Lawson-United Feldspar & Mineral Co.

National Labor Relations Board - Board Decisions

Mar 26, 1971

189 N.L.R.B. 350 (N.L.R.B. 1971)

350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lawson-United Feldspar & Mineral Co. and United
Textile Workers of America, AFL-CIO. Cases
11-CA-3848 and 11-CA-3960
March 26, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
On August 7, 1970, Trial Examiner Alvin Lieber-
man issued his Decision in the above-entitled pro-
ceeding, finding that 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
attached Trial Examiner's Decision. He also found
that Respondent had not engaged in certain other
unfair labor practices alleged in the complaint.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board had delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, and the entire
record in the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner except as modified below.
The Trial Examiner found that the Respondent
violated Section 8(a)(5) of the Act by unilaterally
removing two soft drink vending machines from the
plant. We do not agree. Although this action was
taken without prior consulatation with the Union, the
record shows that the Respondent removed the
machines because there was a littering problem
involving the soft drink bottles, and there is no
showing that the removal of the machines had a real
impact on the employees or their working conditions.'
Furthermore, the Respondent warned the employees
in advance that the machines would be removed if the
littering continued, and there is no evidence that the
Union ever sought to bargain on this issue. Accord-
ingly, we conclude that the General Counsel has
failed to sustain the burden of proof in establishing
this as a violation, and we shall dismiss the complaint
in this respect.
I Cf. Weston and Brooker Company, 154 NLRB 747, 749, enfd . 373 F 2d
741 (CA 4), relied on by the Trial Examiner , wherein the employer's
closing of a canteen was not only unilateral in nature but resulted in the
abolishment of an employee 's job and the unlawful discharge of that
employee.
189 NLRB No. 43
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, Lawson-United Feldspar & Mineral
Co., Spruce Pine, North Carolina, its officers, agents,
successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order, with
the following modifications:
1. Delete paragraph 1(b) and redesignate para-
graph 1(c) as paragraph 1(b).
2. Delete paragraph 2(d) and redesignate para-
graphs 2(e) and 2(f) as paragraphs 2(d) and 2(e),
respectively.
3. In footnote 65 of the Trial Examiner's Decision,
substitute "20" for "10" days.
4. Substitute the attached Appendix for the Trial
Examiner's Appendix.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
AFTER A TRIAL IN WHICH ALL PARTIES HAD THE
OPPORTUNITY TO PRESENT THEIR EVIDENCE, THE
NATIONAL LABOR RELATIONS BORAD HAS FOUND THAT
WE VIOLATED THE LAW AND HAS ORDERED US TO POST
THIS NOTICE, AND WE INTEND TO CARRY OUT THE
ORDER OT THE BOARD AND ABIDE BY THE FOLLOWING:
WE WILL NOT discourage you from being or
becoming members of UNITED TEXTILE
WORKERS OF AMERICA or any other union.
WE WILL NOT discharge you if you go out on
strike against us. If we hire somebody to do your
work while you are on strike and at the end of the
strike you tell us that you want to come back to
work,
WE WILL give you back you job when the person
we hired in your place quits or is fired, unless you
have gotten the same kind of work elsewhere.
Because it was found that we did not do this after
the strike which was called in July 1969,
WE WILL offer to put all the replaced strikers
back to work at their old jobs and pay them for
any wages they lost becuase we did not put them
back to work when the persons we hired to take
their places stopped working for us.
WE WILL NOT in any way interfere with, restrain,
LAWSON-UNITED FELDSPAR 351
or coerce you in the exercise of any rights
quaranteed to you by the National Labor Rela-
tions Act. In this connection, WE WILL respect
your rights to self-organization, to form, join, or
assist any union, to bargain collectively through
any union or representative of your choice as to
wages, hours of work, and any other term or
condition of employment. you also have the right,
which WE WILL also respect, to refrain from doing
so.
LAWSON-UNITED
FELDSPAR & MINERAL
Co.
(Employer)
Dated By
(Representative) (Title)
We will notify immediately any striker whom we are
required to put back to work, if presently serving in
the Armed Forces of the United States, of the right to
full reinstatement, upon application after discharge
from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military
Training and Service Act.
This is an official notice and must not be altered,
defaced, or covered by any other material.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
office, 1624 Wachovia Bldg., 301 North Main St.,
Winston-Salem, North Carolina 27101, Telephone
919-723-9211, Ext. 360.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ALVIN LIEBERMAN, Trial Examiner: The trial in this
proceeding, with all parties represented, was held before me
in Marion, North Carolina, on several days between
December 17, 1969,1 and April 16, 1970, upon the General
Counsel's complaint,2 dated September 30, 1969, and
respondent's answer.3 In general, the issues litigated where
whether respondent violated Section 8(a)(l), (3), and (5) of
i All dates subsequently mentioned without stating a year fall within
1969
2 The complaint was issued on charges filed on January 14 and July 30,
1969, by United Textile Workers of America
3 During the trial the pleadings were amended in several respects Thus,
respecting the complaint , the following names and designations were added
to paragraph 6• Homer Silvers-Maintenance Foreman, Clyde Robertson-
Shift Foreman, James Thomas-Shift Foreman , and Quentin Buchanan-
Loading and Dry Mill Foreman . The following subparagraphs were added
to paragraph 7-
(c) Threatened an employee would be laid off because of his union
affiliation and activities Clyde Robertson -January 7, 1969.
(d) Interrogated an employee concerning his union sympathies
Dempsey Hopson-March 25, 1969
(e) Interrogated employees regarding their union membership,
the National Labor Relations Act, as as amended (herein
called the Act). Particularly, the questions for decision are
as follows:
1. Are four individuals in respondent's employ, Homer
Silvers, Clyde Robertson, James Thomas, and Quentin
Buchanan, supervisors within the meaning of the Act?
2. Did respondent violate Section 8(a)(1) of the Act by
interrogating, warning, and threatening employees?
3. Did respondent violate Section 8(a)(3) and (1) of the
Act by discharging three employees, Lee McBee, Gerald
Pittman, and Bobby Twiggs?
4. Did respondent violate Section 8(a)(3) and (1) of the
Act by not reinstating certain employees after a strike upon
an unconditional offer to return to work made on their
behalf?
5. Did respondent fail to bargain in good faith with
United Textile Workers of America (herein called the
Union), and thereby violate Section 8(a)(5) and (1) of the
Act?
6. Did respondent violate Section 8(a)(5) and (1) of the
Act by making unilateral changes affecting conditions of
employment of its employees?
Upon the entire record,4 upon my observation of the
witnesses and their demeanor while testifying, and upon
careful consideration of the arguments made and the brief 5
submitted by the General Counsels I make the following:
FINDINGS OF FACT 7
1. JURISDICTION
Respondent, a North Carolina corporation, is engaged at
Spruce Pine , North Caroline, in the mining , processing, and
sale of feldspar and other minerals. During the year ending
on September 30, 1969, a representative period, respondent
sold and shipped to customers located outside the State of
North Carolina minerals valued at more than $50,000.
Accordingly, I find that respondent is engaged in
commerce within the meaning of the Act and that the
assertion of jurisdiction over this matter by the National
Labor Relations Board (herein called the Board) is
warranted. Siemons Mailing Service, 122 NLRB 81, 85.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
activities, and desires. Quentin Buchanan -March 7, 1969
Finally, subparagraph (a) was deleted from paragraph 15, and the
following names were deleted from paragraph 19: Dude Buchanan, Pat
Howell , and Guy Stafford Insofar as the answer is concerned, paragraph 5
was amended to admit that portion of paragraph 16 of the complaint
starting with the word "on" and ending with the word "concertedly."
4 Issued simultaneously is a separate order correcting obvious
inadvertent errors in the stenographic transcript of this proceeding.
S Although all the arguments of the parties in support of their respective
positions and the authorities cited by them may not be discussed in this
Decision, each has been carefully weighed and studied
r Only the General Counsel submitted a brief.
7 Respondent's motions made at the conclusion of the trial , upon which
decisions were reserved , are disposed of in accordance with the findings
and conclusions set forth in this Decision
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES which contravened Section 8(a)(5); and that the strike was
economic in nature.
A. Introduction
Briefly,
occurred
this case concerns itself with events which
during, and after, the Union's campaign to
B.
1.
Preliminary Findings i i
Respondent's operations
become the collective-bargaining agent of respondent's
employees. These include, the complaint alleges, the
interrogation of, and warnings and threats to, employees of
respondent by its agents and supervisors; the discharge of
three employees; bargaining between respondent and
the Union; a strike followed by respondents failure to
reinstate certain strikers; and changes made by respondent
in its employees' working conditions.
The General Counsel contends8 that the persons whose
names were added to paragraph 6 of the complaint during
the trial are supervisors within the meaning of Section
2(11) of the Act and that respondent is responsible for their
acts and conduct; that respondent's interrogations, warn-
ings, and threats coerced and restrained employees in the
exercise of rights guaranteed in Section 7 and were,
therefore, violative of Section 8(a)(1); that the discharges
were discriminatory and discouraged membership in the
Union in violation of Section 8(a)(3); that respondent did
not bargain in good faith with the Union, thereby violating
Section 8(a)(5); that the strike was an unfair labor practice
strike; and that respondent's failure to reinstate all the
strikers was an additional violation of Section 8(a)(3).9
Concerning the nature of the strike, the General Counsel
argues, alternatively, that should it be concluded that it was
economic, respondent's failure to reinstate all the strikers
was, nevertheless, an unfair labor practice on the rationale
expressed by the Board in Laidlaw Corporation. 171 NLRB
No. 175.
Respondent has taken issue with the General Counsel on
all points.10 Thus, in its answer respondent flatly denied the
complaint's allegations as to its violations of Section 8(a)(l)
and (3) of the Act. Affirmatively, respondent asserts that
the persons whose status is in issue are not supervisors; that
cause existed for all the discharges and, moreover, it had no
knowledge that on the discharged employees was involved
with the Union; that it bargained in good faith with the
Union and made no changes in conditions of employment
8 Although represented, the Union's participation in the trial was not
extensive and it submitted no brief Accordingly, I will assume that its
contentions are similar to those of the General Counsel
9 In pertinent part the sections of the Act mentioned in this paragraph
provide.
Sec. 2 When used in this Act-
(11) The term "supervisor" means any individual having authority,
in the interest of the employer , to hire, transfer, suspend , lay off,
recall, promote , discharge , assign, reward , or discipline other
employees, or responsibly to direct them , or to adjust their grievances,
or effectively to recommend such action, if in connection with the
foregoing the exercise of such authority is not of a merely routine or
clerical nature, but requires the use of independent judgment.
Section 7, insofar as relevant , states
Sec 7 Employees shall have the right to self-organization, to
form , join, or assist labor organizations , to bargain collectively
through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collec tive bargaining or other
mutual aid or protection-
Sec 8 (a) It shall be an unfair labor practice for an employer-
(1) to interfere with, restrain , or coerce employees in the
The feldspar 12 and the other minerals in which
respondent deals are contained in granite which is taken
from a surface mine located on its premises. Upon removal
from the mine , the granite is reduced in size from large
blocks to a substance finer than sand. Among the machines
used to pulverize the granite is one called a crusher.
The material thus produced is placed in a mixing
machine where it is conditioned by chemical reagents.
From there it moves through a series of flotation chambers
containing a liquid consisting of water and additional
reagents whose function it is to separate the feldspar and
other minerals from the pulverized granite . At this point air
is pumped into these chambers for the purpose of forming
bubbles on which the liberated feldspar floats to the surface
of the liquid in the flotation chambers.
The feldspar is then skimmed off and fed into a dry mill
where it is dried and further purified. The pure feldspar is
then placed in storage bins and shipped, either in bulk or in
bags , to respondent's customers.
Periodically throughout the flotation and dry milling
processes, samples of the product are taken and sent to
respondent's laboratory for testing by technicians. The
purpose of this is to make certain that proper levels of
aluminum and iron are maintained.
Employees who operate the flotation equipment are
required, when necessary, to push stock into the chutes
through which the material is introduced into the flotation
chambers. This, apparently, is done physically.
As will appear more fully below, the Union struck
respondent in July 1969. Before the strike the work of
preparing the chemical reagents used in the mixing machine
and in the flotation chambers was performed by an
employee classified as a reagent man. Although not too
clear from the record, it appears that this employee did
nothing else.
exercise of the rights guaranteed in section 7,
(3) by discrimination in regard to hire or tenure of employment
. to encourage or discourage membership in any labor
organization
(5) To refuse to bargain collectively with representatives of his
employees
10 Having waived oral argument at the conclusion of the trial and not
having submitted a brief , respondent 's stand on the issues in this case is
gleaned from its answer, its opening statement , the evidence which it
adduced , and the various grounds on which it based its motions to dismiss
the complaint
11 The purpose of these findings is to furnish a frame of reference within
which to consider the facts relating to respondent's alleged unfair labor
practices and the conclusions to which they may give rise To the extent
that the contentions of the parties relate specifically to the findings made
here they will be treated here, although they may again be considered in
other contexts
12 Feldspar , respondent 's principal product, is composed chiefly of
aluminum silicate . Its main commercial use is in the manufacture of
porcelain
LAWSON-UNITED FELDSPAR 353
2. Some working conditions in respondent's plant
Respondent's continuous operation and Sunday work:
During January 1969 about 40 people, including clerks and
supervisors, worked for respondent. Its plant operates
around the clock, 7 days a week. The work is divided
among three shifts. The first shift starts at 7 a.m.; the
second, at 3 p.m.; and the third, at 11 p.m. Employees who
do not regularly work on Sundays, but who are scheduled
to work on a particular Sunday are informed of this during
the week immediately preceding the Sunday in question.
Shift trading, departing before being relieved, and leaving
working areas. Before November 1968 an employee who
did not work on a different shift to take over his work
during that day. Employees engaged in this practice, known
as shift trading or shift swapping, at will without consulting
with, or obtaining the approval of, supervisors. Also before
November 1968 employees were lax about remaining in
their working areas and some even left the plant without
authorization during their shifts.
These practices on the part of its employees were
troublesome to respondent. Accordingly, respondent,
during November 1968, posted two notices. The first i3
warned employees that their "practice" of "leaving their
working areas and the plant area during their shift . . . will
not be tolerated in the future." The other notice 14 informed
employees that "in the future there will be no trading of
shifts between individuals without prior approval of the two
appropriate Shift Supervisors involved." This notice also
stated that "in the future all personnel who are to be
relieved will not leave their working area until properly
relieved."
Job Posting: From time to time before the Union struck
respondent in July 1969 respondent posted notices of job
vacancies,15 and requested employees to indicate their
interest if they desired to be considered in filling the
vacancy. Consideration was given to employees who did so
on the basis of their capability, past performance, and
length of service, with no one factor being determinative.
Between August 1968 and the beginning of the strike
about a dozen job vacancy notices were posted. During the
same period about 50 jobs became vacant, some of which
were filled by people who had never before worked for
respondent.
Repairs: Special crews make repairs to machines. The
operators of the machines involved have always been
required to assist the repairmen. Employees are relived of
this duty, however, if they are incapable of performing it.
About five percent of the operators fall within this
category.s6
Vending Machines: Until August 22, 1969, there were two
soft drink vending machines in respondents plant. Employ-
ees patronizing them were careless in disposing of the
13 Respondent's Exhibit (Resp Exh ) 7
14 Resp Exh 6
15 One such notice is in evidence as Resp Exh 15
16 My findings as to repair work are based on evidence given by
Thomas Lawson and Monte Clark , respectively respondent 's president and
general manager I do not construe the testimony given by Rex McKinny,
a former employee of respondent, as being to the contrary McKinny
testified that before the strike he had never helped in repairing the dry
bottles the machines dispensed. As Clark testified in this
regard, "there were bottles all over the damn place."
On or about August 1 the employees were informed that,
if they persisted in littering the plant with the bottles, the
vending machines would be taken out. The warning was not
heeded and the machines were removed. This action was
taken without consulting the Union.
3. The representation case and the Union's
certification
Late in December 1968, or early in January 1969, the
Union began its campaign to become the collective-
bargaining reprsentative of respondent's employees. On
February 7, 1969, a hearing was held upon a petition
(11-RC-2$64) filed by the Union seeking certification as
their representative.
The only substantial issue litigated at the hearing was
whether four individuals, Homer Silvers, Clyde Robertson,
James Thomas, and Quentin Buchanan, should be included
in the unit which would ultimately be found to be
appropriate for collective-bargaining purposes. The Union
contended that they should be excluded as supervisors.
Respondent urged, nothwithstanding that each was called a
foreman, that they were without supervisory status and
should, therefore, be included.17
The Acting Regional Director for Region II (herein
called the Regional Director) concluded that the individu-
als concerned, whom he described as working foremen,
were not supervisors within the meaning of the Act.
Accordingly, he issued a Decision and Direction of
Election 18 in the following unit which he found to be
appropriate:
All production and maintenance employees, including
working foreman employed at the Emplyer's Spruce
Pine, North Carolina, feldspar mine and plant,
excluding all office employees, guards, professional
employees and supervisors as defined in the Act.
The election thus directed was held on March 26, 1969.
The Union prevailed and was certified on April 3 as the
exclusive collective-bargaining representative of respond-
ent's employees in the unit found by the Regional
Director to be appropriate for this purpose.
4. The strike and its nature
Soon after the Union's certification, as described above,
bargaining began. Between April 29, 1969, and July 16, 12
negotiating sessions were had. Notwithstanding this, no
agreement was reached on all the terms of a contract.
On July 20 respondent's employees, at a meeting
conducted by Eugene Heath, the Union's representative,
voted to strike. The strike started the following day and
ended on July 26.
The cause of the strike was respondent's refusal to accept
mills he operated . Assuming the truth of this testimony , McKinny fell
within that small group of employees not required to engage in repair
work
17 As has already been noted , whether the persons in question are
supervisors is also an issue in this proceeding.
19 The Decision and Direction of Election was issued on February 26,
1969, and is in evidence as Resp Exh 13
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union's contract proposals in several areas. As
acknowledged by D. S. Hall, the president of the Union's
plant committee, the Union "didn't get the contract [it]
wanted and . . . struck on account of it."
I have already noted that the General Counsel contends
that respondent did not bargain in good faith with the
Union and thereby violated Section 8(a)(5) of the Act. The
General Counsel further contends that the strike was
precipitated by respondent's foregoing asserted unfair labor
practices and was, therefore, an unfair labor practice strike.
I do not agree with the General Counsel's position
respecting the manner in which respondent bargained. It is
my conclusion, to be discussed subsequently in substantial
detail, that respondent bargained in good faith and without
engaging in unfair labor practices. It follows, therefore, that
the strike, an outgrowth of respondent's nonviolative
bargaining, was economic and not an unfair labor practice
strike. Cf. Bright Foods, Inc. 126 NLRB 553, 554.
Accordingly, I shall recommend that paragraph 17 of the
complaint be dismissed.
5. Changes in respondent's operations during the
strike
Upon the commencement of the strike respondnet
combined the work formerly done Hy an employee known
as a reagent man with that done by another person and
eliminated the work formerly done by an employee called a
crusher operator helper. Respondent continued to operate
in this manner after the strike.
The only evidence adduced as to whether respondent
bargained with the Union before effectuating these changes
appears in testimony given by Thomas Lawson, respon-
dent's president. He testified, in this regard, that he didn't
remember whether there was "discussion between [him ]
and the Union about whether [the jobs in question] should
be eliminated."
Thomas and Buchanan, the proof at the instant trial,
likewise absent from the representation hearing, shows that
the former once asked two employees to work overtime and
that the latter, on occasion, made the same request of
another employee. In my opinion these differences do not
dictate a conclusion contrary to that reached by the
Regional Director; namely, that the four individuals in
question are not supervisors.
Keeping time records, as Robertson does, is obviously a
routine clerical function and is, therefore, not indicative of
supervisory status. UTD Corporation, etc., 165 NLRB 346,
347; Security Guard Service, Inc., 154 NLRB 8, 10, 13, enfd.
284 F.2d 143 (C.A. 5). Nor does the fact that Robertson
trained employees in the operation of the dry mill establish
that he is a supervisor. Formco Incorporated 156 NLRB
1471, 1475-76.
Authority to direct employees to work overtime is not
clerical or routine in nature. As shown by the record,
however, the exercise of this authority by Thomas and
Buchanan was sporadic and rare, rather than regular and
frequest. This being the case, it cannot be said that Thomas
and Buchanan have been shown to be supervisors.
"Performance of isolated, infrequent duties of a supervisory
nature does not transform a rank and file employee into a
supervisor." Plastic Workers Union Local 18, etc. v. NLRB
369 F.2d 226, 230 (C.A. 7). To the same effect, see Pulley, et
al., etc. v. N. L. R. B., 395 F.2d 870, 875 (C.A.6).
Accordingly, I conclude, as did the Regional Director in
the representation case, that Silvers, Robertson, Thomas,
and Buchanan are not supervisors within the meaning of
the Act. I shall, therefore, recommend the dismissal of those
portions of paragraph 6 of the complaint which allege that
they are.
C. Facts Concerning Respondent 's Alleged
Independent Violations of Section 8(a)(1) of the Act20
6. The status of Homer Silvers , Clyde Robertson,
James Thomas, and Quentin Buchanan
The status of Silvers, Robertson, Thomas, and Buchanan,
who, in the representation proceeding, were found to be
without supervisory standing, was relitigated at the trial in
this proceeding.19 The evidence adduced on this issue was,
however, largely cumulative of the proof submitted at the
representation hearing.
Nevertheless, in several narrow areas the record in the
instant case differed from that made in the representation
matter. Thus, concerning Robertson, there was evidence in
this proceeding, absent from the representation case, that
he keeps the time records of the employees who worked on
his shift and also trains dry mill operators,. Respecting
19 Relitigation was permitted on the authority of Amalgamated Clothing
Workers of America, AFL-CIO v N L R B, 365 F.2d 898, 904-905
(C A D C ), which was followed by the Board in several subsequent cases,
including Farm Fans, Inc, 174 NLRB No 105, Suburban Homes
Corporation, 173 NLRB No 80, and Stanley Air Tools, etc, 171 NLRB No
48 In this connection , "the findings of the Regional Director [were]
accorded 'persuasive relevance,"' as suggested by the court in Amalgamated
Clothing Workers
20 The complaint alleges that respondent violated Section 8(a)(1) by the
acts of several people, including Robertson and Buchanan Having
As already noted, the representation election was held on
March 26, 1969. Following the election, D. S. Hall, who was
then employed by respondent, became the president of the
union committee which was formed in respondent's plant.
As will be more fully set forth below, several employees,
including Hall, were not reinstated after participating in the
Union's strike against respondent.
On two occasions in March, Hall and Dempsey Hopson,
respondent's superintendent, talked about the Union and
the forthcoming election. Hall testified that during the first
conversation which took place about 3 weeks before the
election Hopson asked him how he "felt about" the Union
and whether he "thought the Union would go in." Hall
further testified that after telling Hopson he was "for" the
Union and that he thought the Union would be voted "in"
concluded that Robertson and Buchanan are not supervisors , respondent is
not answerable for what they did or said. Liberty Sportswear Co, Inc, 183
NLRB No 127 Even had I come to a contrary conclusion , their having
been included in the unit for which the Union was certified as the
collective-bargaining representative precludes a finding, based on their
activity, that respondent violated Section 8 (a)(1) of the Act Montgomery
Ward & Co, Incorporated 115 NLRB 645, 647-6648, enfd 242 F.2d 497
(C A 2) Findings concerning their conduct are, therefore , unnecessary and
will not be made
LAWSON-UNITED FELDSPAR 355
Hopson said that he would "try to shake the men up before
the election."
About 10 days later, still before the election, Hall and
Hopson again spoke to each other about the Union. Hall
stated that at this time Hopson asked him if "he still felt the
same about the Union" and that he replied, in essence, that
his attitude hadn't changed.
Hopson, respondent's superintendent, admitted that he
and Hall discussed the Union, but denied questioning Hall
about his feelings concerning it. In this connection, Hopson
testified that Hall was not "backward about saying
anything about his feelings toward the Union," and that
Hall told him without being asked how he felt about the
Union. Hopson also denied telling Hall that he would
"shake up" the employees.
Hopson's testimony appeared to be forthrightly given.
Hall, on the other hand, appeared to be testifying in this
regard out of vindictiveness toward respondent, perhaps
because he was not reinstated after the strike. Accordingly,
I credit Hopson rather than Hall. I find, therefore, that
Hopson did not interrogate Hall concerning his union
membership, activities, desires, or sympathies, as the
complaint alleges, nor did he threaten reprisals against
employees who favored the Union.
During the days preceeding the election Hall also spoke
to Thomas Lawson, respondent's president, about the
Union. During this conversation, as Hall testified without
contradiction, Lawson said to Hall, "I believe you're
making a mistake of [sic ] going along with the Union."
D. Contentions and Concluding Findings Concerning
Respondent's Alleged Independent Violations of
Section 8(a)(1) of the Act
It having been found that Robertson and Buchanan are
not supervisors, respondent is not responsible for their
conduct alleged in the complaint as being violative of
Section 8(a)(1) of the Act. It has also been found that
Hopson, respondent's superintendent, did not interrogate
Hall. Accordingly, the sole remaimng issue, insofar as this
phase of the case is concerned, is whether the statement of
Lawson, respondent's president, comes within the purview
of Section 8(a)(l) of the Act. The General Counsel's
position is that it does. I do not agree.
Lawson's remark to Hall was simply that it was his belief
that Hall was making a mistake in supporting the Union.
Lawson's observation was not embellished by a threat of
reprisal or a promise of benefit, nor was it made in a
context of unfair labor practices.21 This being so, I find that
Lawson's comment fell squarely within the privilege
afforded by Section 8(c) of the Act.22 Cf. Greensboro
Hosiery Mills, Inc., 162 NLRB 1275, 1276, 1278-79,
enforcement denied on grounds not here material , 398 F.2d
414 (C.A. 4).
Accordingly, I conclude that respondent did not engage
in unfair labor practices within the meaning of Section
8(a)(1) of the Act. I shall, therefore , recommend that
paragraph 7, in its entirety, and the relating portions of
paragraph 21, of the complaint be dismissed.
E. Facts Concerning Respondent's Alleged Violations
of Section 8(a)(3) of the Act by Discharging
Employees
1. Lee McBee
Lee McBee was hired by respondent in 1966 and worked
as a flotation operator. On Monday, January 13, 1969,
McBee, D. S. Hall, Clyde Robertson, respondent's
foreman, and Monte Clark, respondent's general manager,
engaged in an acrimonious discussion relating to the
number of hours McBee and Hall worked the previous day.
During its course McBee stated, as Clark testified, "I'm a
flotation operator and I'm not going to do any damn thing
else. I'm not going to go out and push a stockpile .. .
[Robertson] can push a stockpile . . . but I'm going to run
the flotation mill." 23 Construing this statement as being
insubordinate in nature, Clark recommended McBee's
discharge.
On January 18, the end of the week in which the
foregoing events occurred, McBee was discharged. In the
separation notice given by respondent to McBee the reason
for the termination of his employment was stated to be
"Discharged for misconduct ... Insubordination to
Foreman." 24
About 3 weeks before his discharge McBee asked a
friend, Ernest Jarret, to speak to Eugene Heath, a
representative of the Union, and to furnish him with a
supply of union cards. In compliance with this request
Janet came to respondent's premises and outside its plant
gave McBee about 30 cards.25
Some of the cards thus received by McBee were
distributed by him to other employees on respondent's
parking lot as they entered and left the plant between shifts.
Although about 10 cards which McBee handed out were
signed and returned to him, no evidence was offered as to
when this occurred. The executed cards as well as those
which were not distributed were turned over to Heath at a
meeting which was held away from respondent's premises.
Some days before his discharge McBee received a letter
from the Union informing him, among other things, that he
had been accepted into membership, and that Heath, the
Union's representative, would soon meet with respondent's
employees. Upon receipt of this letter McBee took it to the
plant and showed it to several employees.26
21 Although , as will appear below, I find that respondent did engage in
unfair labor practices, these took place after the strike in July ; whereas, the
conversation between Hall and Lawson , here under consideration,
occurred in March , several months earlier.
22 Insofar as material Section 8(c) provides that " the expressing of any
views, argument , or opinion . shall not constitute or be evidence of an
unfair labor practice under any of the provisions of this Act, if such
expression contains no threat of reprisal or force or promise of benefit"
23 Flotation operators, it will be remembered, are required to push stock
into the chutes leading to the flotation chambers.
24 This notice was received in evidence as G.C . Exh. 8.
25 The findings in this paragraph are based on McBee 's testimony
McBee may also have received cards inside the plant . However, the
evidence as to this, also given by McBee , is contradictory and the details as
he recounted them are not clear Accordingly, a definitive finding as to this
is not warranted
26 The findings in this paragraph are based on testimony given by
McBee McBee testified also that after showing the letter to the employees
(Continued)
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At about the time McBee started to distribute the union
cards, he sought advice on this subject from Quentin
Buchanan,27 who on a previous occasion assisted the Union
in its efforts to become the collective-bargaining represent-
ative of respondent's employees. As related by McBee,
Buchanan counseled him "to keep quiet about it" and not
to "let anybody know about it" until "all the men signed
up." As McBee further testified, he "followed Quentin
Buchanan's suggestion . . . to the extent of keeping [his
activity in support of the Union] away from boss men."
2. Gerald Pittman and Bobby Twiggs
Gerald Pittman and Bobby Twiggs, both young men and
close friends, were employed by respondent until March 10,
1969. Pittman worked as a laboratory technician and
Twiggs was a dry mill operator. In the month in which their
employment was terminated both worked on the second
shift. Pittman's father, also a laboratory technician, worked
on the first shift.
Pittman frequently left the plant on matters unrelated to
respondent's business without obtaining permission to do
so. For this reason he received a written reprimand on
February 7.28
During the latter part of February or early in March two
girls came to the plant to see Pittman and Twiggs. Upon the
girls' arrival Pittman and Twiggs left their work and spent a
substantial period of time with them on the plant's parking
lot. When Pittman and Twiggs went back to work they were
told not to have girls visit them on the job. Nevertheless, the
girls returned the next night and again Pittman and Twiggs
spent a considerable amount of time with them.29
Although Pittman and Twiggs were both scheduled to
work on Sunday, March 9, neither did so. Instead, they
attended an automobile race at Rockingham, North
Carolina, a distant city.
On Saturday, March 8, Pittman left the plant earlier than
usual. Before he did, he was specifically reminded that he
was expected to work the next day 30
In expectation of his absence from the plant on Sunday,
March 9, Twiggs arranged with Rex McKinny, a dry mill
operator on the first shift, to work in his place. In clearing
this "shift swap" with Quentin Buchanan, his foreman,
Buchanan stated, as Twiggs testified, that he "didn't give a
damn who worked, just as long as somebody was there."
The other foreman involved in the "swap", whose approval
he lost it and found it the next day in the room in which respondent keeps
its flotation records While it is possible that this occurred, the probabilities
so militate against its having happened that I hesitate to find that it did
Furthermore, McBee's story about the loss of the letter and its recovery in
respondent's record room seems to be too pat when viewed in the light of
respondent's contention that it lacked knowledge that McBee was an
adherent of the Union. Moreover , and this is an important factor in my
determination to reject McBee's testimony in this regard, in his pretrial
affidavit McBee described the receipt of the letter and his having shown it
to some employees, but he did not mention , as he admitted , its having been
lost and found
27 As will be recalled, both the Regional Director and I concluded that
Buchanan is not a supervisor
28 G C Exh 4.
29 The findings in this paragraph are based on testimony given by
Robertson , one of respondent 's who appeared in all respects to be a
credible witness Pittman admitted one visit by the girls . Concerning their
coming the second time, as Robertson testified, Pittman , after first denying
that they did, stated that he did not remember , but did not think that they
should also have been obtained in accordance with
respondent's rules relating to "shift swapping"31 does not
appear to have been consulted.
McKinny worked in Twiggs' place on March 9, but not
for the entire shift. About 9 p.m., 2 hours before the shift's
end, McK.inny shut down the dry mill and went home. The
mill remained down for the balance of the shift.32
Lawson, respondent's president, and Clark discussed the
absence of Pittman and Twiggs from the plant on March 9.
Their decision was, as Clark testified, that "we'd put up
with them long enough and we was going to fire them."
When Pittman and Twiggs came to the plant at the start
of the second shift on Monday, March 10, they were
discharged by Lawson. In doing so, Lawson told them that
if they didn't want to, or couldn't, work on Sunday they
would not be needed any longer.
Before their discharge Pittman and Twiggs actively
supported the Union. Pittman attended about six meetings
and prepared about seven cards for employees to sign.
Twiggs' assistance to the Umon consisted of signing a card
and talking to employees for the purpose of persuading
them to sign cards and to vote for the Union at the
forthcoming representation election. In this connection,
during the trial respondent conceded that it had knowledge
that Pittman and Twiggs were adherents of the Union.
F. Contentions and Concluding Findings Concerning
Respondent's Alleged Violations of Section 8(a)(3) of
the Act by Discharging Employees
Lee McBee: Respondent asserts that it had no knowledge
before McBee's discharge that he supported the Union.
Accordingly, it contends that it cannot be held to have
violated Section 8(a)(3) of the Act by reason of his
dismissal.
"[K]nowledge such as Respondent claims it did not have
is a necessary ingredient of a violation of Section 8(a)(3) of
the Act and must be shown to have existed before an unfair
labor practice within the meaning of that section can be
said to have occurred." Pembek Oil Corporation, 165 NLRB
367, 373, enfd. in this regard 404 F.2d 105 (C.A. 2). The
General Counsel argues that this "necessary ingredient"
has been supplied by evidence showing, he claims, that
Quentin Buchanan and Clyde Robertson knew of McBee's
activities in support of the Umon. Alternatively the General
Counsel contends that an inference arises , based on the
came more than once. Twiggs was likewise unsure of how many times the
girls were at the plant . In view of the uncertainty expressed by Pittman and
Twiggs, I credit Robertson.
w This finding is based on testimony given by Robertson. Pittman
denied being told by anyone to be at work on Sunday, March 9.
Nevertheless, Pittman testified that while he and Twiggs were en route to
Rockingham, a trip on which they started after Il p.m. on Saturday,
March 8 , he telephoned his mother to arrange with his father to "fill in" for
him "if [he ] had to work" on Sunday , March 9 . It seems improbable that
Pittman would have disturbed his mother by a telephone call very late at
night or very early in the morning , as the case must have been, or that
Pittman should have made such a call at all, if, as he maintained on the
witness stand, he had not been told by anyone to work on the Sunday in
question Accordingly , I do not credit Pittman's testimony in this regard.
3i See Resp . Exh. 6.
32 Clark, respondent's general manager, testified in essence that
McKinny was not discharged for shutting down the null and leaving the
plant early because it was Twiggs' responsibility to make certain that his
shift was covered , not McKinny's.
LAWSON-UNITED FELDSPAR 357
small work force in respondent's plant, that respondent had
the knowledge that it says it lacked 33
I have concluded that Buchanan and Robertson are not
supervisors. Accordingly, on well-settled principles, what-
ever knowledge they acquired by McBee's involvement
with the Union cannot be attributed to respondent.
In the circumstances present here the General Counsel's
reliance on the small plant doctrine to charge respondent
with knowledge that McBee was an adherent of the Union
is equally without merit . This is made plain by the following
discerning analysis of this doctrine appearing in N.L.R.B. v.
Joseph Antell, Inc.; N.L.R.B. v. Malone Knitting Company,
358 F.2d 880, 882-883 (C.A. 1):34
Actually, the term small plant doctrine is quite
misleading . The smallness of the plant, or staff, may be
material, but only to the extent that it may be shown to
have made it likely that the employer had observed the
activity in question . Cf. N.L.R.B. v. Abbott Worsted
Mills, supra, 127 F.2d at 439 ("common talk in the
mill"). This can have no application to an off-hour, off-
the-premises, meeting, which was all that was proved in
Antell. . . . To apply a small plant rule in such
circumstances would in effect put an entirely arbitrary
burden on operators of small establishments.
s s s
In Malone Knitting Company, the employee's activity
took place openly in the plant, during business hours.
Standing alone, since there was no affirmative evei-
dence that management saw her, this might still be a
weak and insufficient basis to infer knowledge.
However, unlike Antell, where there was not even a
possibility of observation, and therefore not even a
weak basis for an inference which could be reinforced,
here there was at least a possibility which might be
thought sufficient if there was other, affirmative,
evidence indicating the likelihood that the employer in
fact knew.
Here, as in Antell, the evidence shows that McBee's
activity in support of the Union took place, for the most
part, outside the plant during nonworking time. Thus, he
obtained union cards from his friend, Jarret, on the parking
lot and there distributed them to employees between shifts.
Also, the signed cards which he received from employees he
turned over to Heath, the Union's representative, at a
meeting held away from respondent's premises.
Whatever McBee did inside the plant to further the
Union, for example, his showing to several employees the
letter he received from the Union, was done clandestinely.
By his own admission , McBee was careful to keep his union
activity "away from boss men." McBee's inplant assistance
to the Union not having been openly engaged in, it is not
33 The proposition thus advanced by the General Counsel is commonly
known as the small plant doctrine and will be so referred to in this
Decision This doctrine seems to have had its genessis in N L R.B v Abbott
Worsted Mills, Inc, 127 F.2d 438, 440 (C A 1), where the court stated that
"in a small plant . it is a reasonable inference that the information
[concerning an employee 's organization activities ] came to the notice of
management officials" However, as will be shown below, this
inference is not absolute
34 These cases were separately argued , but combined for decision
because the issue in both was the applicability of the small plant doctrine
"likely," as was pointed out in Antell," that the employer
had observed the activity in question."
Accordingly, it cannot be inferred on the basis of the
small plant doctrine that respondent had knowledge before
McBee was discharged that he supported the Union. This
being so, and respondent's requisite knowledge of this fact
not having been shown by other probative evidence, I find
that it has not been established that McBee's discharge was
violative of Section 8(a)(3) of the Act.
Pittman and Twiggs: The discharge of Pittman and
Twiggs, also claimed by the General Counsel to have been
violative of Section 8(a)(3) of the Act, does not present a
question of knowledge of union activity as did McBee's.35
Instead it involves a vexatiously close question of motive
and pretext.
Absent an unlawful motive an employer's business
judgment in discharging an employee, regardless of
whether the employee's conduct warranted discharge,
cannot be questioned . "Management can discharge for
good cause , or bad cause , or no cause at all. It has, as the
master of its own business affairs , complete freedom with
but one specific, definite qualification: it may not discharge
where the real motivating purpose is to do that which
Section 8(a)(3) forbids." N.LR.B. v. McGahey, et al., etc.,
233 F.2d 406,413 (C.A. 5).
Seemingly , respondent was given cause to discharge
Pittman and Twiggs. Pittman, as I have found, knew he was
to work on Sunday, March 9. Nevertheless, he did not do
so, nor did he, as respondent's rule requires in such cases,
arrange before he left on March 8 for someone to do the
work on the Sunday in question which he was scheduled to
do.
Twiggs, who was also scheduled to work on Sunday,
March 9, made an arrangement, although not in strict
accordance with respondent's rule,36 for another employee
to fill in for him while he, accompanied by Pittman, went
off to see an automobile race . Twiggs ' arrangement,
however, was abortive. His substitute quit in midshift.
I find , therefore , that respondent 's asserted reason for
dismissing Pittman and Twiggs; namely , their having failed
to work on the Sunday in question, unlike the explanation
for a discharge offered by an employer in another case,37
does not "[fail] to stand under scrutiny." However, the
existence of a factual basis for the discharge of Pittman and
Twiggs does not end the inquiry. What must further be
determined is whether this factual basis was seized upon by
respondent as a pretext to rid itself of two employees
because they were protagonists of the Union. If this was the
real reason for the termination of their employment , it goes
without saying that respondent violated Section 8(a)(3) of
the Act . See, e .g., Memcor, Inc. Etc., 162 NLRB 930, 931,
940.
In my opinion, notwithstanding the closeness of the
Although the plant in each case was small , the court, emphasizing that the
doctrine is not preemptory , rejected it in one situation , Antell, and applied
it in the other , Malone
35 During the trial respondent conceded that it had knowledge that
Pittman and Twiggs were adherents of the Union.
36 Respondent 's rule (Resp Exh . 6) provides that "trading of shifts"
requires the "prior approval of the two appropriate Shift Supervisors
involved " Nevertheless, from all that the evidence shows, Twiggs secured
the approval of only one of the two shift supervisors involved
37 N LR.N v Dant. et a!, 207 F 2d 165,167 (C A 9)
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
question, this is not the situation here. Had respondent
been looking for an excuse to mask its discharge of Pittman
and Twiggs for their union activity, it would not have had
to wait until March 10. In Pittman's case such an
opportunity could have been availed of more than a month
earlier when he was given a written reprimand38 for leaving
the plant without permission during working hours.
Concerning Pittman and Twiggs jointly, an opportunity of
this nature presented itself by their conduct when they were
visited by girls on successive nights during the latter part of
February or the fore part of March.
"An unlawful purpose is not lightly to be inferred. In the
choice between lawful and unlawful motives, the record
taken as a whole must present a substantial basis of
believable evidence pointing toward the unlawful one."
N.L.R.B. v. McGahey, et al., etc., 233 F.2d 406,413 (C.A. 5).
Upon careful analysis such a "substantial basis" is not
present here. Accordingly, on balance, giving due regard to
the closeness of the question, and taking into account the
record as a whole insofar as it relates to Pittman and
Twiggs, I find that their discharge has not been shown to
have fallen within the ambit of Section 8(a)(3) of the Act.
In sum , upon consideration of the entire record, I
conclude that the General Counsel has not sustained his
burden of proving by a preponderance of the evidence that
respondent engaged in unfair labor practices by discharg-
ing McBee, Pittman, and Twiggs. I shall, therefore,
recommend that paragraph 9 and the relating portions of
paragraphs 21 and 22 of the complaint be dismissed.
G. Facts Concerning Respondent's Alleged Violation
of Section 8(a)(5) of the Act by the Manner in
which it Bargained with the Union
About a month after the Union's certification the Union
and respondent began to bargain with each other. Before
the strike, which started on July 21 and continued until July
26, the parties met for the purposes of bargaining 12 times.
Most of these meetings occurred at weekly intervals and
two were held on successive days. After the strike there
were two additional meetings.
At the first session, which was held on April 29, 1969, the
Union presented its proposed contract.39 Respondent
offered its first counterproposal 40 on June 5, the date of the
sixth meeting. On July 2, during the 10th meeting,
respondent submitted an amended counterproposal41
dealing only with arbitration, strikes, and lockouts.
Despite the many meetings before the strike and the two
after the strike the parties never agreed on all the terms of a
collective-bargaining contract. There was agreement,
however, on many matters which are usually found in such
contracts. These took the form of coincidence of language
appearing in the Union's proposal and in respondent's
counterproposal or of express acceptance by one party of
an offer made by the other.
Thus, the parties were in accord in the following respects:
1. The recognition provision and the relationship
between the Union and respondent, except with respect to
a" Significantly, the complaint does not allege , nor does the General
Counsel contend, that the issuance of the reprimand[ constituted an unfair
labor practice
sa G C Exh 9
the deduction from the wages of respondent's employees of
union dues (hereinafter referred to as checkoff) and their
remission to the Union, which will be discussed below in
substantial detail.
2. The payment of twice an employee's regular rate for
work performed after 48 hours.
3. The payment of one and a half times an employee's
regular rate for work performed on Sundays. Respondent
also offered to pay twice the regular rate for Sunday work,
but there was no agreement as to this.
4. The equal division of overtime work among available
employees.
5. The manner of scheduling Sunday work.
6. The amount of reporting pay. The Union's proposal
in this regard provided that an employee who reported for
work 'without being told not to do so should receive an
amount equal to wages for at least 4 hours, whether or not
he actually worked for that period of time. This matter was
first discussed at the meeting held on May 27, at which time
respondent agreed with the Union's proposal "in
principle. " 42 However, respondent "objected to being
required to pay reporting pay to people who don't have
phones" through which medium they could be told "that
they weren't wanted at work." When the subject was again
discussed five meetings later, on June 24, respondent
withdrew the objection it had previously raised and
suggested, instead, that the provision should not be
applicable when "acts of God" prevented the plant's
operation. The Union agreed to this.
7. The amount which should be paid to injured
employees.
8. The furnishing of lunches by respondent to employ-
ees required to work overtime or when called to work
during emergencies. With relation to overtime work, the
Union's proposal stated that lunches should be provided
for "employees who work more than 3 hours beyond their
scheduled shift." At first respondent felt that 3 hours was
too short a time for this purpose. However, after some
discussion respondent agreed to the Union's proposal.
9. The amount of call-in pay. There were divergent
offers on this subject. The Union's proposal provided that
an employee called in to work after the completion of his
regular shift should be paid for a minimum of 4 hours of
work. Respondent's counterproposal limited the guarantee
to a minimum of 2 hours. Ultimately respondent agreed to
the Union's proposal.
10. The manner of establishing wage rates for new jobs.
11. The wages to be paid to an employee temporarily
transferred to a job for which there was a lower rate than
that which he regularly received.
12. The wages to be paid to an employee temporarily
promoted to a job for which there was a higher rate than
that which he regularly received. Promotion is also
mentioned in the Union's proposal dealing with job
posting. The Union's position as to this was that it "wanted
to participate in the decision of whether an employee was
qualified for a promotion or transfer . . . under the job
40 G C Exh 10
41 GCExh 11
42 Unless otherwise noted, all quotations appearing in this section are
taken from testimony given by Eugene Heath , the Union 's chief negotiator
LAWSON-UNITED FELDSPAR 359
posting [proposal]." On the other hand, respondent "said
[it] felt that . . . being there with the employees [it was] in a
better position to judge who was qualified and who was
not." Whether any agreement was ever reached as to this is
unclear from the evidence . In this regard, Heath, the
Union 's chief negotiator , stated at one point in his
testimony that he was "not sure if we did [agree ] or not";
and, in another, that he didn't "think we ever reached an
agreement on job-posting."
13. The payment by respondent, should it desire to do
so, of wages at a rate greater than usual to exceptionally
skilled and able employees.
14. The manner of computing seniority.
15. The termination of seniority upon an employee's
resignation or discharge for cause . In this regard , respon-
dent's counterproposal provided that seniority would also
be broken upon an employee's "absence without notice or
excuse for a continuous period of . . . two (2) working
days." The Union objected to this and suggested that the
period be enlarged to 3 days. Respondent acquiesced,
changed its proposal and it was agreed upon in its amended
form.
16. The procedure with respect to layoffs and recalls,
the extent to which seniority would be taken into account in
such cases, and the giving of preference to laid-off
employees in fillingjobs which became vacant.
17. The length of the probationary period. The
proposals the parties submitted varied as to this; the
Union's provided for 30 days and respondent's for 60 days.
Upon the Union' s suggestion the parties compromised their
differences and agreed to 45 days.
18. The procedure governing the return to the bargain-
ing unit of employees who had been promoted to
supervisory positions upon the elimination of such
positions.
19. The grievance procedure and its applicability to an
employee who, in the Union's belief, was unjustly
disciplined.
20. The extent to which foremen could perform work
normally done by employees.
21. The furnishing of bulletin boards for the posting of
union meeting notices.
22. Paid vacations up to a period of 2 weeks. The
Union's proposal made provision for a third week of
vacation for employees with 10 years of service. Although
respondent's counterproposal was silent with respect to
vacations beyond 2 weeks, during the bargaining it offered
to provide additional vacation time, up to 3 weeks, on a
graduated scale to employees who had worked for more
than 10 years. The Union rejected this offer.
23. The payment of a day's wages to employees not
scheduled to work on a holiday. Additionally, it was agreed
that where a holiday fell on a Sunday the following
Monday would be considered as being a holiday.
24. The manner of the contract's renewal.
At no time during the bargaining did the parties discuss
wage scales. It is also the case that notwithstanding the
many areas in which agreement had been reached, as noted
above, there were several matters on which the parties were
apart. Among them were management rights, arbitration,
strikes and lockouts, and checkoff. These were the issues
upon which bargaining foundered. Accordingly, they will
be discussed in some detail.
Management Rights: The Union's proposal in this respect
merely conceded respondent's "rights and prerogatives" to
manage and operate its business " which it would by law
have in the absence of this Agreement" It also prohibited
respondent from "contract[ing] or sub-contract[ing] any of
the jobs in the bargaining unit without the concent [sic] of
the Union."
Respondent 's counterproposal spelled out in detail many
rights and prerogatives it could exercise, the only limitation
being "a specific express provision of this Agreement." It
also stated that respondent would retain "the right to hire,
suspend , discharge, discipline for just cause , transfer, and
the right to relieve employees from duty because of lack of
work or other legitimate reasons ." Respondent 's proposal
was silent on the subject of contracting.
During the course of at least three meetings each side
sought to persuade the other to adopt its proposal. Neither
was successful.
While this subject was under discussion respondent
informed the Union that its proposed management rights
provision was copied from a collective-bargaining contract
between the Union and another employer. Acknowledging
this, Heath, the Union's chief negotiator , said that the
Union had an oral side agreement on the matter with the
other employer. At respondent's request Heath undertook
to reduce this oral agreement to writing and present it to
respondent. However, he never did so.
Arbitration; Strikes and Lockouts: The Union's position
on these subjects was set forth in its proposal. It was there
recited that "there will be no strikes, slow-downs or any
other curtailment of production by the employees or any
lockout by the Company"; that "any grievance not
satisfactorily resolved" might be submitted to an arbitrator;
and that "the arbitrator's award . . . shall be final and
binding upon both parties."
Like the Union's proposal respondent's first counterpro-
posal contained "no strike" and "no lockout" provisions.
However, unlike the Union's, it did not provide for the
arbitration of grievances.
Until the meeting held on July 2 respondent was adamant
in its rejection of the Union's proposal on arbitration. With
equal obduracy it insisted on the Union's being deprived of
its right to strike over grievances not settled to its
satisfaction.
Respondent's pre-July 2 position was summarized by
Branch Lawson, respondent's vice president, who stated at
the June 11 meeting that respondent "had no intention of
letting an arbitrator tell [it] what [it] could and could not do
in the plant ." At the same time he suggested that such
matters as the Union felt should be submitted to arbitration
be litigated in the courts . Respondent 's position, thus
stated , was substantially reiterated at the following two
meetings which took place on June 17 and June 24.
On July 2, however, there was a marked change in
respondent's stand on arbitration and strikes. On that day
respondent submitted an amended counterproposal. In
pertinent part this stated that upon agreement of the parties
,.any grievance not satisfactorily settled ... shall be
submitted to arbitration"; and that "if the Union proposes
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arbitration [of ] a specific grievance and the Company does
not [agree] within five (5) days" the Union could strike
provided it gave respondent written notice of its intention
to do so and provided, further, that the strike should not
begin until the expiration of at least 30 days following the
giving of such notice.
After discussion, respondent's amended counterproposal
was rejected by the Union for two reasons. The first was
that it did not stipulate that "if either party requested
arbitration, the other party would have to go." The second
was that it did not state that where arbitration had been
availed of the resulting award would be final and binding.
Checkoff: The parties took opposite positions on
checkoff. It was provided for in the Union's proposal and
absent from respondent's counterproposal. In this regard, it
was stated in the former that respondent "shall deduct [and
remit to the Union ] the regular monthly dues from the
wages of such employees who have authorized such
deductions voluntarily in writing."
Much discussion was devoted to this subject at many
meetings . However, neither party was willing to yield
although, as will be seen , respondent offered the Union an
alternative means of collecting dues within its plant which
was not accepted.
Respondent's explanation for opposing checkoff, as
stated during the bargaining, was that its experience with
wage deductions 43 had shown that employees were
interested only in the amount of money they were able to
put in their pockets; that even where employees authorized
deductions from their wages there was a tendency on their
part "to forget where his extra money went"; 44 and that in
any event employees were concerned with, and gave
respondent credit for, only what appeared in their
paychecks.
Notwithstanding respondent's objection to checkoff, as
bargaining on this subject progressed respondent offered to
facilitate the collection of dues by the Union in another
manner. It offered to permit the Union to set up a table in
the plant for this purpose. However, this proposal was
rejected by the Union.
H. Contentions and Concluding Findings Concerning
Respondent's Alleged Violation of Section 8(a)(5) of
the Act by the Manner in which it Bargained with
the Union
Despite the many bargaining sessions, the General
Counsel contends that respondent did not negotiate in good
faith. Indicative of this, he maintains, are respondent's
43 In this regard, in addition to deductions required by law, respondent
deducted certain insurance premiums from its employees' wages
44 The quotation appearing in the text is taken from testimony given by
Monte Clark, respondent's manager
45 In this connection, Section 8(d) of the Act provides that the
obligation "to bargain . in good faith . does not compel either party
to agree to a proposal or require the making of a concession "
4s United Steelworkers of America v Warrior & Gulf Navigation Co, 363
U S 574, 578
47 Textile Workers Union of America v Lincoln Mills of Alabama, 353
U S 448, 455
48 Radiator Specialty Company, 143 NLRB 350, 351, 370, enforcement
denied on other grounds 336 F 2d 495 (C.A 4)
49 These included the payment of double time for work after 48 hours,
the payment of time and a half for Sunday work, and an offer by
positions on strikes, arbitration, wage policy, checkoff, and
promotions.
In considering the General Counsel's contentions it must
be borne in mind that the Act "is designed to promote
industrial peace by encouraging the making of voluntary
agreements governing relations between unions and
employers. The Act does not compel any agreement
whatsoever between employees and employers. Nor does
the Act regulate the substantive terms governing wages,
hours, and working conditions which are incorporated in
an agreement. The theory of the Act is that the making of
voluntary labor agreements is encouraged by protecting
employees' rights to organize for collective bargaining and
by imposing on labor and management the mutual
obligation to bargain collectively." N. L. R. B. v. American
National Insurance Co., 343 U.S. 395, 401-402.
It must also be remembered that "good-faith bargaining
does not require the making of concessions . . . . 45 but it
does require that parties justify positions taken by reasoned
discussions and at least make a good-faith effort to reach a
solution of their differences." Alba-Waldensian, Inc., 167
NLRB 695, 696, enfd. 404 F.2d 1370 (C.A. 4).
The General Counsel argues, on brief, "that refusal to
include arbitration in the contract while proposing to
prohibit strike action is practically conclusive evidence of
bad faith bargaining." Arbitration of labor disputes is,
indeed, favored by the law. In this regard, the Supreme
Court has referred to arbitration as being "the substitute for
industrial strife."46 The Court has also stated that "the
agreement to arbitrate grievance disputes is the quid pro quo
for an agreement not to strike."47
Care must be exercised, however, to avoid a per se
approach to the problem posed by respondent's bargaining
position. "[A In employer's insistence upon [a no-strike ]
clause [in a collective agreement] when coupled with a
refusal to provide arbitration may, along with other factors,
provide" a basis for concluding that it has not engaged in
good-faith bargaining. 48 Here , however, there is an absence
of "other factors" which might support such a conclusion.
As shown by the evidence there was agreement by
respondent and the Union in many important areas.49 As to
the matters upon which agreement was not reached there
was substantial discussion and recessions by respondent
from positions originally taken.50 This being so, it cannot
be said that respondent's refusal to agree in advance to final
and binding arbitration in the case of every grievance not
settled to the Union's satisfaction was "conclusive eviden-
ce" of bad-faith bargaining. National Spinning Company,
Inc., 174 NLRB No. 63, enfd. 419 F.2d 391 (C.A. 4).
respondent to pay double time for such work, the amount of call-in, and
reporting, pay, the amount to be paid to injured employees , the furnishing
of lunches to employees working overtime in certain cases and during
emergencies, the manner of establishing rates for newjobs, the wages to be
paid to employees upon their temporary transfer, the manner of computing
seniority, the procedure with respect to layoffs and recalls, the length of
the probationary period, the grievance procedure , the furnishing of
bulletin boards for the posting of union meeting notices; vacations up to 2
weeks, and an offer by respondent of longer vacations on a graduated
scale; and the payment of wages to employees not scheduled to work on
holidays
so In this regard , an important movement by respondent occurred
specifically in the arbitration area, itself, and another, equally significant,
dealt with checkoff
LAWSON-UNITED FELDSPAR 361
Furthermore, respondent ultimately receded from the
position it originally took of insisting on an unqualified no-
strike provision while at the same time refusing to agree to
arbition. At the meeting held on July 2 it presented an
amended counterproposal dealing with strikes and arbitra-
tion. This provided that if the parties agreed "any grievance
not satisfactorily settled . . . shall be submitted to
arbitration." The amended counterproposal further provid-
ed that, if respondent refused to consent to the arbitration
of any such grievance, the Union could exercise its right to
strike after a 30-day cooling-off period. A similar, but more
restrictive, proposal by an employer was considered by the
Board in National Spinning as being insufficient to show its
bad faith in bargaining.51
Concerning checkoff, the Supreme Court, in H.K. Porter
Co., Inc., etc. v. N. L. R. B., 397 U.S. 99, 102, held that all the
law requires of an employer is that he bargain about it in
good faith. Also made plain in Porter and in earlier
decisions of the Supreme Court52 is that agreement upon
such a provision, as with respect to other matters upon
which bargaining is mandatory, cannot be compelled. Nor
is refusal to include a checkoff requirement in a contract a
violation of Section 8(a)(5) of the Act. McLane Company,
Inc., 166 NLRB 1036, enfd. 405 F.2d 483 (C.A. 5).
Where an employer rejects checkoff "for the purpose of
frustrating agreement with the Union [it engages ] in bad-
faith bargaining." H. K. Porter Company, Inc., etc., 153
NLRB 1370, 1372, enfd. 363 F. 2d 272 (C.A.D.C.); cert.
denied 385 U.S. 851. This is not the situation here.
Respondent's counterproposal made no provision for
checkoff However, respondent justified its position on this
subject in a manner which, in my opinion, meets the
requirement that it do so by "reasoned discussions." Also, it
seems to me, respondent made "a good-faith effort to reach
a solution of [its] differences"53 with the Union on this
point.
As to the former, respondent explained that its experi-
ence had shown that employees were interested only in the
wages they were able to put in their pockets; that where
checkoff was authorized by employees they tended to
forget about the authorization; and that the concern of
employees was only with what their paychecks showed
without taking into account the sum deducted pursuant to
their authorization.54 In this regard, too, this case is similar
to National Spinning, where the employer's explanation for
refusing to agree to checkoff was that "it wanted employees
to take home their full pay without deductions of dues."
This position was not so unreasonable as to move the Board
to find that it constituted bad-faith bargaining.
Concerning the second factor set forth in Alba-Walden-
sian as being indicative of good-faith bargaining, although
respondent never receded from its stand on checkoff, it did
make "a good-faith effort to reach a solution of [its]
differences" with the Union. As bargaining in this area
progressed, respondent offered to permit the Union to set
51 The proposal in National Spinning provided for a cooling-off period
of 60 days
52 See, e g, N L R B v American National Insurance Co, 343 U S 395,
402, and N L R B v Jones & Laughlin Steel Corp, 301 U S. I, 45
53 Alba-Waldensian, Inc 167 NLRB 695, 696
54 That a person with expertise in the field of labor-management
relations may not be in accord with the position thus advanced by
up a table in the plant for the purpose of collecting dues.
The Union, however, rejected this offer.
Viewing respondent's bargaining on checkoff in the light
of all of the foregoing, I cannot find that its reason for not
accepting the Union's proposal was adopted "for the
purpose of frustrating agreement." This being the case, I
conclude that respondent has not been shown to have
bargained in bad faith in this regard.
The General Counsel's argument with respect to
respondent's position on wage policy and promotions as
being indicative of its bad-faith bargaining is unclear.
Concerning wage policy, the General Counsel states, on
brief, "in the area of wages, the Respondent never went
beyond a position which would give it a free hand to adjust
wages during the course of the contract. (G.C. 10, Article 4,
Sec. 3)."
General Counsel's Exhibit 10 is respondent's counterpro-
posal, submitted at the meeting held on June 5. Article 4,
Section 3 of respondent's counterproposal, and the
similarly numbered article and section of the Union's
proposal,55 deal with the procedure for establishing wage
rates for new jobs. With the exception of a paragraph in the
Union's proposal providing for arbitration should there be
disagreement between respondent and the Union as to a
particular rate, the two proposals are identical. Upon
receiving respondent's counterproposal on the subject here
under discussion the Union readily agreed to it and that
was the end of the matter.56
The General Counsel's argument that respondent's
position on promotions illustrates its failure to bargain in
good faith is equally obscure. Respecting two provisions in
the Union's proposal which touch on the subject of
promotions, Article 4, Section 4 and Article 5, Section 5,
there was no disagreement. The former, dealing with wages
to be paid to an employee temporarily promoted to a job
for which there was a higher rate than that which he
regularly received, was accepted by respondent during the
meeting held on May 27. The latter, providing for the
procedure to be followed upon the return to the bargaining
unit of employees who had been promoted to supervisory
positions, was agreed to in respondent's counterproposal.
A third provision dealing with promotions appears in that
portion of the Union's proposal dealing with job posting.57
Although there were differences as to this, the evidence, as I
have found, does not clearly show whether these differences
were resolved.
Finally, the General Counsel states in his brief that
"Respondent's tactic was to create the appearance of
bargaining by discussing and reaching agreement on
peripheral matters." Were this so, I would certainly agree
that respondent did not bargain in good faith. But it is not. I
have pointed out in footnote 49 the many significant areas
in which agreement was reached. In important areas where
agreement was not reached such as, for example, strikes,
arbitration, and checkoff, there was much negotiation. In
respondent is not relevant The relevant consideration is, as Porter teaches,
that the position not be taken to frustrate agreement
55 GCExh9
56 1 note, parenthetically, that the matter of general wage scales was
never reached during the bargaining.
57 G C Exh 9, art 5, sec 6
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this regard , there were substantial counteroffers and
concessions proposed by respondent which were not
accepted by the Union.
Accordingly , considering the record as a whole, I
conclude that the General Counsel has not sustained his
burden of proving by a preponderance of the evidence that
respondent engaged in unfair labor practices within the
meaning of Section 8 (a)(5) of the Act by not bargaining in
good faith with the Union . I shall , therefore , recommend
the dismissal of paragraph 15 of the complaint insofar as it
alleges that respondent did not bargain in good faith with
the Union as well as the related portions of paragraphs 21
and 23 of the complaint.
1. Contentions and Concluding Findings Concerning
Respondent's Alleged Violation of Section 8(a)(5) of
the Act by Unilaterally Changing Working
Conditions
The complaint alleges that respondent violated Section
8(a)(5) not only by the manner of its bargaining with the
Union but also by unilaterally changing working condi-
tions. It sets forth that these changes consisted of
eliminating shift swapping, instructing employees to remain
on their jobs until relieved, requiring equipment operators
to assist in repairing machines, discontinuing the posting of
vacant job notices, eliminatingjobs, and removing vending
machines from the plant.
Findings concerning these matters have already been
made. However, in order to determine whether they
constitute violations of Section 8(a)(5) of the Act, as
alleged, certain questions remain to be answered. The first
is whether the asserted changes in working conditions were
such in fact? If they were, the subsequent questions are
whether respondent was required to bargain with the Union
before making them and, if so, whether this requirement
was fulfilled? In support of his contention that respondent
violated Section 8(a)(5) in the respect here under considera-
tion the General Counsel urges that the first two questions
be answered affirmatively and the last, negatively. Unless
these questions are so answered, the General Counsel's
contention must be rejected.
The law governing this phase of the case is quite clear. An
employer required to recognize a union as the representa-
tive of his employees who institutes changes in their
working conditions without first bargaining with the union
violates Section 8(a)(5) of the Act. N.L.R.B. v. Katz et al.,
369 U.S. 736, 743, 747.
In November 1968 respondent notified its employees that
there would be no further shift swapping without superviso-
ry approval and that they would be required to remain at
their posts until relieved. Inasmuch as respondent's
obligation to bargain with the Union did not arise until
April 3, 1969, on which date the Union was certified as the
collective-bargaining representative of respondent's em-
ployees, it cannot be said that these changes in working
conditions, made months earlier, were violative of Section
8(a)(5) of the Act because they were unilateral.
The next two matters alleged as unilateral changes in
58 This finding is not inconsistent with my earlier conclusion that
respondent was not shown to have engaged in bad-faith bargaining with
the Union As the Supreme Court stated in Katz (369 U S 736, 747), "the
working conditions consist of respondent's requirement
that equipment operators assist in repairing machines and
its discontinuance of posting notices of vacant jobs.
However, neither of these constituted changes in working
conditions. Concerning the former, respondent, as I have
found, has always required equipment operators who were
capable of doing so to assist in repairing their machines.
Respecting the latter, as I have also found, respondent's
posting of vacant job notices was a sometime thing. It
never, therefore, acquired the status of a practice which
affected conditions of employment. Accordingly, even if
respondent after the Union's certification unilaterally
discontinued the posting of notices announcing job
vacancies, a matter which the evidence does not bung into
sharp focus, it did not engage in conduct for which it was
accountable under the Act.
Continuing the cataloging of respondent's alleged
violative unilateral changes, the next matter for considera-
tion is respondent's elimination of two positions. While the
Union's strike against respondent was in progress respon-
dent did away with two jobs which were never thereafter
reestablished. It combined the work which has been done
by an employee known as a reagent man with that being
done by another person and eliminated the function
previously performed by an employee called a crusher
operator helper. The only evidence bearing on the question
of respondent's conferring with the Union in this regard is
that given by Thomas Lawson, respondent's president, who
testified that he didn't remember whether it had been done.
This, in my opinion, falls far short of the quantum of proof
necessary to show an unfair labor practice. Accordingly,
the conclusion that the jobs in question were unilaterally
eliminated is not warranted.
Finally, in this category, is the complaint's allegation that
vending machines were unilaterally removed from respon-
dent's plant. I have found that these machines, which
dispensed soft dunks, were taken out of the plant on
August 22, 1969, without prior consultation with the Union.
The furnishing of refreshments to employees is a condition
of employment. Cf. McCall Corporation, 172 NLRB No. 55.
Accordingly, although there was, seemingly, a good reason
for the removal of the machines, namely, the litter which
resulted from their use by employees, this did not justify
their removal by respondent without first bargaining with
the Union. Weston and Brooker Company, 154 NLRB 747,
749, enfd. 373 F.2d 741 (C.A. 4). I find, therefore, that
respondent's unilateral action in this regard was violative of
Section 8(a)(5) of the Act.58
In sum, therefore, I conclude that respondent engaged in
an unfair labor practice within the meaning of Section
8(a)(5) and (1) of the Act by unilaterally removing vending
machines from its plant. I further conclude that respond-
ent's conduct in eliminating shift swapping, instructing
employees to remain on their jobs until relieved, requiring
equipment operators to assist in repairing machines,
discontinuing the posting of vacant job notices, and
eliminating jobs did not constitute unfair labor practices
within the meaning of Section 8(a)(5) or (1). Accordingly, I
Board may hold unilateral action to be an unfair labor practice in
violation of Section 8(a)(5), without also finding the employer guilty of
over-all subjective bad faith "
LAWSON-UNITED FELDSPAR
shall recommend the dismissal of subparagraphs (c), (d),
(e), and (g) of paragraph 15 of the complaint as well as the
related portions of paragraphs 21 and 23 of the complaint.
J. Facts Concerning Respondent's Alleged Violations
of Section 8(a)(3) of the Act by Failing to Reinstate
Certain Strikers
During the strike respondent replaced some of the
strikers and eliminated jobs previously held by two of
them.59 Upon the strike's termination all employees who
had participated in the strike made an unconditional offer
to return to work. However, those who had been replaced
and the two employees whose jobs had been eliminated
were not reinstated.60
Some persons who were hired as replacements for strikers
left respondent's employ after the strike. Although
respondent filled the jobs vacated by the replacements, it
did not reinstate, or offer to reinstate, any striker whose
replacement departed after the strike. No reason was
asserted for this by respondent, nor did respondent show
that between the end of the strike and the departure of their
replacements the unreinstated striking employees had
obtained substantially equivalent employment elsewhere.
K. Contentions and Concluding Findings Concerning
Respondent's Alleged Violations of Section 8(a)(3) of
the Act by Failing to Reinstate Certain Strikers
The General Counsel urges, on two fronts, that
respondent's failure to reinstate the strikers is violative of
Section 8(a)(3) of the Act. He asserts, first, that the strike
was an unfair labor practice strike and that, therefore, the
strikers were entitled to immediate reinstatement on
request. Having concluded that the strike was economic in
nature, this argument must be rejected.
In reliance upon Laidlaw Corporation, 171 NLRB No.
175, enfd. 414 F.2d 99 (C.A. 7), the General Counsel's
second, and alternative position, taken on the assumption
that the strike might be deemed to have been economic, is
that the strikers should have been reinstated when their
replacements left respondent's employ. Unlike the General
Counsel's first argument, his second has merit.
Laidlaw seems to be so well known that I will not further
lengthen this already lengthy decision by an extensive
discussion of the principles there expressed. It will suffice
merely to state what the Board held and to demonstrate
that that holding is applicable here. "We hold," said the
Board, "that economic strikers who unconditionally apply
for reinstatement at a time when their positions are filled by
permanent replacements: (1) remain employees; (2) are
entitled to full reinstatement upon the departure of
replacements unless they have in the meantime acquired
regular and substantially equivalent employment, or the
employer can sustain his burden of proof that the failure to
59 As already noted the jobs in question were reagent man and crusher
operator helper These had respectively, by D S Hall and Virgil Murdock
60 The replaced employees are Arthur Garland, Donnie Buchanan, Paul
Pittman, Frank Buchanan, Dennis Buchanan , and Leon Buchanan
Murdock , whose job as crusher operator helper had been eliminated during
the strike , was given another job Hall, whose job as reagent man had also
been eliminated during the strike , has not been employed, or offered
employment , in any capacity by respondent since the strike Before the
363
offer full reinstatement was for legitimate and substantial
business reasons."
Respondent did not show that its "failure to offer full
reinstatement [to the strikers upon the departure of their
replacements] was for legitimate and substantial business
reasons." Nor was there a showing by respondent that the
strikers who were not reinstated, or offered reinstatement,
"upon the departure of replacements [after their uncondi-
tional application to return to work] in the meantime
acquired regular and substantially equivalent employ-
ment."
Accordingly, as the Board did in Laidlaw, I conclude that
respondent engaged in unfair labor practices within the
meaning. of Section 8(a)(3) and (1) of the Act by not
reinstating, or offering to reinstate, employees who
participated in, and who had been replaced during, the
strike upon the departure of their replacements from
respondent's employ after their unconditional applications
to return to work.
IV. THE EFFECT OF RESPONDENT'S UNFAIR
LABOR PRACTICES UPON COMMERCE
Respondent's unfair labor practices, as found above,
occurring in connection with its operations described in
section I, above, have a close, intimate, and substantial
relationship 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
I have found that respondent engaged in unfair labor
practices within the meaning of Section 8(a)(3), (5), and (1)
of the Act. My Recommended Order, therefore, will
contain appropriate cease-and-desist provisions as well as
directions to respondent to take such affirmative action as
will effectuate the policies of the Act.
In this regard, to remedy its violations of Section 8(a)(3)
of the Act respondent will be ordered to offer replaced
strikers whose replacements are no longer in its employ full
reinstatement to their former jobs, or if those jobs no longer
exist to substantially equivalent positions without prejudice
to any of their rights and privileges. Respondent will further
be ordered to make them whole for any loss of earnings
they may have suffered by not having been offered
reinstatement upon the departure of their replacements .61
Any backpay found to be due shall be computed in
accordance with the formula set forth in F. W. Woolworth
Company, 90 NLRB 289, and shall include interest in the
amount and manner provided for in Isis Plumbing &
Heating Co., 138 NLRB 716.
To remedy its violation of Section 8(a)(5) of the Act
respondent will be ordered to install in its plant two soft
drink vending machines like those it unilaterally removed
strike Dennis Buchanan was a drymill operator and Leon Buchanan was a
loader After the strike they rejected offers of employment as baggers A
bagger's wage rate is lower than a drymill operator's and higher than a
loader's
6i The persons entitled to reinstatement in accordance with the
provisions of my Recommended Order, as well as the dates upon which
their replacements left respondent 's employ, may either be agreed upon or
determined in formal compliance proceedings
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and place them in the locations occupied by those which
were removed or in substantially similar locations.
Because unfair labor practices which result in deprivation
of employment go "to the very heart of the Act"62 broad
cease-and-desist provisions will be included in my Recom-
mended Order.
Upon the basis of the foregoing findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce within
the meaning of Section 2(5) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Homer Silvers, Clyde Robertson, James Thomas, and
Quentin Buchanan are not supervisors within the meaning
of the Act.
4. All production and maintenance employees, includ-
ing working foremen employed at respondent's Spruce
Pine, North Caroline, feldspar mine and plant, excluding
all office employees, guards, professional employees and
supervisors as defined in the Act, constitute a unit
appropriate for purposes of collectiye bargaining.
5. At all times since April 3, 1969, the Union has been
the exclusive collective-bargaining representative of the
employees in the aforesaid unit.
6. Keeping soft drink vending machines in respondent's
plant for the use of its employees constitutes a condition of
employment of the employees in the unit described in
Conclusion of Law 4, above.
7. The strike against respondent in which its employees
participated and which terminated on July 26, 1969, was
economic in nature.
8. By failing to reinstate employees who participated in,
and who had been replaced during, the aforesaid strike
upon the departure of their replacements from respondent's
employ after their unconditional applications to return to
work, respondent has discriminated in regard to their hire,
tenure of employment, and terms and conditions of
employment, thereby discouraging membership in the
Union, and has engaged, and is engaging, in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act.
9. By causing the removal of two vending machines
from its plant without bargaining thereon with the Union,
respondent has engaged, and is engaging, in an unfair labor
practice within the meaning of Section 8(a)(5) and (1) of the
Act.
10. Respondent did not engage in any independent
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
11. Except as set forth in Conclusion of Law 8, above,
respondent engaged in no unfair labor practices within the
meaning of Section 8(a)(3) of the Act.
12. Except as set forth in Conclusion of Law 9, above,
62 N L R B v Entwistle Manufacturing Company, 120 F 2d 532, 536
(CA 4)
63 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
respondent engaged in no unfair labor practices within the
meaning of Section 8 (a)(5) of the Act.
13. The unfair labor practices engaged in by respondent
as set forth in Conclusions of Law 8 and 9 , above , affect
commerce within the meaning of Section 2 (6) and (7) of the
Act.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record in this case , and pursuant to
Section 10(c) of the Act, I hereby recommend that the
Board issue the following:
ORDER63
Lawson-United Feldspar & Mineral Co., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in United Textile Workers
of America, or any other labor organization, by discnnu-
nating in any manner against employees in regard to hire or
tenure of employment or any term or condition of
employment.
(b) Unilaterally changing any condition of employment
or in any similar or related manner refusing to bargain with
United Textile Workers of America, or any other labor
organization designated, or selected by its employees, as the
exclusive collective-bargaining representative of its employ-
ees in any appropriate unit.
(c) In any manner interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, or 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 National Labor
Relations Act, as amended, or to refrain from any or all
such activities.
2. Take the following affirmative action which, it is
found, will effectuate the policies of the National Labor
Relations Act, as amended:
(a) Offer to employees.
(i) who participated in the strike which terminated on
July 26, 1969, and
(ii) who were replaced during the strike, and
(iii) whose replacements departed from its employ
after July 26, 1969, the date the employees who
participated in the strike made unconditional applica-
tions to return to work,
immediate and full reinstatement to their formerjobs, or, if
those jobs no longer exist, to substantially equivalent
positions without prejudice to any of their rights and
privileges, and make them whole in the manner set forth in
the section of this Decision entitled "The Remedy" for any
loss of earnings they may have suffered by reason of the
discrimination practiced against them.
(b) Notify any of the aforesaid employees who may be
serving in the Armed Forces of the United States of their
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
findings, conclusions, recommendations, and recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings, conclusions, and order, and
all objections thereto shall be deemed waived for all purposes
LAWSON-UNITED FELDSPAR
Training and Service Act, as amended, after discharge from
the Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(d) Install in its plant two soft dunk vending machines
like those which were removed on about August 22, 1969,
and place them in locations occupied by those which were
removed, or in substantially similar locations.
(e) Post at its premises copies of the attached notice
marked "Appendix."64 Copies of said notice, on forms
provided by the Regional Director for Region 11 of the
National Labor Relations Board, after being duly signed by
respondent's authorized representatives, shall be posted by
64 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "POSTED
BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD"
shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF
THE UNITED STATES COURT OF APPEALS ENFORCING AN
365
respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places , including all places where notices to
employees are customarily posted . Reasonable steps shall
be taken by respondent to insure that said notices are not
altered , defaced , or covered by any other material.
(f) Notify said Regional Director , in writing , within 20
days from the receipt of this Decision , what steps have been
taken to comply herewith 65
IT IS FURTHER ORDERED that the following paragraphs of
the complaint be, and they hereby are, dismissed : 6, insofar
as it alleges that Homer Silvers , Clyde Robertson, James
Thomas, and Quentin Buchanan are supervisors; 7, all its
subdivisions , and the relating portions of 21; 9, and the
relating portions of 21 and 22 ; 15, all its subdivisions,
except subdivision (b), and the relating portions of 21 and
23; and 17.
ORDER OF THE NATIONAL LABOR RELATIONS BOARD"
65 In the event that this recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
wasting, within 10 days from the date of this Order, what steps respondent
has taken to comply herewith."