officials and nonstriking employees).
1. J. D. Leer and G . B. Hood
On May 5, 1959, a melee, with a group of four or five individuals led by Leer
and Hood on one side and two nonstrikers ( J. L. Daniel and Paul Cotton) on the
other, occurred in the immediate vicinity of Respondent 's place of business in which
there was an exchange of name calling, cursing, and threats. In addition , during
this incident Leer addressed Respondent 's president ( Sims), who had been attracted
to the scene by the commotion created, and said to him "you God damned son-of-a-
bitch, if you will take those guards away from. you, I will get out there and get you
now and lam going to get you before the night is over if I burn tomorrow."
There is a dispute herein as to which group started these exchange of words and
a dispute as to whether Daniel and Cotton engaged in the conduct described above.
On the basis of analysis of the record , inherent probabilities and observations of
witnesses , the Trial Examiner believes and finds that Daniel and Cotton engaged in
the conduct attributed to them. The Trial Examiner believes it unnecessary to
decide herein which group started the exchange and makes no finding with respect
to this matter.
Respondent contends that Leer and Hood were refused reemployment because of
the aforementioned conduct and Hood for the additional reason that he had a criminal
record which did not become known to Respondent until the period of the strike.
The General Counsel does not seriously dispute that Leer and Hood engaged in,
the conduct attributed to them but argues that, nevertheless , Respondent con-
doned this misconduct since Respondent retained in its employ the nonstriking
employees involved in this incident and since Respondent did not raise misconduct
as a defense when it originally denied reinstatement to the strikers in July. On the
basis of Thayer, Inc. of Virginia, 125 NLRB 222 the Trial Examiner hereby rejects
this contention . Since the Trial Examiner has found that Respondent did not con-
done Leer and Hood 's conduct , the Trial Examiner believes and finds it unnecessary
to pass upon the issues raised concerning Hood's criminal record and makes no
findings with respect thereto.
In view of the foregoing the Trial Examiner recommends that the allegations of
the complaint now under consideration be dismissed.
2. F. G. Clay and C . J. Dover
On April 13, Clay and Dover went by the home of Mrs. Rufus Eubanks and Clay
asked the whereabouts of her husband ( a nonstriking employee of Respondent) and
remarked "he [Clay] wouldn 't have thought he [Rufus Eubanks] would have crossed
the picket line, to him [Clay], for one to cross the picket line was the same as
going into his house and raking the food off his table away from his children."
No threats were made and no profanity was used , although Clay appeared to be
"angry" because Rufus Eubanks had crossed the picket lines.
,R. M. Benefield, a nonstriking employee, testified that when, on or about April
16, the car he was riding in stopped at a traffic light another car, in which were
Clay and Dover and which had followed the Benefield car from Respondent 's plant,
"pulled up behind." Benefield further testified:
I got out of the car and started home, went on past their car and I didn't have
,no intentions of speaking to them or having anything to say to them, so I
just walked on by and they hollered out at me.
s But see Belcher Towing Company , 122 NLRB 1019 , and Brown Foreman Di8tillera
Corporation , 118 NLRB 454 , holding that school instructors and students working as
summer replacements are temporary employees and ineligible to vote in Board-conducted
elections.
LARKIN COILS, INCORPORATED 1615
Q. Who hollered at you?
A. Dover. Carl Dover.
Q. Who hollered what at you?
A. Well-
Q. Though there are ladies in the room, don't hesitate to use the exact words.
A. Well, I will just quote what he told me. He said, "Oh, you son-of-a-
bitches is going to be sorry that Larkin Coils ever existed." And then he
hollered something as he drove away but I couldn't understand what he said.
Q. Did he make any motion toward you?
A. He acted like he was going to start to open the car door but I walked
on up the street and didn't pay no more attention to him. I just walked on off.
Clay and Dover denied that any such thing occurred.
A resolution of this conflict need not be made herein because, assuming the facts
to be as stated by Benefield, neither this conduct nor the conduct at Mrs. Eubanks'
home (considered separately or together) is such heinous misconduct as to warrant
denial of reinstatement. See Efco Manufacturing Inc., 108 NLRB 245, 250, 261.
3. W. L. Piper
Respondent contends that Piper was not reinstated because, while walking the
picket line, he addressed Respondent's president (0. M. Sims) on one occasion,
"Oscar, you son-of-a-bitch" and on another occasion, "You, G. D. son-of-a-bitch,
Oscar." Sims so testified. Piper testified he said "Good morning, Oscar" and
denied that he used the language attributed to him. Sims' real name is "Oscar" but
he resents being called by this name and it was apparent while the testimony con-
cerning this matter developed at the hearing that he was concerned over the use of
this name rather than by the other words attributed to Piper. In any event, assum-
ing that Piper used the words attributed to him this was insufficient to warrant
Respondent's denial of reinstatement. See Efco Manufacturing Inc., supra.
E. Suspension of James M. Fair
Fair was one of the six employees reinstated shortly after the July 15 offer to
return to work. He returned to work on Thursday, July 30, 1959. That morning
a group of nonstriking employees became adamant in their refusal to work with
Fair, claiming that he had cursed them while he was walking the picket line. Quite
a commotion ensued. Shortly after noon Fair was suspended so that Respondent
could look into the matter. He was told to check back with Respondent on Monday,
August 3. On Monday, August 3, Fair returned to Respondent's place of business
and, after apologizing to the men for what he had done (while a picket) or what he
may have done (according to which witness is believed), returned to work.
Fair denied that he engaged in abusive conduct while a picket and the record
does not disclose affirmative evidence that he did.
Recognizing that an employer may not deny reinstatement to a striker because
of pressure brought to bear by nonstrikers, Respondent argues that the principle
involved in such cases is not applicable here since Fair had already been reinstated
and was back on the job and the suspension was to afford Respondent an oppor-
tunity to conduct an investigation into the situation. This seems to be a difference
with a distinction and is hereby rejected.
F. Surveillance
The only evidence with respect to this matter consists of testimony by R. I.
Robertson, a Southern Detective Agency guard at Respondent's plant.
Robertson testified that he was on duty at Respondent's plant on May 5, 1959, and
that he made reports of incidents that took place at the plant during the strike.
Respondent introduced into evidence the report (entitled "Daily Log and Register
Report") kept by the witness on May 5. On cross-examination Robertson was in-
terrogated about a notation in this report reading "at approx. 6:55 A Mr. Bartlett
met many or all strikers, on Loomis at Memorial Dr. Held a meeting," and testified
as follows:
Q. What is this meeting by-Mr. Bartlett held a meeting, were you observing
a meeting going on?
A. Yes, sir.
Q. What kind of meeting was it?
A. Well, they all congregated around his station wagon at the corner up
there and seemed apparently to be giving instructions , if I am not mistaken, at
that particular date they got some boxes of some kind.
1616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. How far was this meeting from where you were standing?
A. I would say 200 yards.
Q. Did you hear what was going on?
A. No, sir. Just the appearance of a meeting and he instructing the boys
that congregated around his station wagon.
Q. Where were you physically when you wrote this?
A. In the guard house.
Q. It was after you observed this meeting then you went back and wrote it
up?
A. Yes, sir. In fact, I was in the guard house at the front gate most of time
observing or carrying out my business, or I might have been in the parking
area in the back, or in the alley there, wherever I was I would immediately
return and make up my report.
Respondent contends that this is a far cry from the situation where an employer
deliberately attempts to learn the identity of employees affiliated with the Union or
deliberately attempts through surveillance to interfere with, restrain, or coerce
employees in the exercise of their rights guaranteed under the Act. The Trial
Examiner agrees.
In view of the foregoing, the Trial Examiner recommends that the allegations of
the complaint to the effect that Respondent unlawfully engaged in surveillance of
union meetings be dismissed.
IV. ULTIMATE FINDINGS AND CONCLUSIONS
In summary, the Trial Examiner finds and concludes:
1. The evidence adduced in these proceedings satisfies the Board's requirements
for the assertion of jurisdiction herein.
2. International Brotherhood of Firemen and Oilers, AFL-CIO, is a labor organi-
zation within the meaning of the Act.
3. The evidence adduced establishes that Respondent refused reinstatement to
striking employees F. G. Clay, C. J. Dover, and W. L. Piper and suspended employee
James M. Fair and thereby violated Section 8 (a) (1) and (3) of the Act.
4. The aforesaid activities are unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
5. The evidence adduced does not establish that Respondent refused to bargain
in violation of Section 8(a)(1) and (5) of the Act.
6. The evidence adduced does not establish that Respondent violated Section
8(a)(1) and (3) of the Act by refusing to reinstate striking employees H. L.
Ragsdale, L. R. Gassaway, W. M. Newman, Richard Van Leer, G. B. Hood, G. F.
Childers, W. A. McDaniel, J. W. Davenport, H. M. Godfrey, James Davenport,
George Briscoe, J. D. Leer, R. B. Partain, L. M. Smith, Vernon M. Bishop, W. E.
Middleton, C. R. Davenport, Joel M. Lucas, F. M. Shy, D. M. McWaters, Silas
Fennell, V. A. Hale, K. Piper, C. C. Piper, T. R. Davenport, and Wynell Davis.
7. The evidence adduced does not establish that Respondent engaged in surveil-
lance in violation of the Act.
[Recommendations omitted from publication.]
Mineweld Company, Division of Rasco, Inc. and Alfred Bradley.
Case No. 14-CA-2081. June 09, 1960
DECISION AND ORDER
On December 31, 1959, Trial Examiner Leo F. Lightner issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in any unfair labor practices and
recommending that the complaint be dismissed in its entirety, as set
forth in the copy of the Intermediate Report attached hereto. There-
after, the General Counsel filed exceptions to the Intermediate Report
and a brief in support thereof.
127 NLRB No. 187.