May Aluminum, Inc.

National Labor Relations Board - Board Decisions

Aug 23, 1966

160 N.L.R.B. 575 (N.L.R.B. 1966)

MAY ALUMINUM, INC. 575
prejudice to their seniority or other rights and privileges , and make them whole for
any loss of earnings or other benefits they may have suffered by reason of the
Respondent's discrimination against them. I shall also recommend that the estate of
John Cole, Jr., deceased , shall be paid for any loss of earnings or other benefits from
the time of his ability to return to light work in June until his death in February
1966 . Backpay in each case shall be computed in the manner set forth in F. W. Wool-
worth Company , 90 NLRB 289, and shall include interest in the amount and man-
ner set forth in Isis Plumbing & Heating Co ., 138 NLRB 716.
[Recommended Order omitted from publication.}
May Aluminum , Inc. and Aluminum Workers International
Union, AFL-CIO. Case 203-CA-2013. August 23, 1966
DECISION AND ORDER
On May 13, 1966, Trial Examiner Rosanna A. Blake issued her
Decision in the above-entitled proceeding, finding that Respondent
had engaged in certain unfair labor practices alleged in the com-
plaint and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Jenkins and Zagoria].
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, the brief, and the entire record
in this case, and hereby adopts the Trial Examiner's findings, con-
clusions , and recommendations.
[The Board adopted the Trial Examiner's Recommended Order.]
TRIAL EXAMINER'S DECISION AND ORDER
STATEMENT OF THE CASE
Upon charges filed on April 2 and 9, May 14, and June 22, 1965, by Aluminum
Workers International Union, AFL-CIO, Local 201, the General Counsel, acting
through the Regional Director for Region 23 issued a complaint on May 20, 1965,
and an amendment to the complaint on June 23 , 1965, in which it was alleged that
May Aluminum, Inc, had engaged in conduct which violated Section 8 (a) (1), (3),
and (5 ) of the Act. In its answer and at the hearing, Respondent admitted certain
allegations of the complaint , such as the commerce allegations , but denied having
committed any unfair labor practice.
Pursuant to due notice , a hearing was held in Wharton, Texas, on July 6, 7, 8, 9,
13, and 14, 1965, before Trial Examiner Rosanna A. Blake. All parties were repre-
sented , were given full opportunity to present evidence, to examine and to cross-
examine witnesses , to argue orally, and to file briefs.' The parties waived oral
160 NLRB No. 48.
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
argument. Subsequently, the General Counsel filed a brief as did counsel for the
Respondent.
Having considered the entire record, the briefs, and having observed the witnesses
while testifying, I make the following: 2
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS AND CONCLUSIONS;
THE LABOR ORGANIZATION INVOLVED
May Aluminum, Inc., is a Texas corporation with its principal plant and place
of business at El Campo, Texas, where it is engaged in the manufacture of alu-
minum extrusions and other aluminum materials and products. During the 12
months prior to the issuance of the complaint, a representative period, the Com-
pany manufactured and distributed products valued in excess of $50,000 which
were shipped from its El Campo, Texas, plant to points located outside the State
of Texas. During the same period, Respondent received at its El Campo plant
purchased goods and materials valued in excess of $50,000, which were shipped
directly to El Campo from points located outside the State of Texas.
Upon the foregoing undisputed facts, Respondent admits and I find that it is an em-
ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
It is also undisputed and I find that Aluminum Workers International Union, AFL-
CIO, Local 201, is a labor organization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
May Aluminum, Inc., herein referred to at times as the Company or the
Respondent, operated a plant in Houston, Texas, between 1952 and sometime in
late 1963. The employees at Houston were represented by the International Asso-
ciation of Machinists and the Company and that union entered into a series of
collective-bargaining contracts. The last of the series was effective until October 31
or November 1, 1964; i.e., for approximately 1 year after the plant was opened
at El Campo. According to President May, there was only one "wildcat" strike
and only two or three grievances were filed while the Company was at Houston.
The relations between the Company and the union, May said, were "as amicable"
as they "could be" but he would not say that the Company and the Machinists
"got along too well with anybody that was upsetting our regular routine of work."
The record does not disclose why the plant was moved to El Campo but the
Company gave the Machinists notice of its intention to leave Houston. Although
most of the supervisors and die-shop employees made the move from Houston,
most of the hourly paid employees at El Campo were new. The Company and
the Machinists had "several discussions" about recognition of the latter as the
representative of the employees at El Campo but there is no evidence that the
Company recognized the Machinists as the bargaining representative of the employ-
ees after the move or that it abided by the terms of the unexpired contract. Accord-
ing to President May, a representative of the Machinists came to El Campo and
talked to some of the men and he [President May] offered the Machinists' repre-
sentative a list of the employees, an "office" in the plant, and to send the men in
one at a time to talk to him. A similar offer, May said, was made to Represent-
ative White of the Aluminum Workers. The Machinists' representative refused the
offer and there is no evidence that it was accepted by the Aluminum Workers.
B. The union campaign, the Company's conduct, and the Union's certification
In late August 1964, the Aluminum Workers, herein referred to as the Union,
began an organizational campaign among the El Campo employees.
Upon charges filed by the Union in September and October 1964, a complaint
was issued, a hearing was held, and the Board thereafter issued a Decision and
Order in which it found that the Company had violated Section 8(a)(1) of the
i Correspondence authorizing me to insert into the record exhibits omitted Inadvertently
has been marked as Trial Examiner's Exhibit 1A through 1C and the omitted exhibits are
hereby made a part of the record. Despite requests since March 7, 1966, Respondent has
not replied to my letter.
5A11 credibility determinations made herein are based in part upon my observation of
the demeanor of the witnesses while testifying.
MAY ALUMINUM, INC. 577
Act by engaging in surveillance, by repeatedly interrogating employees about the
union activity, and by threatening reprisals for union activity. The Board also
found that the Company violated Section 8(a)(3) of the Act by discharging an
employee because of his union activity. May Aluminum, Incorporated, 153 NLRB
26.
The Union filed a representation petition on October 20, 1964, the Board con-
ducted an election on November 20, 1964, the Union received a substantial
majority, and on or about December 1, it was certified by the Board as the exclu-
sive bargaining representative of the El Campo employees in an appropriate bar-
gaining unit. No question is raised concerning the conduct of the election or the
validity of the Board's certification of the Union.
Union Representative White testified without denial that "right after the election"
he went to the plant to put some notices on the bulletin board, that he "was ushered
into [Company President] May's office and given a big blast about the 1964 unfair
labor practice charges" and that he told May that he was not there to be inter-
rogated or to talk about the charges, that they would be handled by the Govern-
ment. May then told White, "If that is all you have to say, get out." 3
C. The issues
The General Counsel contends and the Company denies that the Company vio-
lated Section 8(a)(1) of the Act by discontinuing certain periodic increases because
of the union activity, and by threatening employees with reprisals if they engaged
in a strike and later because they had engaged in a strike; that it violated Section,
8(a)(5) and (1) of the Act by failing to bargain in good faith with the Union,
the certified bargaining representative of the employees in an appropriate bargain-
ing unit, by refusing to "negotiate and discuss" the subject of raises with the Union,
by making unilateral changes in wages and jobs classifications, and by failing to
furnish the Union certain data requested by it; 4 that it violated Section 8(a)(3)
of the Act by failing to reinstate certain named strikers, the strike having been,
caused and prolonged by Respondent's failure to bargain in good faith and the
Union having made an unconditional offer on behalf of each striker to return to,
work.
D. The Company's suspension in October 1964 of certain periodic increases
Except for comparatively few skilled employees, such as those in the die shop
and/or die repair shop, new employees are assigned to the shipping department
and their starting rate is $1.25 an hour. The Company's policy was to give each
employee a 21/2 cent an hour raise at the end of a 45-day probationary period and
a 21/2-cent-an-hour increase every 90 days thereafter until he reached the top rate
in the classification. If an employee was transferred to another classification, he
received the base rate for that job and was given a 21/2-cent-an-hour raise every 90
days thereafter until he reached the top rate in his new job .5 This policy was
explained to the employees when they were hired.
The first charge in the prior case was filed in September 1964 and it is clear
that the Company became aware of the campaign sometime in the late summer or
early fall of 1964. Nonetheless, the Company continued to give all of the periodic
increases until on or about October 26, 1964; i.e., a few days after the Union
filed its representation petition. President May testified that the 90-day periodic
increases were stopped "before the election" because the Company understood that
employers had,been found guilty of unfair labor practices "for granting raises and,
trying to influence the election. So, after we got the petition, we stopped them."
At another point, President May explained that the decision was made when the
petition was filed to "hold up any raises until after the election." However, two
90-day raises were given a few days after the petition was filed to employees who
had been "missed" earlier. These were the last 90-day raises given until March 30,
1965. (See infra.) There is no claim that the Company gave the employees any
reason for its action. On the other hand, the Company continued to give the 45-
day raises throughout the entire period.
S The first charge in the instant case was not filed until April 1965. -
I The motion of the General Counsel to withdraw paragraph 11(b) of the complaint is
hereby granted.
s At one point , company counsel referred to these raises as "merit" increases but it is
clear that they were granted automatically and solely on the basis of days worked.
257-551-67-vol. 160-38
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although President May explained when and why it was decided to "hold up"
the 90-day raises "until after the election," he did not explain when or why it was
decided not to resume giving such raises once the election was over. Company
counsel stated for the record that the Company discontinued the 90-day raises but
continued giving the 45-day raises becauses the latter had been given uniformly
whereas there had been a "mix-up" about the 90-day raises so that the Company
could not justify a continuation of those increases. However, there is no evidence
that the Company ever told the Union that the 45-day raises were still being given
or that it ever explained to the Union the reason, stated by counsel, for continuing
the one but not the other.
Moreover the Company's witnesses, President May and Personnel Manager Ralph
W. Burgess, gave inconsistent testimony concerning the "mix-up." According to Pres-
ident May, the previous personnel manager had been notifying the payroll clerk
when to give the raises and when Burgess became personnel manager, he [Burgess]
left it up to the payroll clerk who got the schedule "fouled up."
Burgess, who became personnel manager on June 15, 1964, testified:
the payroll clerk had made a mistake back before I came to work for the
company.
Burgess went on to say that he found that the employees had been given a 45-
day increase and another increase in another 45 days, i.e., 90 days after their dates
of hire, whereas the first 90-day increases should not have been given until 90 days
after the 45-day increases, that is, not until the employees had worked 135 days.
He also explained:
So what had happened, some of the people had been given raises too fast. So
we went back and tried to correct this by holding off awhile . . . . In other
words, holding off forty-five days until their regular time of raise would have
occurred.
When asked when the mistake was discovered, Burgess answered:
I would say it was sometime in July or possibly the first part of August, [1964]
after I had been to work a month or so.6
Because it was Personnel Manager Burgess, rather than May, who discovered the
"mix-up" and because he was responsible for getting the raises back on schedule,
I credit his testimony concerning when the mix-up occurred and when it was
discovered.
E. The negotiations before the strike
1. Introductory statement
The Union was certified on December 1, 1964, and the first bargaining meeting
was held on January 6, 1965. Ten more meetings were held before a strike which
began on April 8 and ended on April 27. Two meetings were held during the strike,
another on the day the strike ended, still another in early May, and the last on
June 23? The meetings usually lasted 21/2 or 3 hours.
All of the meetings were held in the office of President May at the plant in El
Campo with President May being the chief spokesman for the Company and Union
Representative White being the chief spokesman for the Union. Personnel Manager
Ralph Burgess was present at most of the meetings and Local Union President Wil-
liam McElroy, a die-shop employee, attended all of the meetings before the strike
and the first one after the strike began.8 However, neither Burgess nor McElroy took
an active part in the negotiations. A Federal mediator attended the meeting on
April 15 and probably all of the meetings thereafter. Counsel for both parties were
present at all of the meetings after the strike ended.
° If the mistake was discovered in July or early August, this would mean that the
"mix-up" had been straightened out by at least the middle of September; I.e., a month
before the Union filed its petition.
4 A few other meetings were scheduled but were canceled because either Company Presi-
dent May or Union Representative White could not be present.
a McElroy lived in Houston which is approximately 75 miles from El Campo. After the
strike began, McElroy found employment in Houston and resigned as president of the
Local.
MAY ALUMINUM, INC. 579
Union Representative White, Local President McElroy, President May, and Per-
sonnel Manager Burgess testified concerning the negotiations. There are compara-
tively few conflicts in their testimony except with respect to the question of whether
the Company's periodic raise policy was discussed and, if so, when it was discussed
and what was said.
Union Representative White had before him his copy of the Union' s proposed
contract on which he had made some notes and, in most cases , White was able to
state the subjects discussed at each meeting and in a number of cases, was able to
state what was said and by whom. Local President McElroy was able to recall the
subjects discussed, those on which the parties reached agreement and those which
were still in dispute at the close of the meeting on April 15. Personnel Manager
Burgess testified that his recollection of the clauses agreed to and those not agreed
to was similar to that of McElroy.
With some exceptions, Company President May could not recall what was dis-
cussed at particular meetings and was generally unable to state what he said or
what White said.9 He could say only that various subjects were discussed and iden-
tify the clauses agreed to and those on which agreement was never reached. He
said that he had learned that he could not rely on his memory and made it clear
that he regarded undated notes as totally worthless. However, he had made very
few notes and few if any of them were dated.
The findings with respect to the negotiations , except with respect to the subject of
the periodic raises, are based primarily on the undenied and credited testimony of
Union Representative White. In some cases , the findings are based on the undenied
testimony of Personnel Manager Burgess, a witness for Respondent, and that of
President May who was called first by the General Counsel and later by Respondent.
The testimony concerning the discussions, if any, about the periodic increases is
set forth separately.
2. The prestrike meetings
At the first meeting, i.e., on January 6, 1965, the Union handed the Company
a copy of its proposed contract which President May said he would need time to
study. There was some discussion about an employee who was on voluntary layoff
status and Union Representative White commented that supervisors were interrogat-
ing employees about the Union. Personnel Manager Burgess testified without denial
that White stated that "he knew" that the Company "couldn't control the tongues"
of the supervisors but he wanted to bring their conduct to the Company's attention.
There is no evidence that the Company denied knowledge of the supervisors' actions
or that it stated that it would take steps to correct the situation.
Either on January 6 or at the next meeting on January 20, President May told
the union representatives that the Company had been considering for some time
making some changes in the die shop. He explained that the die operations had
been costing the Company too much, quoted some figures, and stated that it would
have to buy more dies from outside. Union Representative White commented that
this was an "awful" time to start subcontracting, that the Company might decide to
subcontract everything, and that the Union would oppose any subcontracting.
On January 20, the parties began going through the nonmonetary clauses in the
Union's proposed contract, both of them preferring to postpone serious negotiations
concerning such questions as holidays, vacations, and insurance, and, in particular,
wages until after the nonmonetary provisions had been discussed.
Agreement was reached quickly on the preamble and the clauses headed recog-
nition and purpose.10 Certain subclauses of the Union's proposed union-security
clause were agreed to with little difficulty, including the Union's proposal that the
B I suggested that May state, whenever possible, what White said which led May to con-
clude that agreement was reached, such as, "We have no problem about that, let's go on
to the next one." May's answer was that "There were very few definite statements that I
could say I remember " May was then asked the following questions by company counsel
and gave the following answers :
Q. . . . When [White] did make [a statement ] In what way would he make it?
A. I don't know To me those things didn't mean a damn thing.
Q. What do you mean by that? The way it was satid? (Emphasis supplied.)
A. The way it was said. It was meaningless to me.
10 None of the three appears to contain anything controversial in view of the Union's
certification.
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
probationary period be 30 days. (As noted supra, the current probationary period
was 45 days .) However , May refused to agree to most of the Union 's proposals
with respect to union security both because he believed that most of them were
illegal under the Texas right-to-work law and because he was not going to force the
employees to pay a "bounty" to the Union . May agreed to furnish a bulletin board
for the Union's use but said "No" to a dues checkoff provision. May pointed out
that dues checkoff would cost the Company money. According to May, he subse-
quently "softened" his position on checkoff by saying "we'd discuss it later" and,
still later, the Company offered a revocable checkoff . (See infra.) Union Representa-
tive White understood May to say that he might consider dues checkoff if the
employees were willing to pay the cost and there was some discussion of a "trade"
on this clause.
Agreement was reached on the grievance procedure clause in the Union's pro-
posed contract which provided for binding arbitration . There was some discussion
about how the union representatives would be chosen in which President May
expressed the opinion that the committeemen elected by the Union were not "com-
petent." The Union insisted, in turn, that it was going to have the exclusive right
to designate its own representatives . However, the Union agreed to provide for a
three-man committee, one of whom would be designated as chairman, that each
department would have a "designated Shop Steward" and that the Union would
furnish the Company with the names of the union representatives and notify it of
any changes in representatives.
When the parties reached the seniority clause, the Union agreed to delete one
subsection and agreement was reached on another subsection . However, other sub-
sections were not agreed to with the question of department seniority versus plant
seniority being one which was discussed a number of times and about which no agree-
ment was ever reached. However, the Union understood that the Company agreed'
to post a plantwide seniority list and to keep and make available to the Union-
but not to post-departmental seniority lists.
The question of reduction and recall and other issues more or less related to,
seniority such as the lines of progression , the right to "bump" less senior employ-
ees, and perhaps job bidding for permanent vacancies were discussed and the dis-
agreements on all or most of these issues appear to have centered primarily around
the die and/or die repair shop employees. These employees, apparently, are the
Company's most highly skilled and highest paid employees and, according to May,
the other employees consider these to be the "elite" places to work. Agreement was;
reached on the reduction and recall provision but lines of progression , the right
to "bump," particularly by supervisors, and job bidding remained in issue at the
end of the third meeting. On job bidding, the Company wanted the personnel'
manager left free to "canvass" all available employees . (The Union 's proposal on.
"bumping" required that the employee not only have seniority but the "ability and
qualifications to immediately perform the work.") On at least one occasion, White
went into the die and/or repair shop to familiarize himself with the work per-
formed by the men in the various classifications in those departments.
At the third meeting (January 22), President May said that he understood that
Union Representative White had called the Federal Mediation Service (or perhaps
the National Labor Relations Board) and that if the Union was going to strike, it
should go ahead and do so and not waste so much time in negotiations. White
explained that he undersood that he was under a duty to notify the Mediation
Service that the parties were negotiating and that the Union hoped that there would
be no strike.
The meeting on February 2 began with a discussion of the overtime provision
in the Union's proposed contract. Many of the subsections were agreed to quickly
while others, such as the overtime rate for Sunday, were not agreed to. (Of course,
overtime pay is governed to a considerable degree by the Fair Labor Standards.
Act.) The call-in and reporting pay clause, which obligated the Company to pay
call-in pay, was agreed to as were the ones headed health and safety and jury
pay." The chief question in dispute concerning paid holidays was the number with.
"The Union 's proposal on health and safety is stated generally and does not appear to
contain much that is controversial except perhaps the Company's obligation to pay an em-
ployee injured on the job for the remainder of the shift and the right of an employee to
report conditions which he regards as unsafe to his foreman and to have the shop steward
present "if necessary ." There is no evidence about the number of employees who had been-'.
called to serve on juries in the past or the probability that they would be called for such.
duty in the future.
MAY ALUMINUM, INC. 581
the Union requesting seven and the Company offering only five, the number cur-
rently granted. However, this was regarded as a monetary clause and serious dis-
cussion was deferred in line with the agreement reached early in the negotiations.
The Company requested that the union label clause be deleted and the Union
agreed. Vacations were also discussed and the Company said that it would study
the plan set forth in the Union's proposed contract and would submit a plan of
its own. The Union, in turn, agreed to submit a new clause on vacation scheduling.
May said that he preferred the clause on foremen working contained in the Hous-
ton contract with the Machinists. He also said that he wished to "clear" other
clauses with his attorney.
As the parties were leaving, President May stated that the Company had dis-
continued giving raises and White commented that by doing so the Company had
saved considerable money. (See infra.)
At the February 24 and 26 and March 1 meetings, the parties continued through
the rest of the Union's proposed contract, clause by clause. The Company would
not agree that seniority would continue to accumulate during leaves of absence on
union business and would not agree that the Union, as well as the Company, would
have to approve a leave of absence to work elsewhere. There was considerable dis-
cussion and no agreement about the Union's proposal that a foreman should not
be permitted to "bump," in the case of a layoff, a unit employee and the Union's
request that a limit be placed on the number of part-time employees.
There was some disagreement and some agreement on the Union's proposal with
respect to temporary transfers. The Company asked for and the Union agreed to
a change of wording in one of the subsections under discipline and discharge. The
Company agreed to notify the Union if an employee was disciplined or discharged
but refused to agree to tell the Union the reason for its action . The only serious
disagreement about the Union 's insurance proposal arose because it provided for
dependents ' insurance.12 May pointed out that dependents ' insurance would mean
that employees with dependents would receive greater benefits than those without
dependents and also commented that an insurance provision would benefit the
doctors primarily because he understood that the employees did not pay their
medical bills anyway 13 May wanted to discuss the management rights, no strike-no
lockout, and new processes clauses with his attorney and indicated that he might
submit counterproposals on these subjects.
On March 5, it was agreed that any agreement would run for 2 years although
there was some disagreement then and later about the effective dates. The chief
subject discussed was the die-shop classifications , the die-shop foreman was called
in, and White was taken on a tour of that department or those departments. The
Company submitted a die-shop job classification chart which was agreed to as a
substitute for the classifications set forth in Exhibit A to the Union's proposed
contract. Although the chart did not contain any wage rates , there was a discussion
of the die and die repair shop rates. According to May, the Company had at the
meeting a list of the employees in those shops, with the dates they were hired, their
starting rates and their present rates and a statement that the rates were higher than
those proposed by the Union. May stated that the list was "spread out on top of my
desk" and that he was "sure" it was shown to White. He added, however, "Whether
it was handed to him or he took it in his hands, I don't know." On the other hand,
Local President McElroy testified that he had never seen the list. McElroy worked in
the die shop and would be likely to remember a document which concerned his
department and on which his name appeared . Moreover , much of his testimony sup-
ported rather than negated company contentions and his demeanor convinced me
that he was a careful and truthful witness. Accordingly , I conclude that the list was
not given to the union representatives for examination and study.
May still refused to agree that jobs in the die shops be open for bidding and
there was some disagreement about the truckdriver or drivers . The latter, May
contended , drove leased equipment and the lease required that they be fully quali-
fied. He also argued that a driver was a company representative because of his con-
tact with customers and had to be "hand-picked." Otherwise, May said, he would
make the driver (deliveryman) a salaried employee and "take him out of the
12 It appears that this was the only material difference between the Union's proposal and
the Company's present plan. In any event, there is no evidence that the Company offered
a plan which provided greater benefits than the employees were presently receiving
13 Alay testified that the Company 's position on insurance was not based on the latter
fact and that his remark to this effect was not meant to be taken seriously.
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union." 14 White answered that if May took the man out of the unit, "we would
have a pretty bad fight on our hands" because, in his opinion, this would be "con-
trary to law," i.e., May could not make hourly employees monthly employees,
"without the agreement of the Union."
By the close of the March 5 meeting, all of the nonmoney clauses had been
discussed and, as indicated above, agreement had been reached on a number of
them. On March 5, the parties started through the Union's proposed contract
again and when checkoff was reached, President May said he wanted to "trade it"
but when White said, "All right. Let's trade. Let's get it all straightened out and
agreed to," May said he did not want "to trade it at this time."
The Company offered the Union two counterproposals on vacations leaving it
up to the Union to decide' which it preferred. Although it is not entirely clear, it
may be that both counterproposals would have meant increased vacation benefits.15
The Union said it would consider the proposals.
Either on March 22, or more probably on March 25, the right of foremen to
"bump" and part-time employees were discussed again. Early in the March 25
meeting, White suggested that the "whole thing" be "put on the table" so that the
parties could see what they had. Then, maybe the Union could "give in on this"
and the Company could "give on that" and the issues would be resolved. President
May wanted to know if White was ready to go into the money items and the
latter said "yes" that they should stop the "cat and mouse" game.
The Company repeated its alternate vacation plans; on insurance, Personnel
Manager Burgess was asked to compile figures before the next meeting showing
how much insurance cost the Company per man hour.16 The Company offered a
3-cent increase in the night shift differential but stated that the number of paid'
holidays would remain the same.
When the subject of wages was reached, President May said he would say "right
damn quick" what he would do about wages and that he was "not going to do a
damn thing. I told those people what I was going to pay them when they came to
work here. That is what I am going to pay them. You told them you were going to
do something else. Now, let's see you do it." As May put it at the hearing, "I
think I went into the fact that we had made certain definite commitments" to the
employees and "felt obligated" to live up to them. According to May, "They tried
to get a raise out of me and I did not tell them why only that we were not prepared
to give any." White gave some argument about why he thought there should be
increases but May said "no," that he had stated what he was going to do. McElroy
testified without denial that White asked if May would be willing to have the jobs
evaluated by an arbitrator and May said no, that he would evaluate his own jobs.
White told May that he "was hoping that we could settle this without a fight"
but "Apparently we can't." He then proposed to "call on Mediation." May replied
that he did not care to have a mediator, that he was negotiating with White and
McElroy. However, when White asked if May was refusing to meet with a mediator,
May said that he was not.
F. The March 30 increases
A few hours after the March 25 bargaining meeting, Union Representative White
prepared a notice calling a special meeting on April 1 for the purpose of taking a
strike vote. In White's words, he "handbilled the plant," also took two of the
notices to Personnel Manager Burgess, asked Burgess to post them, and Burgess
agreed to do so.
On or about March 30, the Company notified about 90 employees (all of those
who had failed to receive the 90-day raises since the previous October) that they
were receiving their periodic increases . Some of the raises amounted to 21/2 cents
and some to 5 cents an hour. The Company 's letter, signed by Personnel Manager
Burgess , to the employees read:
You will recall that when you were hired, we told you that you would be
given periodic raises in your job classifications.
14 Some of the discussion about delivery personnel took place at the March 9 meeting.
15 May seemed to be saying that either of the vacation offers would mean greater benefits
but when Personnel Manager Burgess was asked if they would give the employees more,
less, or about the same, be answered, "We would have to get into . . . specifics. It cer-
tainly wouldn't be any less, I wouldn't think."
16 Personnel Manager Burgess testified that President May asked him to prepare some
information on the cost of insurance, that he prepared it, but could not recall that it was
given to the Union. There is no evidence that it was ever given the Union.
MAY ALUMINUM, INC. 583
We have been unable to make wage adjustments during the period just past,
because of the union organizational campaign. However, we feel that we
should now fulfill our promise and continue our policy of periodic increases in
job classifications.
Your check for the work period ending March 28, 1965 will reflect a
raise.
On March 30, Burgess sent White a copy of the above letter.
On March 31, Burgess prepared and posted the following notice:
BULLETIN
There has been a lot of talk about our employees going out on strike. We do
not want to see this happen; however, we want you to know that an employer
has the right to operate his plant if a strike is called. May Aluminum plans to
continue operating this plant.
We think you should know that replacements whom we hire will be perma-
nent. Therefore, those employees who go out on strike and are replaced by
other men will no longer be employees of May Aluminum.
On April 2, the Union filed its first charge in the instant proceeding alleging that
the Company, "Since on or about March 30" had refused to bargain in good faith
with the Union by granting "a unilateral wage increase" to employees in the bar-
gaining unit "after having refused during negotiations to grant any wage increases
to such employees through the process of collective bargaining."
On or about April 7, the Company wrote each employee who had received an
increase the following letter and, on or about the same day, sent a copy to White:
The Aluminum Workers International Union, Local 201, through their rep-
resentative, Mr. Orion White, has filed an unfair labor practice charge against
us for granting you the raises we promised you when you were employed and
which you have been receiving since that date.11
Therefore, we must rescind this latest increase and will have to deduct the
amount paid under this increase from your next check.
We realize that this is rather ridiculous, but apparently the union is not
going to permit us to keep our commitments to you without going to court.
We do not have the time nor the money for this.
On April 9, the Union filed- another charge alleging that the Company had
refused to bargain in good faith by granting, on or about March 30, a unilateral
wage increase and by thereafter rescinding the increases after having refused, dur-
ing negotiations , to grant any wage increases.
G. The testimony about whether the 90-day increases were discussed
during the prestrike negotiations
It is undisputed that the 90-day raises were-not resumed after the election in
November 1964 and that none was given until March 30, 1965. The giving of the
March increases and their cancellation after a charge was filed are alleged to have
been unilateral actions by the Company. On the other hand, the Company argues,
inter alia, that it had bargained about the increases, that an impasse had been
reached, and that it therefore had the right to grant them.
According to Union Representative White, the only time the periodic increases
were mentioned was as the parties were leaving the February 2 meeting, the fourth
bargaining session, and approximately 3 months before the strike. White said that
as they were leaving the meeting, President May commented that the Company had,
"discontinued" giving the raises it had given in the past and that he [White] replied
that, by doing so, the Company had saved a considerable amount of money. White
insisted that the Company's policy with respect to periodic increases was never
explained and that President May never said that he wanted to start giving raises
again.
Local President McElroy, who attended all of the prestrike meetings, consistently
denied, no matter how the question was put, that the Company ever mentioned the
periodic increases and that it ever said it wanted to give them. McElroy, who
worked in the die shop to which the periodic raise policy did not apply, testified
that he knew nothing about periodic raises and that there was no discussion about
"As stated supra, it is undisputed that no 90-day increases had been given since late
October or early November 1964.
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the fact that the die men were hired and paid differently from the other employees.
He said that he did not hear White 's comment about saving money.
Personnel Manager Burgess, a witness for Respondent , testified that he could
say definitely that the raises were discussed twice before the strike . The first time,
he said , was in early March (probably March 5 ) and the second time was on
March 25, the last meeting before the strike . In Burgess ' words:
as far as I can recall , the first time it was brought up was when we were
discussing in one meeting classifications . I recall that I, personally , was going
over all the classifications in every department . . . for instance , in the Extru-
sion Department , I was saying that our classification is puller, stretcher helper,
finish saw helper and finish saw operator being our first classification , and that
was from $1 .27/ to $1 . 35 . . . . I went through this on very department
that we had.
. when I gave the classifications ... I would give the rates there, and Mr.
May says that we were giving these two and a half cent raises every ninety
days, that we promised the people and ... the company felt obligated to give
them , but that we were afraid to because of possible unfair labor [practice]
charges.
And Mr. White just laughed and said , "Well, see, we are saving you a little
money." 18
However, when Burgess was asked on cross-examination to state what was said
about the 90-day raises at the early March meeting , he did not refer to them
explicitly, stating instead:
Well, I was going over the classifications of each of our departments, and I
was pointing out that certain jobs represented certain classifications and giv-
ing the spread . . . in that classification . I did this for every department that
we had.
When Burgess was asked if that was all that was said, he answered:
Pretty well . About that time was when Mr . May said that as we had promised
these things he felt that we were obligated to give them and Mr . White again
just laughed and said , "Well, we are saving you some money."
At the March 25 meeting , Burgess said , the subject was "mainly . . . economic
factors" and this brought up job classifications and the money that went with them.
According to Burgess , May said that the Company would "stay" with its present
policy and when White asked if that meant that the Company was not going to
give raises , May replied , "No, I didn't say that .... Our present policy calls for
periodic increases." 19
In an affidavit given by Burgess in connection with charges filed by the Com-
pany against the Union (see infra ), Burgess said nothing about White having asked
if May's statement meant that there would be no raises and said nothing about
May having said that the present policy was to give raises.
May was the General Counsel 's lead-off witness and at that time testified that he
talked to the Union "several times" about wanting to go back and give the raises
and that the Union "insisted" that this not be done. Later on , May said that White
"was not too committal" about whether or not the Company could give the
increases but that he "just wasn't in favor of it. I don 't know he ever got too
excited one way or another," that White never told him "right out not to give
them" but let the Company know he did not want them given . When asked the
date or dates on which the subject came up, May said that it was "two or three
meetings" before the March raises were given . At another point, May testified that
the subject was brought up at the last few meetings before the strike, i.e., at the
March sessions , and added , "I think we finally told [White ] we were going ahead
and give them."
Thereafter, as a witness for Respondent , May testified that he told the Union
"exactly what our policy had been , and we were going to go ahead and give them,
that we felt obligated , as we had told them on various occasions . Dates, as a rule,
is Although Local President McElroy testified that lie did not hear White make any such
remark , President May, as well as Burgess , agreed that White made a comment to this
effect
v On cross -examination , Burgess added that May said that he had told the employees
what he was going to give them and that is what they were going to get.
MAY ALUMINUM, INC. 585
I cannot tell you, but I would say at least a half a dozen times or more we
insisted that we go ahead and be permitted to give them." May said that he knew
very definitely that one of the occasions was the March 25 meeting, the last meet-
ing before the strike, but that he could not tell the other dates. It happened, May
estimated, "three or four times, four or five times, maybe, I would say four or five
times it happened before the strike , during the strike, and after the strike," adding
that he thought the subject came up every time seniority and job classifications
were discussed . On cross-examination , May estimated that the subject was discussed
"five to maybe seven, maybe eight" times and four or five of these times were
before the strike. When the question was repeated, May answered that the subject
was discussed "from five to maybe seven or eight" times before the strike. However,
the only date he could recall at that time was March 5 and he recalled that date
because it was on a document (which contains no wage rates) which was given the
Union that day. Still later, May said that he believed that the subject was discussed
"at the very first meeting," i.e., on January 6. May also stated that he "would say"
that the periodic raises were brought up everytime anything came up pertaining to
money, that every opportunity we had we brought it up because we were darn
sure we were going to bring it up." May explained that he was "very definite" in
bringing it up in "several meetings" "Because it was my understanding that if we
negotiated on something we always intended, I would say, to go back and give
these people what they had been promised, what we were committed to give them.
It was my understanding that if we negotiated on something , whether or not we
agreed to it, we could go ahead and do it without any danger of unfair labor prac-
tice charges, so we were very, very, very sure to bring it up on several occasions
and discuss it."
There is no claim that a written statement of the policy was ever given the Union
and May's very brief, prestrike notes contain no reference to 90-day raises. His
notes about the March 25 meeting, the last one before the strike, state only that
the Company 's position on wages was "the present" rate although his notes about
a meeting after the March raises were given and after the charge was filed, do
refer to the 90-day raises. Indeed , the information was not furnished even after the
Union 's specific request in June.
Moreover , an examination of the Union 's proposed contract and the generally
consistent testimony concerning the order in which the sections were discussed dis-
closes that the logical place for the Company to mention the 2 /-cent increases for
the first time was at the January 20 meeting when it agreed to a 30-day probation-
ary period. By agreeing to the reduction of the probationary period from 45 to 30
days, it would seem that the employees would receive their first increase and
probably all subsequent increases 15 days earlier than under the current practice.
Yet neither May nor Burgess claimed that the periodic increases were mentioned
at the time agreement was reached on a shorter probationary period.
It is also significant that the Company 's March 30 letter to the Union enclosing
a copy of its letter to the employees was a two-line note signed by Personnel Man-
ager Burgess which does not refer to discussions about the increases and does not
claim that the Company felt free to act because an impasse had been reached on
the subject .20 If, as claimed by the Company , it was aware from the beginning that
it could act only after a bargaining impasse and if it was in fact acting because an
impasse had been reached, I believe that the Company's letter to the Union would
have set forth the facts upon which it was relying to justify its action . Instead, the
only explanation given by the Company was its statement in its letter to the
employees that the increases were withheld "because of the union 's organizational
campaign" but that the Company now felt it should fulfill its promises .. .
Furthermore , the Company misstated the facts on the subject of the raises.
Although it is undisputed that the Company had given no 90 -day raises since late
October 1964 , its April 7 letter to the employees rescinding the raises referred,
inter alia, to
the raises we promised when you were employed and which you have been
receiving since that date. (Emphasis supplied.)
Finally, in an affidavit given by May in support of a charge filed by the Com-
pany against the Union based on the latter 's conduct in connection with the strike
which began on April 8, May stated "All money items were deferred and never
24 Of course , the Company 's letter to the employees contained no reference to the negotia-
tions but , instead, explained that the raises had been withheld "because of the union's
organizational campaign."
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discussed" and "at our last meeting [March 25] we discussed wages for about
fifteen minutes ." 21 At the hearing , May agreed that the latter statement was true
"if you want to pin it right down to the actual wages. We spent an hour or so dis-
cussing all the costs , but the wages , the increase , blanket increase , was very, very
short." 22
Respondent objected vigorously to the introduction of May's affidavit and one
by Burgess on the ground that they were given in connection with a charge the
Company filed against the Union, that they were given because the Board had told
the Company that it would not investigate the Company's charges without support-
ing evidence from the Company, and that the Board agent agreed that the affidavits
would be used only in connection with the Company's case against the Union. The
General Counsel stated that the Board agent who took the affidavits was on vaca-
tion and unavailable as a witness and that, in any event , he had no authority to
make any such agreement.
Although the Company 's attorney stated, at least in connection with May's affi-
davit, that he was prepared to testify to "what I think the agreement was," he did
not testify on the subject although he did testify about another matter . And May
did not testify to any such agreement although he made a number of other com-
plaints about the taking of the affidavit.23 I note that there are a number of cor-
rections in the affidavit but none was made in connection with the statement about
the wage discussions.
Concededly , the subject under investigation determines the matters set forth in an
affidavit and if the charges are different , the details in an affidavit could well be
different from later testimony even if the general subject was the same . However,
the statements in May's affidavit, quoted above, are broad , factual statements con-
cerning the negotiations and not details which can be explained by the fact that it
was taken in connection with the Company's charge against the Union. Either the
periodic increases were discussed over and over, as May testified , or "All money
items were deferred and never discussed" until the March 25 meeting and then only
briefly.
Union Representative White, much of whose testimony is undisputed , impressed
me as a reliable witness. Local President McElroy, who was a die-shop employee,
was not employed by May at the time of the hearing and was no longer associated
with the Local . It does not appear that he was even a union member and he did
not appear to be a "professional " union man . As noted previously, much of his
testimony was favorable to the Company and I believe that he was a careful,
truthful witness who was telling what happened to the best of his ability without
regard to whether his testimony helped the Union of the Company.
In determining whether or not the increases were discussed , I have considered
particularly the numerous and serious internal inconsistencies in May's testimony
on the subject and the conflicts between May 's and Burgess ' testimony on the same
subject set forth previously . As demonstrated above, nearly every time May testified
about the discussions of the increases , he became more certain in his statements
21 The Regional Director refused to issue a complaint on those charges and his action was
sustained on appeal.
23 Early in the hearing , May was asked the,following question and gave the following
answer:
Q. I believe there was a meeting on or about March 25 that the subject of wages
was first discussed . Does that sound about right to you ? I believe this would be the
last meeting before the strike began.
A Right. ( Emphasis supplied.)
May's answer seems to indicate agreement that the subject of wages was discussed for the
first time on March 25 but he may have been agreeing only to the last sentence of the
question.
zv May testified that he had an "awful time" getting the Board agent to write down what
he said, that he made the agent correct the affidavit in several respects , and corrections
appear on the face of the affidavit . May said that he gave three statements but the agent
prepared only one, claiming that he did not hear the others. However , in May's words, "But
finally then we got him to sit down and we gave him two more statements . And he in-
cluded them in there more or less as we said them " May agreed that he did not submit
his own draft , that he read the affidavit before signing it, and that the Company 's attorney
was present . The affidavit was taken the day the strike ended and when the mediator was
present. According to May, the agent would "rush in" between discussions with the
mediator.
MAY ALUMINUM, INC. 587
and the number of times the subject was discussed continued to rise until he finally
would have it believed that the increases were mentioned at the very first meeting
(January 6) and nearly every meeting thereafter prior to the strike. May, an intelli-
gent and experienced business man, claimed that he was determined to bring up the
subject of the increases so that he could eventually give them, even if the Union
did not agree. Under these circumstances, I believe that if the subject had been dis-
cussed, May would have been able to state exactly and, more importantly, con-
sistently when the discussions occurred and would have been able to state in some
detail what he said and what White said.
For the foregoing reasons, I am convinced and find that the only reference to the
increases in the negotiations up to and including those on March 25 was a passing
remark made by May as the parties were leaving one of the meetings , probably in
February. In my opinion, the discussions described by Respondent' s witnesses,
including May's testimony that the Company stated that it wanted to give the raises,
were "after thoughts" designed to justify the March 30 increases.
However, it is clear that Union Representative White knew that the Company had
been giving some increases based upon days worked, that he also knew that one
employee had failed to get such a raise in December 1964, that he told the employee
the Company could not give raises, and that he did not bring up either subject dur-
ing the negotiations. Employee Jesse Lopez, Jr., a witness for the General Counsel,
testified that about 2 weeks to a month after the election, i.e., sometime in Decem-
ber, he asked his foreman about his 21/2-cent raise and the foreman said he would
talk to Personnel Manager Burgess about it. A few days later, the supervisor told
Lopez that the Company could not give him "any raise because it was against the
rules or the law of the Company or the Union, they could not give [Lopez] a
raise until they [made] a settlement, and an agreement." On some undisclosed date,
but probably not long after his talks with his supervisor, Lopez told White that he
had not got his expected raise, White asked why, and he told White about the
"law." White then told Lopez, "They were right. They could not give a raise."
White admitted that he had heard from the employees that some of them had
been given raises and some of them had received no increases and felt that raises
were "overdue." He denied that he discussed the subject with the employees or asked
them for "details,"
There is no evidence that the Company ever told White or that he knew that the
Company had continued to give the 45-day increases and there is no evidence that
the Company was aware of White's statement to Lopez until the hearing.
According to May, "Every one of the union officials" was from the die shops
and "Actually, they knew nothing about the rest of the operation in the plant." May
also stated that he did not think that Local President McElroy made any comment
on the conditions in the plant generally "because I don't think he knew what was
going on outside of his own little bailiwick."
In support of its contention that bargaining negotiations generally and with
respect to the periodic increases in particular had reached an impasse on March 25,
Company Attorney Crowther testified that Federal Mediator Ray told him on
March 26 that an "impasse" had been reported to him and that Union Representa-
tive White had asked for mediation 24 When asked if he told Ray that there was an
impasse in negotiations, White answered, "More or less. I have an idea I did. I felt
like I needed his services." But whatever words White may have used when he
talked to Ray or in the course of the negotiations, it is undisputed that he con-
tinued to seek further meetings with the Company and four more were held at the
Union's request. As May put it at the hearing, White "said he felt we were at an
impasse and the Federal Mediator could help [us] reach an agreement, I guess."
Moreover, there is no evidence that the Company told the Union on March 25 or
on any other date that it believed that bargaining had reached an impasse and that
it would be futile to meet again. At the hearing, May stated that he thought that
the Union was "awful stupid" to strike when negotiations were going on, when
"mediation was coming up," and when he "thought" the parties were "making
progress all along, with the exceptions of a couple of items."
As previously noted, although May asserted that he made sure that the increases
were discussed because he understood that he could then give them even if the
u It was stipulated that if called as a witness, Ray would testify to his name, address,
and his occupation but he would refuse to testify further "in accordance with the policy
of the Federal Mediation and Conciliation Service and the laws of the United States."
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union did not agree, the Company made no reference to discussions or a bargain-
ing impasse on periodic increases in its March 30 letter to the Union enclosing a
copy of the company-employee letter concerning the granting of the increases. On
the contrary the Company's letter to the Union was nothing more than a routine,
covering letter.
Impasse can be used loosely to mean that no progress is being made or that no
agreement has been reached. Neither White nor Local President McElroy is a
lawyer and the negotiations were the first in which White had participated in any
capacity other than an officer of a local union. His lack of legal knowledge, even on
labor matters, is disclosed by his statement at the first meeting, testified to by Per-
sonnel Manager Burgess, that the supervisors had been questioning the employees
but that he knew that the Company could not control their tongues. McElroy was
a rank-and-file employee and it does not appear that he had engaged in company-
union negotiations in the past.
More importantly, the question of whether or not an "impasse" has been reached
which justifies the employer's subsequent actions is not merely a factual question.
It also requires a finding that the impasse followed good-faith bargaining. Cf.
Industrial Union of Marine and Shipbuilding Workers v. N.L.R.B., 320 F.2d 615,
621, footnote 6 (C.A. 3), cert. denied 375 U.S. 984.
G. The strike which began on April 8
1. The decision to strike
The Union held employee meetings at 10 a.m. and 8 p.m. on April 1. A total of
at least 90 employees attended the meetings which were called to order by Local
President McElroy. Union Representative White reported on the negotiations gen-
erally and told the men that during the March 25 meeting President May had com-
pletely refused to negotiate any wages, that White had then received a notice that
the Company had given raises and, to him, this constituted an unfair labor practice.
He also expressed the opinion that the only way to get the Company to bargain in
good faith, as least on the subject of wages, was to call a strike. White also told
the employees that with respect to wages, May was just going to run the plant
exactly as he had been running it and that he interpreted the wage increase
announcement to mean, "I don't have to bargain with the Union; I will go around
and give raises."
Local President McElroy also described what had gone on during negotiations.
He reported that the Union had asked what the Company was going to do about
"cost items" and May had said "nothing," that the Company had told the men, when
they were hired, what it would pay them, that White had made a lot of promises to
the employees and he could go out and get tho things he had promised . McElroy
also told the employees that the Union had asked for a job evaluation but that May
had refused, saying that he would evaluate his own jobs. McElroy also said that
May had not wanted to "sit down with a mediator and with [the Union] to try to
work something out." In addition , McElroy referred to the raises that some of the
employees had received saying that the Union had no advance notice of the
increases and that, in the Union 's view, the Company was "just more or less refus-
ing to recognize" the Union.
McElroy told the employees that neither he nor White had been told what
promises the Company had made, that this meant to him that the Company was
"just denying to go through the Union ," that May "kind of threw down the gaunt-
let and said he wasn 't going to raise the money items." McElroy charged that May
had "decided to go round the Union , they weren 't going to have anything to do
with the Union at all . . . that the Company was going to deal individually" with
the employees , i.e., by saying that the men had been told what they would be paid
and that was what they were going to be paid . McElroy characterized May's posi-
tion as a "direct challenge to the Union ." As McElroy put it at the hearing, "Mr.
White and I saw this thing pretty closely together , that the Company was more or
less refusing to bargain in good faith on the wages, and that is what he said to the-
membership." 25
25A representative of the Brewery Workers named Chandler was present and spoke at the
evening meeting . Chandler was also outside the plant the morning the strike began. I do
not credit testimony that Chandler was introduced as a representative of the Aluminum.
Workers, the Union herein.
MAY ALUMINUM,' INC. ^- i 589
A motion was made to give the executive board the right to set the date of a
strike, if one was called, and it carried' unanimously. A writen strike vote was taken
and the vote was 88 to 2 in favor of striking.
On the afternoon of March 25, the date of the last company- union meeting
before the strike, White called the Mediation Service and asked that arrangements
be made for a meeting with the Company as quickly as possible. White was told
on April 2 that there was a scheduling problem, that the Company's attorney was
involved in litigation. (No attorneys had been present at any of the previous meet-
ings. ) On the morning of April 7, White notified that a meeting had been sched-
uled for April 15. White asked that the Company be made aware of the seriousness
of the situation, stated that the Union had to take some kind of action, that it
could not wait 3 weeks for another meeting (March 25 to April 15) and requested
that efforts be made to get a meeting before April 15.
On the afternoon of April 7, Local President McElroy called a meeting of the
Union's executive board for 6 p.m. White called the International and was told
that it would not sanction a strike unless White asked the Company for a meeting
the next day and "tried to get something settled."
White called Personnel Manager Burgess and explained that the Union would
have to get the "thing" settled the next day or it would take the employees out on
strike on Friday, April 9. Burgess said that he would talk to President May and,
shortly thereafter, Burgess notified White that the Company could not meet the
next day because its attorney could not be present. There is no evidence that the
Company suggested that it might be able to meet before April 15, the meeting date
arranged by the Mediation Service. White told Burgess that a strike would prob-
ably begin the next day.
White explained the situation to the Union's executive board when it met at 6
p.m. and a formal motion to strike was made and the Board voted to strike the
following morning. A picket line appeared at the plant at about 6: 30 a.m. on
April 8.
2. Company statements the first day of the strike
About 6:50 a.m. on April 8, Local President McElroy told Die Shop Supervisor
James Boren that he wanted to take his tools out and Boren said "O.K." but that
they would have to be checked. As McElroy was collecting his tools, Boren came
by and said that if the men took their tools out, they "couldn't come back." Boren,
a witness for Respondent, testified that he called President May about checking the
tools and May told him that he should tell the men that "if they took their boxes
out that they would not be bringing them back" and that he [Boren] told the men
"exactly what [he] had been instructed to tell them." 26
Shortly thereafter, President May came into the shop and said to the group, "If
you take your tools out you are not coming back . . Just go ahead and get out
anyway, especially you," the latter remark being directed at Local President
McElroy. According to Emmett Coufal, May said that "Anybody who takes his
tools out isn't coming back."
About 5 minutes before 7 a.m., President May went outside the plant and spoke
to some of the employes standing along the public road in front of the plant.
Employee Joskie Jenkins testified that May said that the men who did not work
that morning "were fired." White was also present and heard May say that it was 5
minutes before 7, followed by some words which White could not "quite hear."
White then heard May say, "You have had it. You are through" and saw May
make a gesture with his hand.27
The only serious conflict in the evidence concerning the above incidents is May's
original claim that he told the men that they would be "replaced." However, he
later admitted that he did not know whether or not he used the word "replaced." I
note that Boren's testimony establishes that May did not use the word "replaced"
when telling Boren what to tell the men. In view of the foregoing facts, I do not
credit May's testimony that he merely warned the men that those who went on
strike would be replaced.
20 Respondent admits that Boren is a supervisor within the meaning of Section 2(11)
of the Act.
n It may be that Jenkins and White heard different statements or it may be that when
Jenkins quoted May as saying that the men who did not go to work were "fired," he was,
without realizing it, not using the word used by May but his own interpretation of May's
words ; I.e., that the men were "through."
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
May's original testimony on this subject indicates a willingness to testify to state-
ments which he did not make but which he believed, at the time of the hearing,
would have been permissible. May's willingness to testify contrary to fact in an,
effort to avoid an unfair labor practice finding is one of the reasons why I have
discredited other portions of his testimony.
White laughed at a remark made by May and the latter asked if White saw
"something funny around here?" White answered, "Yes, I see something funny
around here. Now, you asked for a fight and you have one." May replied only,
"You are goddam right I did." 28
3. The end of the strike
Union Representative White presided at a union meeting on April 22 29 White
asked the employees for authority to handle the situation as he and an attorney
saw fit and there was no objection. He did not mention the possibility of an uncon-
ditional offer to return to work but he had stated on several occasions that, in
order to be protected, the employees had to make an unconditional offer to return
to work.
At a company-union meeting on April 27, the Union read and then handed the
Company the following letter signed by Union Representative White:
I have been authorized by the membership of Local 201, A.W.I.U. and by
all the striking employees of May Aluminum, Inc. to make an unconditional
offer to return to work for each individual employee.
I therefore make this unconditional offer for each striking individual
employee to return to work at May Aluminum, Inc.
Company Attorney Crowther asked if White had the authority to make the offer
on behalf of each individual employee and Union Attorney Crawford answered in
the affirmative. Company Attorney Crowther said that the only "bona fide" offer to
return to work would be made when the strikers reported to the plant. May replied
that he would reinstate all of the men who had not been replaced but added, "I
will not put any of the die repairmen back that sabotaged us, and I will not put
anybody to work that is guilty of violence on the picket line or making threats on
the picket line 30 (All of the Union's officers worked in one of the die shops.)
There is no evidence that there was any picket line violence or threats.
The Union requested a list of the employees just before the strike, their job clas-
sifications , rates of pay, and dates of hire. One of the reasons for the request was to
enable the Union to determine whether the strikers were being returned to their
former, jobs. According to Personnel Manager Burgess, the Company replied that
the Union ought to know who was on strike. Burgess said that he would prepare
the list as quickly as possible, did prepare the information, and gave it to the com-
pany attorney 2 or 3 weeks later. A list of names, rates of pay, dates of hire, but
not job classifications, was given the Union about July 1; i.e., a little more than 2
months after'the request and a few days before the hearing opened.
At the company-union meeting on April 27, the Union agreed to make every
possible effort to tell the strikers that the strike was over and to return to the plant
and see Personnel Manager Burgess. White spoke on the radio and perhaps put a
notice in the local newspaper. He gave the same instructions to employees who
came to the motel where he was staying and those who attended a union meeting 2
nights later.
Before 6 p.m. on April 27, the Company handed the following telegram to West-
ern Union at El Campo and it was sent to 128 employees; i.e., all or most of the
employees who had not worked during the strike: 31
We have been told that the strike is over. Please report in person to Ralph
Burgess, personnel manager, by 3 p.m. on Thursday, April 29, 1965, or we will
assume that you do not want to be reinstated.
29 In its brief, the Company quotes White's remark but not May's
As noted supra, McElroy had found a job elsewhere and had resigned as president
of the Local. The vice president of the Local was late arriving at the meeting However,
the secretary-treasurer was present when the meeting began
30 The above findings are based on White's credited testimony. May's contrary testimony
is discredited.
'a There Is Insufficient evidence in the record to justify a finding that the Union knew
how the telegram would be worded or that it even knew that notification would be by tele-
gram. White indicated at one point that he understood the strikers would be notified by
registered letter.
MAY ALUMINUM, INC. 591
Personnel Manager Burgess testified that when the men came in, he asked, them
if they wanted to come back to work and they said that they did. He told them that
he had not had time to determine what jobs were still available, that he would
have that information on Friday (April 30) and to see or call him on Friday and
he would tell them if a job was available and, if so, what shift to report to on
Monday, May 3. Most of the strikers did talk to Burgess or some other company
representative and were fully reinstated. According to the Company, the jobs of a
comparatively small number of strikers had been filled and they were told that they
would be offered employment as new employees when jobs became available.
On May 5, 2 days after most of the strikers returned to work, the Company sent
a second telegram to 20 strikers; i.e., most of those who had not been reinstated. It
was signed by Personnel Manager Burgess and read:
Regards reemployment with May Aluminum. Please report for work eleven
p.m. May 6, 1965. If unable, contact me in person no later than three p.m.
Friday, May 7, 1965 or we will assume you are not interested in employment
at May Aluminum or elsewhere at this time.32
The men who received the May 5 telegrams and reported as instructed were
hired as new employees on or about May 6; i.e., they were assigned to the ship-
ping department at the starting rate of $1.25 per hour and without seniority or any
previously accumulated benefits. Others were offered employment as new employ-
ees during the course of the hearing.
The strikers whose reinstatement is in issue are listed infra.
H. The events in the course of the strike
1. The company-union meetings during the strike
Two company-union meetings were held in the course of the strike. At the first,
on April 15, the Company was represented by President May and Attorneys Crow-
ther, Willis, and Duckett. Union Representative White and Local President McElroy
again - represented the Union. The Mediation Service was representd by a Mr.
Kincaid.
At Kincaid's suggestion , the parties started going through the proposed contract
again to determine which clauses had been agreed to and which remained in dis-
pute. When the checkoff clause was reached, May said that the answer was a "flat
no." White pointed out that, at an earlier meeting, May had suggested a "trade"
and had offered a checkoff if the employees paid the cost. May did not deny
White's statement but repeated that there would be no checkoff.
May stated that he had not agreed to departmental seniority and White reminded
him that he had agreed to make departmental seniority lists available to the Union
and asked if May, nonetheless, was saying that there was no agreement on depart-
mental seniority. May answered that there had been no agreement and it was dis-
covered that at least some of the hours of work section were still in dispute. May,
on the other hand, understood that the Union had agreed to provisions which White
said he had not agreed to.
The parties met again on April 20. This time the Company was represented by
President May, Attorney Crowther, and Personnel Manager Burgess. The Union was
represented only by White. Willis Ray was present from the Mediation Service.
The parties "started in where [they] left off" on April 15 and went through the
rest of the Union's proposed contract. A question arose about the effective dates if
all terms were agreed upon and it appeared that there might still be some dispute
about the lines of progression in the die shop.
The Company submitted a number of counterproposals. Some of them do not
seem to differ materially from clauses submitted by the Union. However, others
differed materially. For example, the Company proposed the following clauses:
Management Rights
The Company retains the right to manage the plant and direct the working
force, subject only to the terms of this agreement. Unless this agreement spe-
89 Some of the telegrams directed the recipients to report to work at 3 p.m. on May 6.
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cifically restricts the right of the Company to act in a particular regard, the
Company shall be free to take such action as seems appropriate.
The exclusive rights of management shall include, but not be limited to, the
following:
The right to plan, direct, schedule and control the plant operations;
to assign and schedule work to employees; to transfer temporarily or
permanently; to hire; to promote; to demote, discipline, suspend or
discharge; to establish and fix the daily and/or weekly schedule of
hours of work of the working force, including shift beginnings; to
make and enforce shop rules; to make and enforce safety rules and
practices; to carry out the management of the plant; to relieve
employees from duty because of lack of work or any other legitimate
reason; to introduce new production methods, materials or facilities,
or to change existing production methods, materials or facilities; and
to subcontract or to terminate any or all of the production operations
of the Company's El Campo plant.
Sub-contracting
The Union recognizes the right of the Company to make subcontracts for
the performance of work normally performed by employees who are members
of the bargaining unit covered by this agreement. The Union recognizes further
that the Company shall have the right to sub-contract such work without the
necessity of bargaining with the Union, so long as the Company's decision
is made in the exercise of its business judgment.
Seniority
If an employee is promoted to Foreman out of the bargaining unit covered
by this agreement, he shall retain his seniority in the unit indefinitely and con-
tinue to accumulate plant seniority throughout the term of his employment as
Foreman. If a Foreman is laid off as a supervisor, he shall have the right to
claim such job in the bargaining unit to which he may be entitled by virtue of
his accumulated seniority.
Discipline and Discharge
It is understood that one of the rights of the Company shall be to demote,
discipline, suspend or discharge for just cause. When an employee is disciplined
or discharged under this section, the Union shall be given notice that such
action has been taken. Any employee who desires to contest disciplinary action
taken under this section must do so in writing within five (5) work days from
the date of such discharge or disciplinary action. Any grievance filed under this
provision shall be handled initially at Step 2 of The Grievance Procedure.
New Processes
Section 1. If, in the future, the Company places in operation materially
different types of machinery, apparatus, equipment or new processes which
necessitate the installation of new job classifications or the making of major
changes in the present job classifications, the Company will establish wage
rates for such new job classifications. It is understood that such new rates will
be in proper relationship to the wage rates of other job classifications in the
plant within thirty (30) days after such new or changed types of machinery,
apparatus, equipment or new processes are placed in operation. In the event
that no new rate is established, or in the event that the Union considers the
newly established rate improper, the Union shall within thirty (30) days there-
after file a complaint with the Company, and such complaint shall be processed
initially in the third step of the regular grievance procedure. When the Com-
pany has permanently set a rate for a new or changed job, or when such a
rate has been determined by recourse to the grievance procedure, such rate
shall be made effective as of the date the new or changed job was placed in
operation.
Section 2. It is understood that the provisions of this article are applicable
only to the determination of rates and that this article in no way limits the
i
MAY ALUMINUM, INC. 593
right of the Company to place into operation materially different types of
machinery, apparatus , equipment or new processes.
Section 3 . Any experimental project operating over ninety (90) days shall
be subject to rate establishment as provided in this article.
2. The State court action
On or about April 19, the Deputy Sheriff of Wharton County , Texas, served
papers on Union Representative White entitled - In the Matter of Perpetuating the
Testimony of Orion D. White. The papers , which were issued by the clerk of the
District Court of Wharton , sought to require White to give a deposition and in
support of its petition the Company alleged that White, as an organizer for the
Union, was responsible for damages and losses to the Company by making illegal
statements and engaging in illegal acts which were responsible for the illegal strike
and illegal picketing being conducted by the Union . It was also alleged that the
Company "anticipated " that White had sought to cause a secondary boycott and
had "caused to be published and circulated a false statement accusing the Company
of violating the law."
In addition to the taking of White's testimony , the petition sought to require him
"to produce all books, papers , documents , notes, memorandum correspondence and
so forth with any and all of the Company 's employees in connection with such
activities , strike, and picketing."
There is no evidence that White 's deposition was taken in fact or that he produced
the documents described above.
1. The poststrike company-union meetings
1. The meeting on April 27
As stated supra, the picket line was withdrawn on April 27 and at a meeting that
morning, the Union gave the Company a letter signed by Union Representative
White in which he stated , infer alia, "I . . . make this unconditional offer for each
striking individual employee to return to work . .
At this meeting , the Union was represented by White and two attorneys , Mandell
and Crawford . The Company was represented by President May and Attorney
Crowther. Personnel Manager Burgess was present during part, but not all, of the
meeting. A Federal mediator was also present and the meeting was longer than
usual with one or more recesses.
Union Attorney Crawford and President May "got into a pretty good argument"
about wages and May stated , as he had done on March 25, that he "wasn 't going
to give a damn cent increase " and that he "wasn't going to a damn thing except
what he had done in the past." 33 May admittedly asserted that the Company would
give a raise when it was "able" but when Crawford asked if May would be willing
to submit that offer in writing , May replied, "Hell, no." Crawford asked several
times if the Company was claiming "inability to pay" and May admitted , in effect,
that he replied on one occasion that it was "none of [the Union's] goddam busi-
ness. " As he stated as the hearing, "I thought it was." 34 May admitted that on
another occasion he said that he would not grant a wage increase but did not say
why and at another point , May mentioned the Company 's competitive position. It
was during this meeting that Union Attorney Crawford asked what percentage of the
employees were in each pay range ; i.e., $1.25-$1.35 , $ 1.35-$1 .45, etc.
The union representatives referred to the Company 's counterproposals on sub-
contracting (supra) and pointed out that, if agreed to , they would mean that the
Company would have the right to subcontract "the whole shebang" without notice
and bargaining and to agree to such a clause would "be the same as decertifying"
the Union . The Company answered that it was not going to contract all of the work
but when White asked May to say so in writing, May refused.
The discussion of subcontracting plans dealt with the work of the die and die
repair men in particular and to some extent the foundry employees and the truck-
a' When asked if he had said , "We won ' t pay you a damn cent ," May answered, "It's
possible I don 't know I don't have my notes with me "
84 May claimed that he said at one meeting that he was not claiming inability to pay
but could not recall at which meeting he made this statement If May had made this state-
ment , I believe that he would have been able to say , at least generally , when he did s.
25 7-5 51-6 7-v o f 16 O-3 9
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
drivers; i.e., the men in the delivery department.35 May claimed that the costs in
the die and die repair shops had practically doubled, quoted some figures, and may
have repeated his earlier remark that the die men had "sabotaged" him. May
explained that the plan to subcontract some of this work would reduce the number
of employees in those shops but that the shops would not be done away entirely.
May testified that the number of men in the die shops had in fact been reduced
by about 40 percent, partly because more dies were being purchased and the sup-
plier was furnishing a man to keep them repaired. Union Representative White
testified that the Union never agreed that the Company could make these changes.36
May stated, sarcastically, that because of Attorney Crawford's ability to sum up
the situation, it was too bad that Crawford had not been presented at the earlier
meetings. May also referred to White as a "jackass."
Either at this meeting or the one on May 4, Attorneys Crowther and Mandell
agreed to meet in Houston to try to work out an agreement on seniority and per-
haps other matters still in dispute.
2. The meeting on May 4
At the May 4 meeting, the Union was represented by White and Attorney Craw-
ford and the Company by May and Attorney Crowther. Burgess was present but
perhaps not during all of the meeting.
At the outset of the meeting, May made the "flat statement" that the Union
did not represent the employees, told May that he was nothing but a labor "thug"
who was in El Campo to build up his own "empire" and who enjoyed living at
the local motel.37 White expressed resentment at May's remarks but the latter
answered that he did not give a "damn" about White's reaction. Union Attorney
Crawford "intervened" and made it plain that the Union was the representative of
the employees.
There was considerable discussion about the Company's liability to the strikers
and the Union took the position that this was a matter governed by the Act and
that it would insist that the strikers recover the entire amount to which they were
entitled.38 Union Attorney Crawford and President May got into a heated discus-
sion in which Crawford asked what century May thought he was living in and made
other "derogatory" remarks about May. The record does not disclose what the
other remarks were.
When the subject of wages was raised, May repeated that he was not going to
give a "damn" cent, that be had promised the employees what he was going to
pay them, that neither this Union nor any other "damn" union was going to make
a liar out of him. Later, May said, in a heated discussion with Crawford, "If I
can't raise these people like I told them I was going to, I will . . . and bark like
a fox." Crawford told May to give it a try. Crawford said that the employees were
going to make less money after they voted for union representation than before
because they would have to pay union dues and May stated that this had been
the Company's "contention all the time." After a recess, May said he would increase
the third shift premium by 3 cents and that he would consider giving a checkoff
on a limited basis; i.e., that the checkoff would be revocable.39
a5 Although there is some conflict in the testimony about whether subcontracting, for
example, was discussed at the April 27 or May 4 meeting, it is clear that the discussions
took place at one of those meetings ; I e., after the strike ended.
36 Neither the charges nor the complaint contains allegations that the Company violated
the Act by making the above changes ; i.e., without notice to and bargaining with the
Union.
as May testified that he pointed out at one meeting that no employee had been present
at the recent negotiating sessions and that the Union had claimed that it was democrati-
cally run
38 May testified that the Union asserted that it was not going to give up any of its legal
rights and, in effect, said it was going to snake it as "damn rough" on the Company as it
could He agreed that it was "possible" that the Union pointed out that the rights of the
strikers were individual rights which the Union could not bargain away. May's answer
was that the Union had claimed earlier that the employees ceased to have individual rights
with respect to wages when they voted for union representation . When May was asked if
he stated that be could not negotiate until be knew the Company 's liability with respect
to the strikers, he answered, "I don't think that's correct."
39 It seems probable that both offers were repetitions of offers made previously . See supra.
MAY ALUMINUM, INC. 595
The parties also discussed the fact that die-repair men Coufal, Mach, and Piep-
per had returned to work as metal checkers and May said that "As of right now
these [men] are in the Engineering Department." This department is not within
the bargaining unit and Crawford characterized May's statement as a "unilateral
act." May's position was that he had a right to move employees as he wished.
Crawford insisted that such a transfer, i.e., removing employees from the unit, was
a bargainable matter. May told Crawford that as "sure as hell" he was not going
to negotiate with the Union about the removal of men, saying, "I have already
moved these people into the Engineering Department." 40 As May put it at the
hearing, it was his belief that the Company was free to shift a man "As long as
we have no contract ." According to White, the Company and Union bar-
gained about the transfer if bargaining consists of a statement by the Company
of what it was going to do.
The Union also mentioned the fact that the leadman in the die shop at the
beginning of the strike had been told that he would have to come back as "strictly
a die repairman." In May's words, he replied that the Company had constantly
moved men out of the bargaining unit right along, such as moving them into the
office, and made it clear that it intended to continue to do so.41
The Company handed the Union some more counterproposals but after looking
them over, White commented that they amounted to little more than a restatement
of matters which had been agreed to previously.
Later on, Crawford commented that May had repeatedly referred to the contract
between the Company and the Machinists in Houston and offered to take that con-
tract and change the name of the union and the dates and agree to it. May started
looking through the Houston contract and began pointing to things in it that he
objected to and that would have to be changed, such as the checkoff provision and
the rates of pay. Either in this connection or independently, a question was raised
concerning the effective dates of the contract with the Company wanting one date
and the Union another.
Finally, Union Attorney Crawford commented that it seemed that the only thing
the Union could do was to exercise its legal rights.
3. The meeting on June 23
At the Company's request, a meeting was held on June 23 with White and
Attorney Crawford representing the Union and May and Attorney Crowther repre-
senting the Company. Federal Mediator Ray was also present. A question had arisen
about making a payment from the Company's profit-sharing plan and the Union
agreed, in writing, that the payment could be made.
May raised the question of giving the employees the promised, periodic raises.
The Union would not agree to the payment of the raises and May said that they
would be paid retroactively when a contract was signed. When the Union offered to
discuss wages generally, May repeated that he was not granting a "damn penny"
general increase . Other issues still in dispute, such as seniority and subcontracting,
were mentioned but no new agreements were reached. The Company again offered
a revocable dues checkoff and indicated that it might make further counterproposals.
Union Attorney Crawford asked the Company to include an exact statement of the
periodic wage "pattern." At the close of the meeting, Federal Mediator Ray told
President May that the Union felt "at that time" that there was no need to meet
again.
to I do not credit May 's denial that he said that Coufal, Mach, and Piepper were in the
engineering department "as of right now" and that , therefore , he did not have to bargain
concerning their terms and conditions of employment . May conceded that the men were in
fact assigned to the engineering department whereas they were hourly paid , unit employees
before the strike and quoted himself as saying that men were constantly being either moved
or promoted out of unit jobs, such as to jobs in the office , and that he had never bar-
gained in the past about such matters and did not feel that he "had to here ." According
to May, the men were given different jobs because "some" of their jobs were filled. The
question , however, is not their job titles but Respondent 's announcement that their job
classifications were no longer in the unit
u At one point, May testified , "we hired a man from Dallas to take over as leaderman"
and a few minutes later stated that the Company did not have a die leaderman after the
strike.
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In sum , at the close of the last bargaining session , tentative agreement had been
reached on most of the noneconomic clauses except the various aspects of seniority,
checkoff, subcontracting, plant closure, and management rights generally. No agree-
ment had been reached on any of the major money items; i.e., wages, holidays,
insurance, and vacations.
At the hearing, May asserted that there was "evidence enough" that the Com-
pany did not have the time and money to spend dealing with a union, that negotia-
tions were "very, very, very costly" in time "spent and wasted" and that he would not
have gone through the negotiations for ten thousand dollars. May claimed that the
Company changed its position on a "lot of things," that he "felt" that the Company
"had given an awful lot," that it "had given until it hurt" but that he still had not
found one thing in any of the testimony where [the Union] ever gave one thing."
(Cf. May's earlier statement with respect to economic matters, at least, "I would
say the give was very likely more or less equal between the Union's position and
[the] position we took.") At another point, May said that the Company had
"agreed to practically everything [the Union] asked us."
May admitted that he had "used language" indicating his belief that the Union
was not "overly interested in the employees," that he had used "many times" the
example of an insurance agent who is "not worried particularly" about a policy-
holder's wife and children but is interested only in getting his commission. When
Union Attorney Crawford asked if the Union had not stated, in connection with
subcontracting, that if the Company would explain its costs, the Union would try
to help reduce them, May answered, "Oh, I think you made some kind of -a crack
along those lines. I never considered it very seriously." He then added, "Most of
the things you brought up I didn't consider very seriously."
May also admitted that once, when he was discussing the negotiations with
McDermott, the Company's former personnel manager, he told McDermott:
that it's too bad that I had never been able to sit down and talk to Mr. White
where I could talk to him and go over some things that we had that [he] did
not know, that we did not care to discuss in the negotiations . . . . I felt that
if I could have sat down and talked to [White] he would know more about
our position as individuals, not to be brought out in negotiations, that I didn't
expect it to be brought out here ... .
J. The Company's statements to employee Cisneros
John N. Cisneros was a press operator before the strike and his base rate of pay
was $1.40 an hour. He served on the picket line and was fully reinstated. According
to Cisneros, about 3 weeks or a month after the strike ended, i.e., sometime in May,
Supervisor Lincke asked Cisneros how his "vacation" was and the latter answered
"Just fine." Cisneros testified that Lincke went on to say that the employees had
made a "big mistake" by striking, that he knew President May better than anyone
else, that he knew that May would never sign a contract with the Union, that when
the employees struck, they lost all of their rights and that their "chances of going
up with the company were very, very slim." 42
Lincke, who had worked for the Company since 1953 and said that he was not
a talker but meant what he said, denied having made most of the above statements
and said that he could not remember having made others. He testified that Cisneros
"probably" started a conversation about the proposed repeal of Section 14(b) of
the Act but claimed that he could not really recall what was said because it was
"too far back." When asked on direct examination if he and Cisneros had any dis-
cussion about the Union or the union contract with the Company, Lincke answered,
"It might have been. I don't know. It's been a pretty good length of time;" i.e.,
mid-May to July 13. He was then asked if he recalled anything specifically that
was said and he replied, "It'could have." The next question was whether he remem-
bered it "at this time" and his answer was, "I wouldn't know." He was asked if his
testimony was that he said nothing about the strike being a "big mistake" and he
answered, '1 would say so."
Later, Lincke said that he did not know for sure how the conversation with
Cisneros began and did not remember everything that was said and repeated that
it had been too long ago. His answers were often that he did not think he made
the statements attributed to him by Cisneros. Although Lincke is a supervisor, he
42 Respondent 's answer admits that Lincke Is a supervisor within the meaning of Section
2(11) of the Act.
MAY ALUMINUM, INC. 597
claimed that he had nothing to do with promotions but added, "Well, we usually
take, I would say the Company ... takes a guy that is capable of doing the job."
He asserted that he "really" did not know the Company's promotion policy, that he
had not been told about it "directly."
In its brief, the Company argues that Cisneros "promoted" the conversation with
Lincke, that Lmcke is a "no-nonsense" foreman who was not in the habit of engag-
ing in idle talk with the employees and that the date of the alleged conversation is
"illogical." It is clear that there was a conversation involving labor matters and it
would not be illogical for references to be made to the employees ' own union activ-
ities. Moreover, by late May, negotiations had been going on for about 5 months,
with no prospect that a contract would be signed, and a number of employees had
not been reinstated at all and others had been hired as new employees which meant
that they had lost their seniority and other rights. Having considered these facts
together with Lincke's alleged inability to recall what was said, his alleged lack of
knowledge of the Company's promotion policy, the indirect nature of many of his
answers, and his unconvincing demeanor while testifying, I do not credit his testi-
mony and conclude that he made the statements attributed to him by Cisneros.
Employee Richard Strelic, another striker, had 7 fewer months of seniority than
Cisneros. In June 16, Strelic was made a metal checker which carried a salary of
$325 per month. According to Cisneros' undisputed testimony, he had worked
"around the press" longer than Strelic and he felt that he should have been given
the job. In a conversation with Extrusion Superintendent Daniel Krenek, Cisneros
asked why he had been "skipped over" for promotion 43 Krenek told Cisneros that
the Company felt that he did not have the ability to be a metal checker. Cisneros
inquired how a man who had been around the press such a short time and with less
experience could be better qualified and expressed the opinion that if he had been
"skipped over," it was because he had gone on strike. Krenek reminded Cisneros
that nobody asked him to strike, that he did so of his own free will, and if he had
wanted a job, he could have crossed the picket line, asked for a job in the die shop,
and he would have got it. Krenek also observed that when the employees had to be
represented by a Union they "weren't worth -a damn," that he had made it where
he was on his own ability. He suggested that Cisneros could see Personnel Manager
Burgess or Plant Superintendent Gibson.
Krenek sent for Cisneros because it had been reported to him that Cisneros had
indicated he was going to quit by asking for his two checks on Friday.44 Krenek
said that Cisneros could have the checks if he wanted them. Cisneros explained
that he did not want the checks, that he was merely asking if he could have them
if he wanted them.
A comparison between the testimony of Cisneros and Krenek shows that there
are few material conflicts in their testimony. Krenek admitted that Cisneros told
him that he did not want his checks but was asking if he could get them if he
wanted them.45 Krenek claimed that he reminded Cisneros that Strelic had also
gone on strike and that the fact that Cisneros had been a striker was immaterial.
Krenek agreed that he told Cisneros that the jobs were open during the strike and
were "open" to Cisneros if he had applied. He said he could not remember whether
the subject of crossing the picket line was mentioned but conceded that he said
that a "fellow" has to do things for himself and he felt that he was capable of rep-
resenting himself.
K. The Company's letter of June 30 and the information furnished on July 1
By letter dated June 30, Company Attorney Crowther notified Union Repre-
sentative White that in response to a request that the Company submit its position
in writing on "some" of the questions discussed during negotiations , he was advising
White that:
(1) The Company was interested in seeing that the employees got their
periodic increases , that it would be willing to make them retroactive , that it
43 Krenek's supervisory status is admitted.
44 When an employee quits, the Company usually holds one check until the following
week.
45 The office employee testified that Cisneros asked for his checks whereas Cisneros said
that he asked only if he could have them if he asked for them. It seems probable that the
office employee misunderstood Cisneros' question for Krenek conceded that Cisneros told
him that he had not asked for his checks.
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would put its practice in writing but that it could not agree to "any further
wage increase at this time."
(2) The Company's position on subcontracting and plant closure had not
changed; the Company's counterproposals on these subjects were restated.
(3) The Company would agree to a revocable dues checkoff.
(4) The Company would agree to a "seniority provision similar to that con-
tained in the former Houston contract, subject to such modifications as may
be required to fit present operations."
(5) The information regarding the profit sharing plan was being prepared
and would be sent the Union within the next day or so.
With a covering letter dated July 1, Company Attorney Crowther sent White a
summary of the profit-sharing plan and a list of employees showing dates of hire
and wage rates but not classifications. The information was based on the Com-
pany's last payroll before the strike Personnel Manager Burgess said that he could
not recall giving the Union any information about the Company's insurance plan.
The letter asserted the belief that the information enclosed "completes the informa-
tion requested" and ended with the statement that the Company understood that
the Union would notify the Company through the Mediation Service if it desired
further bargaining sessions . No information about the periodic increase "pattern"
was included.
L. The strikers who, allegedly, were not properly reinstated
1. The General Counsel's contentions
About 140 employees went on strike and many, if not most, of them did picket
duty. About 12 strikers returned to work before the picket line was withdrawn on
April 27. Some of the strikers were replaced during the strike and the new employ-
ees were told that, as far as the Company was concerned, they were permanent
hires.
The General Counsel's basic contention is that the strike was caused and pro-
longed by the Company's refusal to bargain, that it was therefore an unfair labor
practice strike which means that the fact that some jobs had been filled is no defense.
In some cases, the General Counsel contends that the employees either failed to
get the Company's telegrams or got them too late to report to the plant by the
deadline stated in the telegrams. The facts with respect to the employees whose
reinstatement is in issue are set forth below.46
2. The strikers whose jobs had been filled and who were
hired as new employees
It was stipulated that replacements for the strikers listed below were hired during
me strike and that the men named were hired later as new employees, i.e., they
were assigned to the shipping department at $1.25 an hour and lost all benefits they
may have accumulated as of April 7, the day before the strike began. Most of the
other facts set forth in this section are also based on stipulations.
Frank Foisner: On April 7, Foisner was a stretcher helper and his rate of pay
was $1.275 per hour. He received the April 27 telegram and was hired as a new
employee on May 8. His rate of pay was increased from $1.25 to $1.275 on
May 14.
Godfrey Garza: On April 7, Garza was a stretcher helper and his rate of pay
was $1.35 an hour. He received the first telegram and returned to work as a new
employee on May 7. His rate was increased from $1.25 to $1.275 on May 10.
Joskie Jenkins: On April 7, Jenkins was a buffer and his rate of pay was $1.35
per hour. He received the April 27 telegram, reported to the plant, was told his job
was filled, and that he would be notified if there was an opening. He received the
May 5 telegram and returned to work as a new employee on May 10. He was ter-
minated on June 16 and the Company's liability, if any, ended on that date.
Donald Jones: On April 7, Jones was a finish-saw helper and his rate was $1.325
per hour. He was hired as a new employee on May 10. His rate of pay was
increased from $1.25 to $1.30 on May 31.
^ The names of Sylvester Arrambide, Emmett Coufal, David Estrello, and Bernard Mach
were stricken from the complaint on the motion of the General Counsel.
MAY ALUMINUM, INC. 599
Richard Jones: On April 7, Jones was a die-shop employee and his rate of pay
was $1.925. He was hired as a new employee on May 10. His rate was increased
from $1.25 to $1.275 on May 31.
C. L. Miller, Jr.: On April 7, Miller was a buffer and his rate was $1.325 per
hour. He returned to work as a new employee on May 7. He was terminated on
June 17 and the Company's liability, if any, ceased on that date.
Joe Nunez: On April.7, Nunez was a fabrication- general laborer and his rate
was $1.275. He was hired as a new employee on May 6. On May 17, his rate of
pay was increased from $1.25 to $1.275.
John Nunez: On April 7, Nunez was a billet-loader and his rate was $1.275 per
hour. He was hired as a new employee on May 8. His rate was increased from
$1.25 to $1.275 on May 10.
Baldermo Vallejo: On April 7, Vallejo was a drill press operator and his rate was
$1.35 per hour. He was hired as a new employee on May 7. His rate was increased
from $1.25 to $1.275 on May 10.
3. The other strikers not offered reinstatement
a. Dennis Edward Baros
On April 7, the day before the strike, Baros had worked for the Company about
a year, was a stretcher operator, and his rate of pay was $1.30 per hour. He was
living on West Fifth in El Campo. The April 27 telegram was addressed to East
Watt Street, El Campo, where he had lived earlier and it is clear that it was not
delivered to him.47 Baros had not notified the Company that he had moved; on the
other hand, there is no evidence that the employees had been directed to notify the
Company about changes of address. However, Baros had notified the local post
office that he had moved and the owner of the Watt Street address knew his new
address.
Baros readily admitted that he attended a union meeting on April 29 (after the
strike) at which Union Representative White told the men to go to the plant and
ask to return to work. However, Baros' 7-month old son was seriously ill, his wife
worked, and his mother had broken her leg. As a result, he was unable to go to the
plant until May 10; i.e., about 2 weeks after the strike ended. (He had no tele-
phone.) On May 10, he talked to Personnel Manager Burgess who said that Baros'
job was filled but that he would let Baros know if a job became available. (Respond-
ent did not claim at the hearing that Baros' job was filled between April 29, the
deadline stated in the telegram, and May 10.) Burgess also warned Baros that he
had lost his seniority and all of his accumulated benefits and that he would be
hired as a new employee.48 Burgess told Baros to fill out an application for employ-
ment as a new hire but Baros did not do so, his explanation being that he had
filled out an application when he was hired and saw no reason to fill out another.
He did give Burgess his new address.
Baros asked Burgess why he "didn't get a telegram" and Burgess said that the
Company had sent one and had not "got it back." Baros said he did not get the
telegram.
Baros testified that while he was talking to Burgess, he saw quite a few men who,
he thought, were being hired because "You could see they just came from .. .
having a physical because they had those little cotton patches on their arms where
they had taken their blood tests. Everyone takes a blood test and a complete physi-
cal." Although Baros thought the men he saw were being hired for the first time,
a number of strikers did return to work at about that time as new employees.
'' It was stipulated that the El Campo Western Union office manager , if called as a
witness, would testify that "several trips" were made to Watt Street and that a notice was
left there that there was a telegram for Baros at the Western Union office. There is no
evidence that Western Union asked whether Baros lived at that address and, if not, what
his new address was.
48 Burgess testified that lie could not recall having talked to Baros and expiersed the
opinion that if he had clone so, he thought lie would have recalled it However, in view of
Baros' testimony concerning what lie saw at the plant on May 10 (see supra ) and the
fact that so many strikers were coming in during this period that Burgess might not have
been able to remember each, I credit Baros' testimony
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Company records show that the May 5 telegram was not sent to Baros and
he was not offered a job until the hearing when he was offered a job as a new
employee. The record indicates that the Company has job openings frequently and
that summer is the Company's busy season.
b. Zeb William Bennett
Bennett was a finish-saw helper and his rate was $1.35 an hour. The April 27
telegram was delivered to his home on the afternoon of April 28 and left with his
8-year-old daughter. He was working elsewhere and did not get home until 10 or
11 o'clock that night and left at 4 o'clock the next morning. On his way home on
April 29, he heard that the Company had sent telegrams and when he got home he
asked if there had been a telegram and his wife said the child had brought her one
the day before 49
This was Bennett's first notice that a telegram had been sent to him and he called
Burgess between 4 and 5 p.m. on April 29, i.e., an hour or two after the deadline,
and asked if it was too late to get his job back. Burgess told Bennett that as far as
he was concerned, Bennett was too late but that he would consult the company
attorney. Bennett called about 5 p.m. and was told that the switchboard was closed.
He called Burgess the next morning and explained that he had received the tele-
gram "late," Burgess said that it was "too bad" because a lot of "fellows" had
received the telegrams late but that Bennett could come to the plant and fill out an
application for employment as a "new hire." 50 Bennett did not fill out an applica-
tion. Respondent did not claim that it had hired a replacement for Bennett in the 2
hours or less between the deadline and Bennett's telephone call.
Bennett was not among those to whom the May 5 telegram was sent and he was
not offered a job until the hearing at which time he was offered a job as a new
employee.
c. Norman Brandl
On April 7, Brandl was working in the shipping department and his rate of pay
was $1.25 an hour. He joined the strike and picketed two or three times. He
received the April 27 telegram by mail and went to the plant on April 28 51 Person-
nel Manager Burgess told Brandl that his job was filled and gave him an applica-
tion to fill out. Brandl did not do so. He denied that he received the May 5 tele-
gram which, it was stipulated, the Western Union office manager would testify was
mailed to Brandl. The stipulation did not state whether or not the telegram was
ever returned to the Company. Brandl lives with his mother and his brothers and
he asked each if a telegram had come and each answered in the negative. He does
not live near any of the strikers and did not know that anyone had received a
telegram on May 5 or 6. On May 6, Baros was working about 10 miles away from
his home and got home at 5:30 p.m. I credit Brandl's testimony that he did not
receive the May telegram and that he did not know that strikers were being offered
jobs during this period.
Brandl was not offered a job until the hearing when the Company offered to
hire him as a new employee.
d. Benito Delgado
Benito Delgado, who participated in the picketing, had worked in the window
department and his rate of pay was $1.30 per hour. He apparently heard that the
strike was over and it is undisputed that he went to the plant at about 4 p.m. on
April 27. When Delgado talked to Burgess either that day or a day or so later,
Burgess told him that his job had been filled and said that he could fill out an
application. Delgado subsequently filled out an application.
Delgado did not receive the May 5 telegram personally but his mother called
him at the ranch where he was working and he went to the plant on May 6 and
turned down a job as a new hire; i.e., in the shipping department at $1.25 per hour.
Burgess told Delgado that he would be assigned to the night shift to begin with.
49 The above facts are based on Bennett's credited testimony It was stipulated that
the Western Union official would testify that the telegram was left with Bennett's daughter.
60 Burgess testified that Bennett called on April 30, not April 29 However, I think that
Bennett, whose job was at stake, would remember the date on which lie called Burgess and
I credit his testimony. In any event, the Company does not claim that Bennett's job had
been filled between 3 p in. on April 29 and about 4 p m. on April 30.
51 It was stipulated that Brandl had no telephone and lived outside the Western Union
delivery area.
MAY ALUMINUM, INC. 601
Prior to the strike, Delgado had worked from 7 a.m. to 3 p.m., and he said that
he did not want to work nights. However, he told Burgess that he wanted his old
job back.52
e. Eliborio Delgado
Eliborio Delgado and Benito Delgado are brothers. At the time Eliborio Delgado
was hired, he apparently lived at the Divide Street address where Benito Delgado
and his wife lived at the time the strike ended. Also living at that address were
other members of the Delgado family including the father, mother, another brother
(Jesse) and the latter's wife, and a sister, Lucy Estrada. However, Eliborio Delgado
was living on Thrift Street at the time the strike ended. He did not notify the Company
about his change of address but, as indicated above, there is no evidence that the
employees had been told to report changes of address. It was stipulated that the
Western Union official would testify that the April 27 telegram to Eliborio Delgado
was delivered to the Divide Street address about 2:45 p.m. on April 28, and was
signed for by Mrs. Jesse Delgado. It was also stipulated that he would testify that
the May 5 telegram was delivered at the same time that the one to Benito Delgado
was delivered, i.e., about 9:30 a.m. on May 6, and was signed for by a sister, Mrs.
Lucy Estrada.
Eliborio Delgado worked in the window department and his rate of pay was
$1.30 an hour. He received the first telegram, went to the plant a day after the
strike ended and Burgess told him that his job was filled and that he would be noti-
fied if another job was available 53 Burgess told Delgado to make out an application
but he did not do so.
Delgado testified that he received only the first telegram. He was not working the
week of May 5 but could not recall whether or not he was at the Divide Street
house that week. He also testified that he could not recall having talked to his
brother, Benito Delgado, about the latter's telegram on May 6 and denied know-
ing that men were going back to work at that time.
I credit Delgado's testimony that he did not receive, in fact, the May 5 telegram.
I can believe that none of the numerous persons living at Divide Street took the
trouble to notify Eliborio Delgado that there was a telegram for him at Divide
Street, that none remembered to mention it if he came by that day or the next, and
that it got lost. A more difficult question is whether or not Delgado learned, prior
to the deadline stated in the telegram (3 p.m. on May 7), that his brother, Benito
Delgado, and maybe other strikers, had received a telegram on May 6 and had
gone to see Burgess. Since there were only 291/2 hours between the time Eliborio
Delgado's brother, Benito Delgado, received the May 5 telegram and the deadline
and in the absence of evidence that the two brothers saw or at least talked to each
other every day or two, I conclude that the record does not warrant a conclusion,
contrary to his testimony, that Eliborio Delgado must have known about his broth-
er's telegram on May 6.
It is clear that the strikers who received and responded to the May 5 telegrams
were not offered any reinstatement but only employment as new hires. It follows
that if Delgado had received the second telegram and gone to the plant, he would
have been offered only a job in the shipping department at $1.25 an hour, i.e., the
offer which was made to him during the hearing.
f. Ray field Gardner
Gardner was working in the foundry and his rate of pay was $1.25 per hour. He
received the April 27 telegram, went to the plant about 2:30 p.m. on April 29, and
13 The above facts are based in part on Delgado's testimony, much of it confused, in part
on the testimony of Personnel Manager Burgess, and in part on company records. It is
clear that most of the employees work "rotating" shifts ; i e , at nights for a number of
weeks and then during the day for a number of weeks. At one point, Delgado seemed to
be saying that this was not true of the employees in the window department In any event,
it is undisputed that Delgado was never offered a job in that department at his former
rate of pay. Neither telegram was delivered to Delgado personally. It was stipulated that
the Western Union official would testify that the first was read to Mrs. Benito Delgado
over the telephone and that the second one was delivered to Delgado's Divide Street address
at about 9 : 30 a in. on May 6 and was signed for by Mrs. Lucy Estrada, Benito Delgado's
sister.
93 Personnel Manager Burgess testified that Delgado responded to the first telegram but
not the second.
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Burgess told him that his job had been filled. Burgess told Gardner to call the next
day, Gardner called , and Burgess said he would notify Gardner when there was an
opening.
Gardner 's address was Route 3, Box 182, Wharton, Texas, and it was stipulated
that the Western Union official would testify that the telegrams were mailed to
Gardner.54 Gardner testified that the May 5 telegram was received at his home on
May 7 but that he was not at home because he was working at Lake Jackson, about
100 miles from his home. He usually came home Thursday (May 6) but did not
come home that Thursday. He got home between 6:30 and 6.45 p.m. on Friday,
May 7 and was given the telegram. He called the plant immediately and was told
that Burgess was not there . He called again on Saturday morning and Burgess was
still absent. Gardner said the "lady" he talked to asked if he wanted to leave his
name and telephone number and he in fact did so. She told him that she "would
have [Burgess ] call" Gardner just as soon as he came in. Gardner called again
at 4 p.m. on Saturday , was unable to talk to Burgess , and did not call again.
Burgess testified that he told the persons answering the telephone to tell the men
to call again and not to tell any of them that he might not get the messages or
might not be able to call . This seems a reasonable instruction but this does not
prove conclusively that Burgess gave those instructions and, more importantly,
Burgess was not present during the telephone conversations and therefore did not
know what Gardner and others were actually told. The switchboard operator or
whoever talked to Gardner was not called as a witness and no explanation was
given for Respondent 's failure to call her. Gardner 's testimony , therefore, is not
denied, except indirectly, and I credit it.
Personnel Manager Burgess testified that Gardner responded to the first telegram
but not to the second.
At the hearing, Gardner was offered a job as a new employee.
g. Geronimo Gonzales
Gonzales' address was Star Route, Louise , Texas. He was employed as a janitor
and his rate was $1.35 an hour. It was stipulated that the Western Union official
would testify that "telephone contact was established with a Mrs. Edwin Dornak
at 11:30 a.m. on April 28" and she assured Western Union that she would tell
Gonzales about the telegram and that a copy of the April 27 telegram was mailed
to Gonzales about 11:30 a.m. on April 28. It was also stipulated that the May 5
telegram was mailed to Gonzales on May 5.
Gonzales went to the plant on April 28, told Burgess that he "was reporting back
to [his] job" but Burgess said that his job had been filled and that there was no
opening. As Gonzales was leaving , Burgess followed him and told him he could
fill out an application but that the chances of being rehired were "pretty poor"
and that if he was rehired it would be as a new employee . Apparently , Gonzales
did not fill out an application.
When the May 5 telegram was delivered, Gonzales was on a trip and, as a result,
did not receive it until Saturday , May 8. He went to the plant that day but Burgess
was not there and he was told that Burgess would not be there that day. Gonzales
identified the person he talked to as "the girl working out there in the front office
down there where we have the telephone." He asked the "girl" to "please give
[Burgess] a message," i.e., that he was away when the telegram was delivered and
that he did not receive it until after the date stated in the telegram. The "girl" said
she would give Burgess the message.
Gonzales went to the plant on Monday, May 10. When Burgess asked Gonzales
why he had not come to the plant as directed , Gonzales said that he was in or
around New Orleans. Burgess repeated that Gonzales' job was filled but did not
repeat the statement that Gonzales could make out an application.
Gonzales testified that he made no arrangement for his wife to notify him if
"anything" came from the Company and did not call her.
In the course of the hearing, Gonzales was offered a job as a new employee 55
as Wharton is about 12 miles from El Campo and outside the El Campo deliver} zone.
65 Burgess testified that Gonzales came to the plant after the first telegram but was
late in responding to the one sent on May 5.
MAY ALUMINUM, INC. 603
h. Jesse Lopez, Jr.
Jesse Lopez, who was a picket captain during the strike, was a die head operator
and his rate of pay was $1.35 an hour. In the course of the strike he worked one
night but did not return to work the next night. He explained:
I was working the picket line, and I left the picket line and went home.
And I decided-the boys in the plant told me why didn't I go back to work,
kept talking to me, so I decided to go back. And then when I was there, when
I was crossing the picket line, I just didn't feel good, I mean , they were my
friends and I couldn't do that to them. But I was already there, so I worked
that night.
On the night Lopez worked, his supervisor, Leroy Shelton, asked why he was
there and Lopez explained that he "needed to work." That same night, Extrusion
Superintendent Krenek asked Lopez how he liked his vacation and when Lopez
said he did not know, Krenek observed, "it's not too good. I don 't believe it's right
that you ought to be out there like that. You aren't going to get anywhere." Lopez
replied that it was not a matter for him to decide. Krenek assured Lopez that he
could stay on and work but said he did a "crazy thing," getting involved in the
strike.
Lopez was back on the picket line the next afternoon and saw Shelton as the
latter was coming to work. It is undisputed that Lopez told Shelton that he would
not be working that night. When Shelton asked why, Lopez said that he "didn't
feel right" about working while his friends were outside. Shelton said only that it
was "up to Lopez."
Lopez testified, without dispute, that the night he worked, he did the job of a
man who was absent and that he was told lie would be found another job when
the employee returned.
Respondent's exhibits disclose that Lopez was not sent a copy of either telegram
and he testified that he did not receive either one. However, on April 28 he saw a
copy of the April 27 telegram sent another employee and called Personnel Man-
ager Burgess and told him that he could not come to work that day because he had
to take a friend to an eye specialist. Lopez said that he could come in the next
day and Burgess replied that it would be all right.
Lopez went to the plant on April 29 but Burgess told him he was "fired because
[he] had gone back to work one day and . . . had not reported it." When Lopez
said he had told Supervisor Shelton that he would not be back, Burgess said he did
not get a "note" about it. Burgess told Lopez that his job was filled, gave him an
application, and said he would be recalled as soon as there was an opening.56
Lopez filled out the application and tried to return it to Burgess but left it with a
secretary when he was told that Burgess was busy. Lopez went back to the plant
twice more but was told both times that Burgess was busy. During the hearing,
Lopez was offered a job as a new employee.
Respondent offered no explanation, either at the hearing or in its brief, for its
failure to send Lopez either telegram.
i. Michael Malandrakis
Malandrakis, who engaged in picketing, was a pullout man on the press (puller)
and his rate of pay was $1.25 per hour. The April 27 telegram was read to his
mother, probably the same day, over the telephone. Malandrakis was working in
the oil fields but he went to the plant on April 28. Burgess asked Malandrakis to
sign a list to show that he had come in. Burgess also asked if Malandrakis wanted
his job back, Malandrakis said he did and Burgess said that he would have to
check to see if Malandrakis' job was available. Burgess also told Malandrakis to
come by or call the next day and he would be told whether or not there was a
job for him.
According to Malandrakis, he called the plant the next day and was told that
Burgess was not in and Malandrakis left his name, address, and telephone number
and asked that Burgess call him. Having heard nothing from the Company, Malan-
drakis called the plant at least once and maybe twice thereafter but was told that
w The above facts are based on Lopez' undenied testimony.
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Burgess "was in conference or something like that," and again left his name. A
week and a half or 2 weeks after the strike, Malandrakis went to the plant but
was told that Burgess was busy and was asked by the receptionist if he would like
to fill out an application. As Malandrakis was filling it out, he saw Burgess and
asked him the date of the strike. However, neither he nor Burgess said anything
about a job. The first job offer to Malandrakis was made during the hearing and
was an offer to return to work as a "new hire." 57
As noted above, Burgess testified that he knew that there would be many calls
and told the receptionist who operates the switchboard not to take any calls but
to tell the callers to keep trying until they got him. But, as also noted above, Burgess
did not know what the receptionist actually told the callers and the latter was not
a witness nor did Respondent explain its failure to call her. There was nothing in
either Malandrakis' testimony or in his demeanor which would justify a refusal to
credit testimony which, I assume, could have been but was not refuted.
It is clear that Malandrakis' job was open and that he could have returned to
work on May 3 if he had been notified to do so 58
j. Lee Roy North
North, who served as a picket captain, was a stretcher operator and his rate
of pay was $1.35 an hour. He testified that he saw the April 27 telegram for the
first time about 10:30 p.m. on April 2859 He went to the plant about 5:30 p.m.
on April 29, i.e., 2 or 3 hours after the deadline, and found no one in the office.
At the hearing, he explained that he had no telephone, that his wife was working
and had the car, that his mother also works, that his grandmother was away, and
that he had to stay with his five, small children. He added that he thought he would
go to the plant when his wife came home at noon on April 29 but that she did
not come home to lunch that day.
North went to the plant the next day and told Burgess he was ready to go back
to work. Burgess asked if North had come to the plant the day before and North
said that he "couldn't make it." (North claimed that he was not given an oppor-
tunity to explain why he was unable to get to the plant by 3 p.m. on April 29.)
Burgess said that North's job was filled, that he would have to make out a new
application, and that he would have to start in the shipping department. North did
not fill out a new application and was not one of those to whom the Company
sent telegrams on May 5. In the course of the hearing, he was offered a job in
the shipping department as a new employee.
Although I credit North's testimony that he did not go to the plant before the
deadline because it would have meant leaving five, small children at home alone,
it is clear that he assumed that it would not matter if he was a few hours or even
a day late in reporting. On the other hand, I cannot find that North could have
made arrangements to get to the plant by the deadline for, even if it is assumed
that his wife could have come home at noon on April 29, it is far from clear that
he would have been able to get to the plant, see Burgess, and get the car back to
his wife in time for her to get back to her job before her lunch hour was over.
Respondent does not claim that North's job was filled between the deadline and
the time he actually reported.
M. Analysis and conclusions
1. The interference , restraint, and coercion
a. The threats
On April 27, 1965, the first day of the strike, President May instructed Supervisor
Boren to tell the die-shop employees that if they took their tools out, they "couldn't
come back" and that was what Boren told several of them. May himself told several
sr Respondent's exhibit which shows the names of the strikers to whom the May 5
telegram was sent does not list Malandrakis' name.
58 The practice of having the strikers come in first to say whether they wanted their jobs
back, before the Company determined which jobs had not been filled, meant that they had
to come or call a second time to learn whether or not to report to work and increased the
possibility of errors or that the instructions would be misunderstood.
5 It was stipulated that the Western Union official would testify that the telegram was
delivered to North's home about 11 : 40 a in. on April 28 and was signed for by his wife.
North did not explain where he was or what he was doing before 10 : 30 p in. on April 28.
MAY ALUMINUM, INC. 605
die-shop employees the same thing and directed his remark to Local President
McElroy in particular. Later, May told some of the men outside the plant that if
they did not report for work they were "through" and/or that they were fired.
Sometime in May, i.e., a few weeks after the strike ended, Supervisor Lincke
asked employee Cisneros how he liked his "vacation," told Cisneros that the employ-
ees had made a "big mistake" by striking, that President May would never sign a
contract with the Union, that the employees had lost their "rights" as the result of
the strike, and that their "chances of going up with the company were very, very
slim."
In the middle of June, another striker was given a job as a metal checker which
Cisneros thought he should have had because of his greater seniority and experience.
When Cisneros complained and claimed that he was "skipped over" because he went
on strike, Supervisor Krenek told him that the decision to strike was his own, that
he could have had the job if he had crossed the picket line and applied, that employ-
ees who needed union representation "weren't worth a damn," and that he [Krenek]
had got where he was on his own ability.
It is well established that an employer violates Section 8(a)(1) of the Act by
telling employees that they will not be coming back, or are "through," or are "fired"
if they strike and by telling employees that they have lost their rights because they
had engaged in a strike and that their chances of "going up" with the Company are
"very, very slim." It follows, therefore, and I find that the Company violated
Section 8 (a) (1) of the Act by making the foregoing statements. See Collins Baking
Company v. N.L.R.B., 193 F.2d 483, 486 (C.A. 5).
In view of the fact that Cisneros was fully reinstated and that the employee who
got the job in June, which Cisneros thought he should have had, was also a
reinstated striker, I do not find that Supervisor Krenek's statements to Cisneros on
that occasion violated the Act. Some of Krenek's statements were nothing more than
arguments against union representation. Perhaps Krenek's remark that Cisneros
could have had the lob if he had crossed the picket line and his comment that
employees who needed a Union "weren't worth a damn" could be construed as
threats of reprisals against Cisneros because he continued on strike and because he
chose to be represented by a Union. However, having considered all of the circum-
stances, I do not so find.
b. The discontinuance of the 90-day raises in October 1964
The complaint alleges that the Company, "on or about December 1, 1964" dis-
continued its practice of giving periodic increases because the employees had voted
for union representation.60 However, it is undisputed that the original decision to
discontinue the 90-day raises was made in late October 1964, i.e., shortly after the
Union filed its representation petition. It follows, therefore, that the decision could
not have been motivated by the Union's victory in the Board-conducted election as
the General Counsel recognizes for he argues in his brief that the raises were dis-
continued because of the union activity generally.
The first question, then, is whether there is a fatal defect between the complaint
and the proof because the Company's action occurred several weeks before the date
alleged and the alleged motive was one type of union activity where the illegal
motive, if any, was necessarily a different type of union activity.
The purpose of the complaint is to put the Respondent on notice about what
action it has taken which is alleged to have violated the Act so that it can prepare
to defend its conduct by whatever means it chooses. In the instant case, the complaint
advised Respondent that the General Counsel was contending that the decision to
withhold the raises violated the Act. The Company admitted that it had decided not
to give any more 90-day raises "until after the election," it knew when the decision
was made and introduced evidence designed to establish that its action was legally
motivated.61 Thus, the Company's defense was an explanation of why it discontinued
the raises in October, not in December, and there is no reason to believe that it
would have presented different or additional evidence if the complaint had alleged
that it had made the decision in October or if it had alleged that the Company was
motivated by the October union activity rather than by the employees' decision to
be represented by the Union. In sum, the issue actually litigated, as the Respondent
aP All references to discontinued raises are to the 90-day raises, it being undisputed that
the Company gave all 45-day raises as they came due
ai In situations such as this in which the Company makes no announcement about its
decision, the General Counsel can only estimate the date
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recognizes in its brief, was whether the decision to discontinue the raises violated
the Act.62 I conclude, therefore, that the variance between the complaint and proof
does not.bar consideration of the issue of whether the Company violated the Act
by deciding to withhold the raises after the petition was filed in October.63 Cf.
Rocky Mountain Natural Gas Company, Inc. v. N.L.R.B., 326 F.2d, 949, 951, foot-
note 3 (C.A. 10).
Although the Company became aware of the union activity in August 1964, it
not only continued to give the 90-day raises but felt free to correct, during this very
period, the mixup upon which it now relies to justify its action. This it did by post-
poning the raises for 45 days so that they would be back on schedule. (See supra.)
Needless to say, unfair labor practice charges can be based not only on company
action after a petition has been filed but on action taken during the period in which
the Union is seeking sufficient support to file a petition. However, the Company
made no effort to explain why it did not fear a charge prior to the petition but,
allegedly, feared one after the petition. In fact, the Company's position was stronger
in October than it was in August and September for by late October, the mixup had
been straightened out for about a month and the raises were again in conformity
with its policy except in two cases and the Company gave those two employees post-
petition increases.
More importantly, the Company failed to explain to the employees why it was
withholding the raises as it surely would have done if its reason had been the one
asserted by the Company at the hearing. Cf. N.L.R.B. v. Zelrich Company, 344
F 2d 1011, 1014 (C.A. 5). In addition, the Company's acknowledged position was
that the employees would suffer, rather than benefit, if they chose to be represented
by the Union and it was in a position to prove its contention by withholding the
90-day raises. And the withholding of the raises would also remind the employees
that the Company regarded wages as a matter wholly within its control.
Having considered the Company's hostility toward the Union, the fact that the
mixup had been straightened out at least a month before the petition was filed, and
the Company's failure to explain to the employees its alleged reason for withholding
the raises, I find that the mixup discovered in July or early August was but a pretext
put forward later to justify its action and that the raises were not withheld because
the Company feared an unfair labor practice charge if it continued to give them.
I find, instead, that the raises were withheld because the Union's petition disclosed
that it was making progress in its campaign to become the bargaining representative
of the employees and to discourage the latter from voting for union representation 64
It follows, therefore, and I find that the Company violated Section 8 (a) (1) of the
Act by withholding the 90-day raises on and after late October 1964. Cf. N.L.R.B.
v. 'Zelrich Company, supra.
In any event, the test of whether conduct violates Section 8(a)(1) of the Act is
not the Company's motive but whether the reasonable tendency of its action was to
interfere with, restrain, and coerce employees in the exercise of the rights guaran-
teed them by the Act. Cf. N.L.R.B. v. Wilbur H. Ford d/b/a Ford Brothers, 170
F.2d 735, 138 (C.A. 6). In other words, the Company's action is judged by the
manner in which it will be interpreted by the employees. Cf. Hendrix Manufacturing
Company v. N.L.R.B., 321 F.2d 100, 103-104 (C.A. 5). In the instant case, all that
the employees knew was that the Company was hostile to the Union, that they
stopped getting the raises when the petition was filed, and that the raises were not
62 The first charge was filed on April 2, 1965, which means that the Company's decision
in October 1964 occurred within the 6 months limitation period.
63 May consistently explained that the decision was to withhold the raises "until after
the election" lest the Company be charged with an attempt to interfere with the election.
Even in its March 30, 1965, letter to the employees, the Company stated that it had been
unable to give the increases "because of the Union' s organizational campaign." It being
undisputed that the raises were not resumed after the election, a second decision must have
been made after the election, I e., after November 20 and perhaps on or about December 1
when the Union was certified . It is also clear that the decision was not to give any 90-day
raises. On the other hand, it can hardly be doubted that the Company would have started
giving the raises again if the Union had been defeated.
64 As stated supra, in the earlier proceeding based upon charges filed in the fall of 1964,
the Board found that the Company engaged in surveillance, repeatedly interrogated the
employees , threatened reprisals , and discharged an employee because of his union activity
Of course, most of the employees who received the 45-day raises were hired after the peti-
tion and/or the election and played no part in the successful union campaign.
MAY ALUMINUM, INC. 607
resumed after they voted for the Union . In view of these facts , I conclude that the
employees would believe that the raises were withheld in reprisal for their union
activity and that, therefore , the Company 's action constituted interference , restraint,
and coercion within the meaning of Section 8 (a)(1) of the Act. See also N.L.R.B.
v. Buinup and Sims, 379 U.S. 21, 23-24.
2. The refusal to bargain in good faith
a. Summary of events
As set forth supra, during the Union's organizational campaign in the fall of
1964, the Company engaged in surveillance, repeatedly questioned employees,
threatened reprisals for union activity, and discharged one employee because of his
union activity.
Upon receipt of the Union's representation petition on or about October 26, the
Company decided to withhold the customary 90-day raises " until after the elec-
tion." It gave the employees no reason for its action and when the election was
over and the Union was certified, the Company did not resume its practice of giv-
ing such raises. Nor did it explain to the Union, when bargaining began in January
1965, what its practice had been, that it was continuing to give 45-day raises, or
why it had decided to withhold the 90-day raises.
By mutual consent, the parties postponed serious discussion of the money clauses
in the Union's proposed contract until after the noneconomic clauses had been dis-
cussed. As a result, the 10 meetings which were held before March 25 were devoted
primarily to discussing such matters as seniority, checkoff, union security, subcon-
tracting, and a grievance procedure. In the course of those meetings, agreement
was reached on a number of clauses which were more or less noncontroversial such
as recognition and purpose. Agreement was also reached on a number of items
which represented concessions by the Company. For example, the probationary
period was set at 30 days, instead of the current 45 days, the Company agreed to
furnish a bulletin board for the Union's use, to pay employees called for jury duty,
and to pay "call-in" pay. There was also agreement on some of the subsections of
the Union's proposal with respect to overtime pay but it is not clear whether or
not this meant increased employee benefits. Also agreed to was a grievance proce-
dure which included binding arbitration.
Agreement was not reached on seniority, a subject which came up in various
forms such as job bidding, or on checkoff, or on subcontracting which included
plant closure. The major money items also remained in dispute; i.e., the number of
paid holidays, vacations, insurance, and wages. All, except wages, were discussed to
some extent before March 25, and the Company offered two vacation plans leaving
it up to the Union to select the one it preferred. A number of other subjects also
remained unsettled, in whole or in part, such as the effective dates of the contract,
leaves of absence, and the number of part-time employees, but it seems clear that
the disagreement on these subjects would not have prevented the signing of a con-
tract if agreement had been reached on the many-sided question of seniority, on
checkoff, on subcontracting-plant closure, and the major money items. In addition,
some clauses, such as management rights, had not been discussed because President
May wanted to check them with the Company's attorney.
Many of the items in dispute centered around the die shop and/or die repair
shop and Union Representative White was taken into the plant to familiarize him-
self with the jobs performed by the various men. The Company offered a substitute
list of job classifications in these shops which apparently was agreed to. The die
shops were also mentioned particularly in connection with subcontracting. The
Company pointed out that its costs in those shops had been rising, quoted figures to
substantiate its claim, and stated that it had been thinking for some time about buy-
ing more dies from outside.
The Company asked that the union label clause be deleted and the Union agreed.
It refused to agree to tell the Union why an employee had been disciplined or dis-
charged but only that action had been taken. May expressed the opinion that the
Union's committeemen were incompetent. When the truckdriver was being dis-
cussed, President May threatened, to take him out of the unit if the Company was
not left free to handpick the driver.
By March 25 , the parties had discussed the nonmoney items at least twice and
had discussed, to some extent, a few of the money items such as vacations and
holidays. On March 25, President May wanted to know if White was ready to
get into the money clauses and White said that he was , that the "cat and mouse
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
game" should be stopped . The Company repeated its vacation offer. Personnel
Manager Burgess was asked to compile cost data on insurance , the Company
offered a 3-cent increase in the third shift differential but stated that the number
of paid holidays would remain the same.
On wages, May said that he would say "damn quick" what he would do and
that was that he was "not going to do a damn thing ," that he had told the employ-
ees what he was going to pay them , and that was what he was going to pay them.
May also observed that the Union had told the employees that it was going to
get the Company to do something different , adding "Now , let's see you do it."
White asked if May would be willing to have the jobs evaluated by an arbitrator
but May said that he would evaluate his own jobs.
At the close of the March 25 meeting , White commented that he had hoped
that a contract could be agreed to without a "fight" but that was apparently not
possible. He also proposed to call the Mediation Service and did so that afternoon
That same day, White prepared a notice calling a union meeting for April 1 to
take a strike vote and asked Personnel Manager Burgess to post copies in the plant.
On March 30 , the Company gave approximately 90 employees their periodic
increase, the first 90 -day increases given since the previous October, shortly after
the Union filed its representation petition . A copy of the announcement was sent
to Union Representative White.
At the April 1 meeting , the employees voted overwhelmingly to strike.
On April 2, the Union filed a charge alleging that the Company had refused to
bargain in good faith by granting "a unilateral wage increase" to the employees
"after having refused during negotiations to grant any wage increases .
On April 7, the Company notified the employees that because of the charge, it
was rescinding the increases . The Company 's letter referred to the increases as
those which the employees were promised when they were hired and which they
had "been receiving since that date ." The employees were also told that "the
amount paid under this increase " would be deducted from their next checks. A
copy of the letter was sent to the Union.
The same day , the Mediation Service advised White that there was a sched-
uling problem and that a company-union meeting was set for April 15. (By
April 15, 41/2 months of the Union 's certification year would have passed and the
parties had just begun serious negotiations on money items and had not nego-
tiated at all with respect to some clauses such as management rights about which
there is frequently serious dispute .) White notified the Company that the Union
would probably call a strike at once if agreement could not be reached the next
day. He was told that the Company could not meet on April 8. However, the
Company did not suggest the possibility of a meeting before April 15.
The strike began on the morning of April 8 and a number of the die-shop
employees were told by President May and Supervisor Boren that if they took
their tools out, they could not bring them back and May directed his remark
to Local President McElroy particularly . May also told a group of employees out-
side the plant that they were "through " and/or "fired" if they did not report to
work. White remarked to May that he had asked for a fight and he had one. May
replied, "You are goddamn right I did. " Approximately 140 employees joined in
the strike originally but about a dozen returned to work before the strike ended
on April 27.
On April 9, the Union filed another charge based on the granting and later
cancellation of the raises.
At the company -union meeting on April 15, the parties started going through
the Union 's proposed contract a third time but no new agreements were reached.
In fact, President May said flatly that there would be no checkoff although he had
indicated earlier that he might agree if the employees paid the cost or that a
"trade" might be worked out. Other items were found to be in dispute although
one or the other of the parties had understood that they had been agreed to.65
as On April 19, the Company filed an action in a State court which charged the Union
with illegal conduct and sought to have White 's deposition taken and to have him produce
"all books , papeis, documents , notes. memorandum , correspondence , and so forth with any
and all of the Company 's employees" in connection with the strike and the picketing
One of the allegations was that White had caused the publication and circulation of a falae
statement accusing the Company of violating the law , presumably by filing the charges
with the Board.
MAY ALUMINUM, INC. 609
At the second meeting during the strike, the Company handed the Union a
number of written counterproposals which would give the Company the exclusive
right to make various changes during the term of the contract, including the right:
(1) to subcontract or to terminate all the production work performed by the
unit employees without prior bargaining.
(2) to establish the wage rates for new job classifications without prior notice
or bargaining although the Union could file a grievance within 30 days.
When the parties met on April 27, the day the strike ended, the Union charged
that to agree to the above clauses would, in effect, "decertify" the Union. The
Company replied that it did not intend to subcontract all of the work but refused
to put its statements in writing.
Union Attorney Crawford and President May got into a heated argument on
wages with May repeating his statement that he was not going to give a "damn
cent increase" but was going to do only what he had done in the past. When
Crawford asked if the Company was pleading inability to pay, May admittedly
replied that it was none of the Union's "goddamn business" and stated at the
hearing that this was his belief.
Union Representative White handed a letter which stated that White had been
authorized by all the strikers to make an unconditional offer to return to work and
that he was making such an offer on behalf of each individual striker. The
Company questioned White's and/or the Union's authority to make the offer and
said that only "bona fide" request for reinstatement would be made when the
strikers came to the plant in person. May stated that he would reinstate any
striker who had not been replaced except the die repairman who had "sabotaged"
the Company and any employee who was guilty of picket line violence or had
made threats on the picket line. As noted supra, the Union's top officials came
from the die shop or die-repair shop and there is no evidence of any picket line
threats or violence.
The Union asked for a list of the employees just before the strike, their job clas-
sifications, dates of hire, and rates of pay, in part at least to enable it to determine
whether the strikers were being reinstated to their former jobs. On July 1, i.e , more
than 2 months later and a few days before the opening of the hearing, the Com-
pany sent the Union a list of employees, the dates on which they were hired, and
their rates of pay but not their job classifications. The insurance information
requested before the strike was never furnished.
It was agreed on April 27 that the attorneys would meet in Houston to try to
reach agreement on a seniority clause and perhaps other subjects.
As set forth elsewhere, most of the strikers were reinstated and the Company
offered to hire and/or did hire most of the others as new employees either in May
or during the hearing.
At a meeting on May 4, President May made the "flat statement" that the Union
did not represent the employees and characterized White as a "labor thug." It may
have been at this meeting that May referred to Union Representative White as a
"jackass" and the union attorney asked May what century he thought he was liv-
ing in and made other derogatory but unquoted remarks about May.
The Union refused to waive the Company's liability, if any, to the strikers on
the ground that these were individual rights. May repeated his position that he was
not going to pay a "damn cent" more than he had promised to pay, and that no
"damn" union was going to make a liar out of him. However, he repeated his offer
of a 3-cent-an-hour increase in the third shift differential and also said that he
would consider a revocable checkoff provision.
It was at this meeting that May stated that "as of right now" three of the die
men who had returned after the strike as metal checkers were transferred to the
engineering department; i.e., out of the bargaining unit . The fact that the leader-
man in the die shop, a nonsupervisory employee, was now an ordinary rank-and-
file employee, at a lower rate of pay, was also discussed.
In addition, the Company handed the Union some more counterproposals which
White said amounted to little if anything more than a restatement of clauses already
agreed to. The Union, in turn, made a counterproposal, i.e., that the Company
agree to the same contract that it had with the Machinists in Houston with only
the dates and the name of the union changed. The Company, however, pointed out
provisions in that contract to which it could not agree, such as the checkoff clause
and the wage rates.
257-551-67-vol. 16 0-4 0
.6X0 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The last meeting was requested by the Company and was held on June 23. The
Union agreed that the Company could make a payment from the profit-sharing
plan but would not agree to payment of the periodic raises. May said that they
would be paid when a contract was signed. May repeated that he would not give a
"damn penny" general increase and the Union asked for a statement of the Com-
pany's periodic pay "pattern."
No new agreements were reached but the Company indicated that it might make
further counterproposals.
b. The failure to bargain in good faith in violation of
Section 8(a) (5) and (1) of the Act
The Union having been certified as the exclusive bargaining representative of the
Company's employees, the Company was required to bargain with it with an open
mind and a sincere purpose to reach agreement consistent with the respective
rights of the parties. N.L.R.B. v. Herman Sausage Company, Inc., 275 F.2d 229,
231 (C.A. 5). Thus, good-faith bargaining is basically a question of the employ-
er's state of mind or his attitude toward the union and collective bargaining gen-
erally and that state of mind or attitude is determined by examining his entire
course of conduct, not by considering each event individually and as unrelated to
what went before or what followed after. N.L.R.B. v. Stanislaus Implement and
Hardware Company, Ltd., 226 F.2d 377, 381 (C.A. 9). Of course, this includes
what the employer said and did not say, what he did and did not do, and the
timing and interrelation of the various events. Nor is good-faith bargaining neces-
sarily established by the fact that the employer met with the union, discussed the
latter's proposals, and agreed to some of them. See N.L.R.B. v. Herman Sausage,
supra, 232. The employer must recognize the rights of the union in fact as well as
in theory such as its right to bargain on all terms and conditions of employment,
its right to information, to explanations, to be consulted, to ask pertinent ques-
tions and to have them answered, and to have all of its proposals considered on
their merits.
Perhaps the attitude required is similar to that with which the Company would
.bargain with a supplier or customer with which it would like to do business but
with which it is not obligated to buy or sell. With such a supplier or customer,
the Company would not resent the need to negotiate terms and would not regard
the time spent in negotiations as wasted. The Company's counteroffers would not,
in effect, require the supplier or customer to abdicate basic rights. Nor would the
,Company make it clear that it had proved its point if, as the result of the nego-
tiations, the customer or supplier lost both money and prestige.
Although the Company sought to defeat the Union by engaging in unfair labor
practices, after the Union was certified, it met with the Union repeatedly, discussed
most of the nonmoney clauses at length, and the parties reached agreement on a
number of such items. However, when bargaining began in earnest on the money
items on March 25, the Company stated that it would do nothing more on wages
than it was already doing, its only explanation being that it had "promised" the
employees when they were hired what their rates would be and that was what they
were going to be. As May put it at the hearing, "I think we went into the fact that
we had made certain definite commitments" to the employees and the Company
felt "obligated to" keep them.
In I. I. Case Company v. N.L.R.B., 321 U.S. 332, the company argued that it
.could not bargain with the union with respect to wages and other terms and con-
ditions of employment because it had previously entered into 1-year contracts of
hire with the employees which established their rates of pay and other terms of
employment. However, the company offered to negotiate about matters not governed
by the contracts of hire and on all matters once those contracts expired.66
In considering the company's contention, the Court pointed out, 321 U.S. at
337-338:
Individual contracts, no matter what the circumstances that justify their exe-
cution or what their terms, may not be availed of to defeat or delay the pro-
cedures prescribed by the National Labor Relations Act . . . nor may they be
e5It was undisputed that the contracts were not obtained by any unfair labor practice
and were valid under the circumstances in which they were made. By the time the case
reached the Court, the contracts had expired and a collective -bargaining contract had been
negotiated. Nonetheless, the Court held that the question of the refusal to bargain was not
,moot. 321 U.S. at 334.
MAY ALUMINUM, INC. 611
used to forestall bargaining or to limit or condition the terms of the collective
agreement . Wherever private contracts conflict with [the Board's] func-
tions, they obviously must yield or the Act would be reduced to a futility.
The very purpose of providing by statute for the collective agreement is
to supersede the terms of separate agreements . . . with terms which reflect
the strength and bargaining power and serve the welfare of the group.
Although the Company in the instant case did not contend that it could not
bargain with the Union about wages because of its promises to (agreements with)
the employees, it made it clear that it would not bargain about wage rates because
.they had been established when the employees were hired. Its attitude also made
it clear that nothing the Union could say could persuade the Company to make
any changes and that bargaining on the subject would be futile. As a practical mat-
ter, this meant that the Company's position on wages was basically the same as
that of the employer in Case, i.e., that the rates of pay had been settled by its
"contracts" with the employees and that they were not a subject about which the
-Company would bargain.67
The Company also made it clear, during the negotiations and at the hearing,
that its position on wages was motivated, at least in part, by a determination to
prove to the employees its contention that they would be worse off if they chose
to be represented by a union; i.e., that they would have less money after they had
paid their union dues.
I conclude, therefore, that a preponderance of the evidence supports the alle-
gation of the complaint that Respondent refused to bargain with the Union about
wages thereby violating Section 8(a)(5) and (1) of the Act.
The Company's preference for individual bargaining is further revealed by its
statements and actions with respect to the reinstatement of the strikers. Thus,
when Union Representative White gave the Company a letter on April 27 in
which be made an unconditional offer, on behalf of each individual striker, to
return to work, the Company asked if White had the authority to make such an
offer on behalf of each employee individually and stated that the only "bona fide"
offer would be made when the strikers reported to the plant; i.e., one by one.
The Company's April 27 telegram to the strikers was consistent with that position
for it told them:
We have been told that the strike is over. Please report in person ... or we
will assume that you do not want to be reinstated.
This was also the Company' s position when the strikers came to the plant for
Burgess testified that he asked each man if he wanted to return to work and he
admitted that it was only after the men had applied individually that he determined
which jobs were still available.68 In short, the Company treated the Union's letter
as nothing more than a notice that the strike was over and its April 27 telegrams
were not offers of reinstatement but invitations to the srikers to apply, individ-
ually, for reinstatement.
Furthermore, all of the strikers were given less than 48 hours, and a number
substantially less time in fact, within which to apply for reinstatement and those
who were only a few hours late were denied reinstatement even though they had
not received the telegrams in time to apply before the deadline and even though
there is no evidence that their jobs had been filled in the interim. Of course, on
the day the strike began, President May and Supervisor Boren told a number of
men in the die shop, including specifically Local President McElroy, that if they
did not work that day, i.e., if they went on strike, they would not be coming back.
McElroy and the other top officials of the Local worked in the die shops and on
the day the strike ended, May said that he would not take back any of the die
repairmen who had "sabotaged" the Company. (As pointed out earlier, there is
no evidence of any striker misconduct.)
And then, on May 4, President May sought to terminate negotiations by stating
that the Union did not represent the employees, his only reason being that no
,employee had been present at the negotiating meetings after April 15 69 (As stated
87 Indeed , this seems to be Respondent 's position in its brief for it notes that the Union
- did not incorporate the Company 's wage practices into its proposed contract.
ea As a result, the men whose jobs were still available had to call or come by the plant
a second time to learn when to report to work. In contrast , the May 5 telegrams told the
men exactly when to report for work.
61 The Union's certification year still had nearly 7 months to run.
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supra, Local President McElroy had found a job in Houston and had resigned.
In addition , the employees had authorized White and the Union 's attorney to act
in whatever manner they saw fit .) May also referred to the Union 's chief spokes-
man as a labor "thug" and a "jackass" and admittedly paid little attention to state-
ments by its representatives.
Respondent revealed in other ways its attitude toward the rights of the employ-
ees and their bargaining representative generally and about wages in particular.
Thus, when May was asked during negotiations if the Company was pleading
inability to pay higher wages , he admittedly replied that it was none of the
Union 's "goddamn business ," a view which he also expressed at the hearing. On
another occasion , May put his attitude into words when he admittedly told another
company representative that it was "too bad" that he had never been able to sit
down and talk with Union Representative White and "go over some things" that
White did not know and that the Company "did not care to discuss in the nego-
tiations ." Had that been possible , May said, he "felt" that White would have known
"more about our position as individuals [ on matters ] not to be brought out in
negotiations .
In addition , the Company 's actions with respect to wages were consistent with
its statements . Thus, it failed to explain its periodic wage policy to the Union, or-
that it was continuing to give 45 -day raises , or that it had ceased to give 90-day
raises or why it had done so in October 1964 when the Union filed its represen-
tation petition . Then, on March 30, 1965, without any prior discussion with or
notice to the Union , the Company gave the employees the raises it had prom-
ised them individually and had been withholding since the previous October. When-
the Union filed a charge alleging that the raises constituted unilateral action, the
Company did not discuss the situation with the Union but rescinded the raises,
stating that it was doing so because of the charge and claiming , untruthfully, that
the employees had been receiving the raises since the dates on which they were
hired. ( Of course , the March 30 increases had failed to prevent an overwhelming
strike vote on April 1.)
As a practical matter, the Company also regarded as none of the Union's business
other matters directly related to the employees ' relations with the Company. Thus,
early in negotiations , the Company said that it would not tell the Union why
employees were disciplined or discharged but only what action it had taken . Need-
less to say , the Union would be handicapped in representing the employees in con-
nection with grievances , if it had no accurate information about the reason the
Company was asserting for its action . Similarly, the Company disregarded com-
pletely and without explanation the Union 's request for information about the
Company's insurance costs, its periodic pay increase "pattern," and the job classifi-
cations of each employee at the time of the strike . (The latter information was
requested at least in part to enable the Union to determine whether the strikers were
being reinstated to their former jobs.) Although the Company finally furnished the
Union some of the information a few days before the hearing and about 2 months
after it was requested , it did not supply all of the information and its usefulness to^
the Union was considerably reduced by the time it was given.
The Company 's counterproposals in April, while the employees were on strike,
on such subjects as subcontracting , plant closure , and new processes further dis-
closed its attitude toward the Union 's right to be consulted and the Company's
desire to avoid its obligation to negotiate with the Union on subjects which could
directly affect the job security and wages of employees . The effect of the proposals
was to seek a waiver by the Union of its well-established right to bargain on sub--
contracting and the wage rates for newly created jobs. As put by White, these pro-
posals amounted to a request that the Union "decertify " itself as the employees'
representative in these areas . Although there was nothing illegal about the counter-
proposals , the Company must have known that no self-respecting Union would be-
likely to agree to them and that the proposals were likely to widen, rather than to
narrow, the areas of disagreement . As the court said in N.L .R.B. v. Reed & Prince
Manufacturing Company, 205 F.2d 131, 134 ( C.A. 1), cert. denied 346 U.S. 887,
if the Board is not to be blinded by mere talk , it must take some cognizance of the
reasonableness of the company 's offers including those which it must have known
had not the slightest chance of being accepted by a self-respecting union . See also-
Vanderbilt Products , Inc. v. N.L.R . B., 297 F.2d 833 , 834 (C.A. 2).
Furthermore , when the Union raised questions about the truckdriver , President
May threatened to take him out of the unit and when it rasied questions about the-
reinstatement of die-shop and/or die -repair men as metal checkers , May announced
that as of that moment they were assigned to the engineering department which is
MAY ALUMINUM, INC. 613
not within the unit description . This meant that the Union 's officers no longer
worked at unit jobs and, as found infra, his action was motivated , in part, by a
desire to avoid bargaining with the Union concerning their poststrike status. Indeed,
since May was of the opinion that he could move employees unilaterally as long as
there was no contract ( see supra ), he must have believed that it was in the Com-
pany's interest to postpone agreement as long as possible and perhaps to avoid ever
signing a collective-bargaining agreement.
As noted previously , the courts have recognized that a willingness to meet and
talk with the union and to agree to some of its proposals do not establish that it
bargained with the union with an open mind, with a sincere desire to reach agree-
ment on all issues and to incorporate the agreements reached into -a collective-
bargaining contract . N.L.R.B. v. Herman Sausage Co., supra, 232; N.L.R.B. v.
Reed & Prince, supra, 139 . In other words , an employer may fail to bargain in good
faith even though he does so with "sophistication" and "finesse" rather than by a
blunt refusal to meet and talk. Herman Sausage, supra.
In the instant case, the Company 's statements and actions disclosed its hostility
to the Union and its rights as the certified bargaining representative of the employ-
ees. Included , inter alia , were the Company 's actions during the organizational
period, its withholding of the 90-day increases when the Union filed its petition,
its position that wage rates had been established by its promises to the employees
when they were hired , its failure to explain its wage policy and practices to the
Union, its granting of 90-day raises in March, 1965, without prior discussion with
or notice to the Union and just before a strike vote was to be taken , its cancella-
tion of the raises after the first charge was filed and after the employees had voted
overwhelmingly to strike , its refusal to honor the Union's unconditional applica-
tion for reinstatement on behalf of the strikers , its threats of reprisals against
strikers , its failure to furnish information on request , its transfer of jobs out of
the bargaining unit when the Union raised questions, and its counterproposals
on subcontracting and the wage rates for newly created jobs.
In sum, having considered Respondent 's entire course of conduct which began
in the early stages of the Union 's organizational campaign and continued through-
out the entire period prior to the hearing, I conclude that it did not enter negotia-
tions with a "sincere desire" to reach agreement on all issues and in a "spirit of
amity and cooperation ." N.L.R.B v. Atlanta Broadcasting Company, 193 F.2d
641, 642 (C.A. 5). I find, therefore , that Respondent violated Section 8(a)(5)
and (1 ) of the Act by failing to bargain in good faith with the Union.70
In its brief , Respondent argues that it demonstrated its good faith by, inter alia,
promptly reinstating most of the strikers and by hiring or offering to hire most
of the others as new employees , either in early May or at the hearing in July. The
short answer to this contention is that only a handful of jobs had been filled
during the strike so that its liability , if it did not reinstate the strikers, upon
unconditional application , would be clear even if the strike was purely an eco-
nomic one . By the same token, having been unable to hire many replacements, the
'Company had to reinstate most of the strikers or continue to operate with only
the supervisors and a comparatively few employees just at the time its busy season
was about to begin.
3. The Company's unilateral action on March 30 and April 7
As set forth supra, the Company described its October 1964 decision to with-
hold 90-day raises as a decision not to give them until after the election lest it
be charged with seeking to interfere with the election. However, the Company
did not start giving those raises once the election was over and gave no 90-day
raises until March 30, 1965. On the other hand, the Company continued to give
the 45-day raises both before and after the election and the certification of the
Union and no unfair labor practice charge was ever filed based on those raises.
The Company defends the March 30 raises on the ground that the negotiations,
70 In its brief, Respondent claims that the items in disagreement had been "reduced from
32 to 3." However, it admits elsewhere that no agreement was reached "on the economic
items, checkoff, departmental seniority and the right to subcontract " Of course, the eco-
nomic items which it counts as one point of disagreement, included not only wages but
numerous other items such as insurance, vacations, holidays, and various aspects of over-
time The Company also ignores the fact that seniority came up in connection with a num-
ber of subjects such as the right of foreman to "bump" unit employees and that "subcon-
tracting" Included plant closure and wage rates for new jobs.
(14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at least with respect to this subject , had reached an impasse . In its brief , Respond-
ent repeatedly rests this argument on the fact that White had asked the assistance
of the Mediation Service. But this action is wholly inconsistent with a claim that
White believed that further negotiations would be futile . On the contrary , White's
conduct and the fact that further meetings were held at the Union's request
demonstrate the Union 's belief that additional meetings might bring about agree-
ment. And the Company knew, when it gave the increases , that White was trying
to schedule another meeting. In fact , May testified that White said he felt that an
"impasse had been reached ," adding, "and the Federal Mediator could help us
reach an agreement , I guess."
As noted previously , there is no claim that the Company suggested to the
Union, on March 25 or any other time, that there was an impasse in negotia-
tions and that it would be useless to meet again , and May expressed the opinion
at the hearing that the Union was "awful stupid " in calling a strike when the
parties were negotiating , when mediation was coming up, and "I thought [we
were] making progress all along, with the exception of a couple of items." As
noted supra, nothing in the Company 's March 30 letter, either to the employees
or to the Union , indicated that it was acting because negotiations on the subject
of periodic increases had reached an impasse.
Although White had used the word "impasse," he is not an attorney and even
experienced labor lawyers frequently use the word loosely to mean that no
progress is being made. Cf. Industrial Union of Marine and Shipbuilding Workers
v. N.L.R.B., 320 F.2d 615, 62], footnote 6 (C.A. 3), cert. denied 375 U S 984. More
importantly, in order to justify action by the Company, it is necessary that the
impasse was reached only after good-faith bargaining. As the court noted in the
above case , "there can be no legally cognizable impasse . . . if a cause of the
deadlock is the failure of one of the parties to bargain in good faith."
Finally, full discussion, with whatever explanations are required by the particu-
lar situation, is a condition precedent to impasse. As noted supra, there is no
claim that the Company explained that it was continuing to give the 45-day raises
or told the Union the reason, asserted at the hearing, for giving the one but not
the other. And as found above, the Company did not explain its periodic increase
plan to the Union and the subject was never discussed, the only reference to it
being a passing exchange as the parties were leaving one of the meetings.
Having considered the absence of negotiations about the raises, the Company's
failure to claim, prior to the hearing, that an impasse had been reached, White's
actions in seeking and obtaining further meetings on and after March 25, the
Company's failure to bargain in good faith generally and with respect to wages
in particular , I find that there was no "legally cognizable impasse" which justified
the Company 's giving the March 30 raises.
Respondent also argues that the Union acquiesed in the withholding of the
raises although this argument is at least in part self-defeating for even if it is
assumed that the Union did acquiesce either in fact or in law, it is clear from
Respondent 's own testimony that the Union did not change its mind and agree
that the Company could give the March increases.
As the facts disclose, the 90-day raises were first withheld about a month
before the election and about 6 weeks before the Union was certified. During
this period, the Union was not the representative of the employees and, therefore,
could not have waived the employees ' right to continue to receive the raises they
would have received but for their efforts to obtain union representation
Although it is clear that White became aware, after the Union was certified,
that the Company had given increases based on time worked, that some employees
had received raises and others had not, and told one employee that he agreed
that the Company could not give "a raise" ( emphasis supplied ) until a settlement
was reached with the Union, there is no evidence that he knew the "pattern" of
the raises , or knew the nature of those given and those withheld, or knew why
the Company was giving some and not others. Respondent argues that the Union's
charge after the March increases proves that it would have filed a charge had the
Company given the 90-day raise throughout. But the fact remains that the Union
did not file a charge based on the 45-day raises which were never discontinued.
One inference that could be drawn from this fact is that if the Company had
given the 90-day raises throughout, the Union would not have filed a charge.
Another is that the Union did not know that the Company was giving the 45-day
raises regularly and it is, of course, undisputed that the Company never advised
the Union of this fact.
MAY ALUMINUM, INC. 6155
Moreover, there is no evidence that the Company knew about the conversation
between White and employee Lopez which means, of course, that it did not rely,
even in part, upon White's statement , when it decided (well before the conversa-
tion) to withhold the 90-day raises. Although the Company told Lopez that it
could not give raises until after a "settlement " had been reached with the Union,
there had been no settlement in March. Indeed, the very absence of an agreement
(impasse) is one of the Company's major defenses.
Nor does the fact that the Union filed a charge based on the March increases
prove that it would have filed a charge in December 1964-January 1965 if the
Company had explained at that time its periodic increase policy, its reason for
withholding the 90-day raises, and indicated it would like to give them again.
The approximately 90 March 30 increases came without prior notice or bargaining
for the Company did not tell the Union at the March 25 meeting that it intended
to give the raises but, on the contrary, told the Union that it would give no gen-
eral increase. See also the Company's March 30 letters which do not refer to
negotiations on the subject or prior notice of its intention to reinstitute the raise.
In other words, the Union's reaction to the March 30 increase was based on
the situation which existed on that date including its lack of accurate information
about the Company's periodic increase practice, its lack of notice that raises were
about to be given to 90 employees , its objections to a sudden , mass wage increase
after the Company's statements a few days earlier, the Company remarks about
its promise to (agreements with ) the employees individually , and the timing of
the increases; i.e., a few days after the Union had announced a strike-vote meeting.
In sum, the gravaman of the charge was that the Company had acted uni-
laterally and the Company's assertion that the Union would also have objected if
the Company had explained its practice to the Union and negotiated about it at
the outset or during the course of negotiations is both speculative and immaterial.
And, as noted supra, the Union never filed a charge based on the granting of the
45-day increases which, of course, did not constitute a sudden change, in the
course of bargaining , in the wage rates of approximately 90 employees . Needless
to say, it would scarcely improve the Company's legal position to explain the
Union's failure to file such charges on the ground that it did not know about
those mcreases or that they had been given regularly.
Two events occurred between the granting of the increases on March 30 and
the recission of the increases on April 7. One was that the Union filed a charge
and the other was that, despite the March 30 increases, the employees voted over-
whelmingly to strike. On the other hand, two things did not occur between
March 30 and April 1. One was that there was no effort by the Company to
explain its March 30 action to the Union or to make any effort to negotiate
with the Union about the 90-day raises. The other was that the Company did
not notify the Union that it had decided to rescind the increases, a fact which
was known to the Company only . In short, Respondent's reply to a charge of
unilateral action was another unilateral act.
The Company argues that the failure of the Union to bring up the subject of
the raises during negotiations, although it was aware generally that some wages
were being given and others were not, constitutes acquiscence in the Company's
withholding of the raises or a waiver of its right to bargain with respect to them.
However, the record falls short of establishing that the Union had complete and
accurate information with respect before and after October 1964, or that the
Company had good cause to believe that the Union had such information, or
that it was for this reason alone that the Company failed to mention its past
practice, its current practice, and its intention to reinstitute the 90-day raises. Cf.
N.L.R.B v. Brown-Dunkin Company, Inc., 287 F.2d 17, 20 (C.A. 10).
Because the Act is designed to protect public rather than private rights, it is well
established that a union will be found to have waived the rights established by the
Act only upon clear and unmistakable evidence. Cf. Timken Roller Bearing Co.
v. N L.R B., 325 F.2d 746, 751 (C.A. 6), cert denied 376 U.S 971, enfg 138
NLRB 15. In each of the cases cited by the Company, the employer had notified
the union about the proposed change and either invited its comments or offered to
"discuss" or "explain" its plans.
Although White knew generally that increases were given on the basis of time
worked and that some employees had received increases and others had not, the
record does not warrant a conclusion that he knew to which employees the
practice applied, or that the 45-day raises were being given regularly but not the
90-day raises, or when or why the Company decided to continue the former and
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discontinue the latter. As noted supra, the Union's officers worked in the die shops
and the periodic increase policy never applied to the employees in those shops.
And May himself expressed the opinion that Local President McElroy knew little
if anything about conditions outside of his own little "bailiwick."
Some of this information, but not all, could have been obtained by the Union
by questioning the employees in every department (who were employed before
the petition) about their understanding of the Company's pre-November 1964
policy, by questioning the employees in every department, after the petition, about
what raises they had received and when they had received them. To compile fairly
accurate information by this means would require the cooperation of a substantial
percentage of employees in each department and considerable record keeping. Cf.
N.L.R B. v. Brown-Dunkin, supra, in which the court commented on the fact that
the union's only knowledge came from the employees and was far from complete.
And not even Respondent contends that the Union agreed that the company could
give the March 30 raises and, of course, the Union had no advance knowledge
that they were about to be given or, later, that they were going to be rescinded.
Finally, the March 30 raises and their cancellation on April 7 were events in a
chain which began in October 1964, a month before the election, and the entire
problem was created by the Company's decision to withhold the 90-day raises
when the petition was filed, which constituted an unfair labor practice which
occurred well before the Union became the representative of the employees. The
reason for the decision was not explained either to the employees in October or to
the Union later. The March 30 raises followed the Company's failure to bargain
about wages and its flat statement that the rates would be those established by the
Company's promises to (agreements with) the employees.
For the reasons set forth above, I cannot find that the Union had sufficient
information to warrant the conclusion that it acquiesced in the Company's with-
holding of the 90-day raises from late October 1964 to March 30, 1965. Most
certainly, the Company cannot argue that it decided, in October, to withhold the
raises because of anything the Union did or did not do and, in view of all the
facts, I cannot find that it continued to withhold them only or even primarily
because of anything the Union did or did not do. In fact, in its March letter to
the employees, the Company explained the withholding of the raises not on the
grounds of anything that happened or did not happen during negotiations but
stated only that they had been withheld "because of the Union's organizational
campaign"; i e., the events which occurred before the Union was certified.
As in most Board cases, the conclusions reached depend upon the Respondent's
entire course of conduct and the reasonable inferences which can be drawn from
what it did or did not say, did or did not do while the events were taking place,
and the context in which the various events occurred. Having considered the
entire record, including the Company's attitude toward the Union and collective-
bargaining generally, the fact that the raise problem was created by the Com-
pany's unfair labor practice a month before the election, the Union's lack of
complete and accurate information about the raise practices before and/or after
the petition was filed, the Company's failure to bargain in good faith, its failure
to supply information on request, the fact that the Company did not withhold
the raises originally or thereafter because of anything the Union did or did not
do, the absence of an impasse in the bargaining generally or about the raises in
particular, the timing of the increases and their cancellation a week later, the
Company's position that wage rates had been established by its promises to
(agreements with) the employees, its demonstrated preference for dealing with
the employees individually in other respects, its statement that it was none of the
Union's "goddamn business" when asked if it was pleading inability to grant a
general wage increase, the absence of prior bargaining with or notice to the Union
either before the increases were given or were canceled, I conclude that the grant-
ing of the increases on March 30, after a strike vote was announced, and their
cancellation on April 7, after the employees voted overwhelmingly to strike, were
motivated by the Company's hostile attitude toward the Union, its preference
for dealing with the employees individually, its position that the wage rates had
been established by its promises to the employees, and a desire to undermine the
Union's position and prestige. The same facts also convince me that the Company
did not rescind the increases in an attempt to remedy an alleged unfair labor
practice but instead seized upon the charge as an excuse to rescind the increases
which had failed to prevent the employees from voting to strike. Cf. Albuquerque
Phoenix Express, 153 NLRB 430. Under these circumstances, I cannot find that
MAY ALUMINUM, INC. 617
the Company's unilateral action in granting the increases was cured by its sub-
sequent unilateral action in rescinding them or that the filing of a charge of
unilateral action justified another unilateral act by the Company. It follows, there-
fore, and I find that a preponderance of the evidence on the record as a whole
supports the allegations of the complaint that Respondent refused to bargain with
the Union, in violation of Section 8(a)(5) and (1) of the Act, by unilaterally
granting the March increases and by unilaterally rescinding them on April 7.
4. The conclusion that the strike was an unfair labor practice strike
There is no evidence that the Union had considered calling a strike until after
the company-union meeting on March 25. The Union had been certified for nearly
4 months and the March 25 meeting was the eleventh between the parties since
the negotiations began in early January. The non-monetary clauses in the Union's
proposed contract had been discussed twice, some agreements had been reached
and the Company had made some counterproposals. However, little or no progress
had been made in reaching agreement on such clauses as seniority, checkoff, and
subcontracting. After almost 3 months of negotiations, important clauses such as
the management rights clause had not been discussed because President May
wanted to check them with his attorney. The Company had refused to agree to
tell the Union the reason why an employee had been disciplined or discharged and'
when a question about the delivery man came up, May had threatened to take
him out of the unit.
On March 25, the subject of wages was discussed for the first time and Presi-
dent May stated that he would say "damn quick" that he was not going to do a^
"damn" thing about wages, that he was going to pay the employees exactly what
he had promised them when they were hired. He reminded the Union that it had'
made promises of its own and invited it to make good on them. When it was
suggested that the jobs be evaluated by an arbitrator, May said he would evaluate
his own jobs.
Immediately after the March 25 meeting, Union Representative White prepared
notices scheduling a union meeting to take a strike vote. However, the meeting
was not to be held immediately but on April 1, a week later. In the meantime,
White called the Mediation Service and asked that one of its representatives
schedule a company-union meeting and be present to assist the parties in reaching
agreement.
Copies of the strike-vote meeting notice were given to Personnel Manager Bur-
gess and on March 30, 2 days before the date for the strike-vote meeting, the
Company granted approximately 90 wage increases, some amounting to 2% cents
and some to 5 cents an hour.
When the Union meeting was held, White described the negotiations generally
and asserted that the Company had refused "completely" to negotiate about wages,
pointed out that it gave them raises, and expressed the opinion that a strike was
the only way the Union could get the Company to negotiate in good faith. Local
President McElroy told the men that the Company had said it would evaulate its
own jobs, that it was going to pay exactly what it had promised the employees
when they were hired, referred to the Union's lack of information about these
promises, and the absence of advance notice that raises were going to be given.
In his opinion, McElroy said, the Company was "just more or less refusing to
recognize the Union," had decided to "go round the Union" and was going to
deal with the employees individually.
The employees voted to strike by 88 to 2. But, again, no date was set and, in
fact, the strike did not begin for another week. In the intervening period, the
Union sought to arrange another company-union meeting but was told that no
meeting could be held until April 15. It also filed an unfair labor practice charge
based on the unilateral wage increase and on April 7, without prior notice to or
discussion with the Union, the Company rescinded the increase 71 The strike began
on April 8.
It has been found that the Company's March 25 statement about wages meant
that the pay rates had been established when the Company made promises to
(agreements with) the employees, that the rates would be those promised and
that bargaining on wages would be futile. It has also been found that the Com-
'a At the March 25 meeting, the Union requested information concerning the cost of
insurance but it was never given the information.
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany's practice of giving periodic increases had not been explained to or discussed
with the Union and that, therefore, no "impasse" had been reached which per-
mitted the Company to go ahead and give the increases . In addition, it has been
found that the Company made no effort to discuss the subject with the Union
after the charge was filed but, instead, unilaterally rescinded the wage increases.
Having considered the above facts, I find that the Company's refusal to bargain,
particularly about wages, and the unilateral increases were the major if not the only
causes of the strike and that the strike, therefore, was caused in whole or in part
by the Company's unfair labor practices. I also find that the Company's position at
the bargaining sessions after the strike began, particularly its repetition of its posi-
tion on wages and its proposals on subcontracting, plant closure, and the rates for
new jobs, served to prolong the strike.
The purpose of all strikes is to exert pressure upon the employer and it is well
established that a strike may be an unfair labor practice strike even though the
unfair labor practices were not the sole cause of the strike. In short, the fact that
the Union may have hoped also to cause the Company to grant increases as well as
to cause it to bargain in good faith is immaterial. N.L.R.B. v. Birmingham Publish-
ing Company, 262 F.2d 2, 9-10 (C.A. 5). It may also be that even if the Company
had bargained in good faith about wages, a strike would have been called eventually
if the Union had been unable to persuade the Company to grant a wage increase.
However, the Company's actions made it impossible for it or anyone else to say
what would have happened had there been good-faith bargaining.
5. The Company's failure to furnish information, on request, and its unilateral
transfer of jobs out of the unit, both in violation of Section 8(a)(5) and (1) of
the Act
As set forth supra, the day the strike ended the Union requested the Company to
furnish it with a list of all of the strikers, their rates of pay, dates of hire, and job clas-
sifications, at least one reason for its request being that the Union wanted to be
able to determine whether the strikers were being returned to their former jobs. It
is undisputed that the Company never gave the Union the information about the job
classifications and that it gave the other information only a few days before the
hearing opened and more than 2 months after the Union requested it. It is well
established that the union is entitled, upon request, to information concerning the
employees' status and benefits and that an employer' s failure to furnish such infor-
mation , upon request, violates Section 8(a) (5) and (1) of the Act. I find, there-
fore, that Respondent violated Section 8(a)(5) and (1) of the Act by failing to
furnish the Union, on request, the job classifications of the strikers and by failing to
furnish the other requested information for more than 2 months. International
Woodworkers of America, Local Unions 6-7 and 6-122 v. N.L.R.B, 263 F 2d 483,
484-485 (C.A.D.C.); N.L.R.B. v. Item Company, 220 F.2d 956, 958 (C.A. 5).
On May 4, a question came up about the die-shop employees who had returned
to work as metal checkers and President May said that "As of right now," the metal
checkers were in the engineering department; i.e., a department which is not within
the bargaining unit. May's answer was that he had a right to move employees as he
wished and that he had always moved them from one job to another and promoted
them to nonunit jobs, such as to jobs in the office, and that he did not think he had
to bargain about transferring the metal checkers to the engineering department. (At
the hearing, May expressed the opinion that he could take such action as long as
there was no collective-bargaining contract.)
May was failing to distinguish between the routine assignment of employees to
different jobs within the unit and the promotion of individual employees to the office
which meant that they were no longer in the unit as individuals but did not mean
that their former jobs were no longer in the unit. In the case of the metal checkers,
May was transferring the jobs out of the unit, thereby reducing the amount of unit
work and the effect of his announcement did not differ, in principle, from a sudden
announcement that unit work would be subcontracted Moreover, having considered
the context in which May made the statement and the Company's entire course of
conduct, I find that May's purpose was to avoid having to bargain with the Union
about the reinstatement of the die shop employees and to remove the union officers,
who worked in the die shops, out of the unit. See, for example, May's charge that
the die men had "sabotaged" him, i e, by striking.
For the foregoing reasons, I find that the Company violated Section 8(a) (5) and
,(1) of the Act by announcing that it was transferring the jobs of metal checkers out
MAY ALUMINUM, INC. 619
of the unit . Cf. N.L.R.B. v. American Mfg. Co. of Texas, 351 F.2d 74, 79 (C.A. 5);
Town & Country Manufacturing Company, 136 NLRB 1022, enfd . 316 F 2d 846
(C.A. 5); N.L.R.B. v. Brown -Dunkin Company, Inc., 287 F.2d 17, 20 (C.A. 10).
6. The conclusions with respect to the strikers who were not reinstated
It is undisputed that a few days after the strike ended, strikers Frank Foisner,
Godfrey Garza, Joskie Jenkins, Donald Jones, Richard Jones, C. L. Miller, Jr., Joe
Nunez, John Nunez, and Baldermo Vallejo were hired as new employees because
their jobs had been filled during the strike. Because the strike was caused and pro-
longed, in whole or in part, by Respondent's unfair labor practices, the Company
was required to reinstate all strikers, upon the Union's unconditional application,
even if it had to discharge replacements hired during the strike. N.L.R.B. v. E. L.
Dell, t/a Waycross Machine Shop, 283 F.2d 733, 741 (C.A. 5). It follows, therefore,
and I find that Respondent has never offered to reinstate these strikers to their pre-
strike jobs, at their prestrike rates of pay and with all of their accumulated benefits,
and that it is under an obligation to do so.
As set forth below, most of the other strikers who were denied reinstatement were
also denied it because their jobs had been filled and, at most, were offered jobs as
new employees, i.e., in the shipping department at the beginning rate of $1.25 an
hour without any seniority or other benefits they may have acquired before the
strike. In some cases, the strikers were denied reinstatement because they failed to
report by the deadlines set forth in the telegrams which failure was caused either by
the fact that they did not receive the telegrams or did not receive them promptly.
One striker was unable to go to the plant due to illness in the family. Each striker
who had received no job offer prior to the hearing, did so at the hearing but the
offers made at that time were offers to hire them as new employees.
The Company's obligations to the other strikers not offered full reinstatement are
set forth below.
Dennis Edward Baros did not receive the April 27 telegram but the Union told
him, after the 3 p.m. April 29 deadline, to go to the plant and ask to return to work.
Baros' baby was seriously ill and he could not go until May 10 at which time he
was told that his job was filled. (He had no telephone.) He was told that he would
be notified if a job became available but he was not on the list of strikers to whom
the May 5 telegram was sent and received no job offer until the hearing. The May 5
telegrams offered the strikers jobs as new employees.
Respondent did not claim at any time that Baros' job was filled between April 29
and May 10. Of course, the fact that Baros' job was filled during the strike did not
justify the Company's failure to reinstate him.
On May 10, Baros told Personnel Manager Burgess that he had not received the
April 27 telegram and by going to the plant put the Company on notice that he
wanted to return to work. Baros was entitled to reinstatement on the earliest pos-
sible date thereafter. Jay Company, Inc., 103 NLRB 1645, 1647
Although Baros and some of the other strikers failed to fill out applications for
employment as new hires, unfair labor practice strikers are under no obligation to
fill out such applications as a condition for reinstatement. N.L.R.B. v. Ozark Dam
Constructors, 203 F.2d 139, 147 (C.A. 8); California Cotton Cooperative Associa-
tion, Ltd., 110 NLRB 1494, 1500-01.
Zeb William Bennett did not receive the April 27 telegram until the afternoon of
April 29 when he got home from work. (Western Union delivered it the day before
to Bennett's 8-year-old daughter and no one mentioned it until Bennett asked about
a telegram, having heard that others had received telegrams.) He called Burgess
between 4 and 5 p.m. on April 29, i.e., an hour or two after the deadline, and
Burgess told Bennett that he was "too late" and repeated his statement the next
morning. Although there is no claim that the Company had hired a replacement for
Bennett in the 2 hours or less between the deadline and Bennett's call, the Company
did not send him the May 5 telegram and he received no job offer until the hearing
when he was offered employment as a new employee.
In the absence of a claim that Bennett had been replaced in the less than 2 hours
between the deadline and his call to Burgess, the Company's refusal to reinstate him
casts doubt upon its claim that it acted reasonably and in good faith in setting a
deadline which allowed a number of the strikers 30 or even fewer hours in fact
within which to "apply" for reinstatement, i.e., between the morning of April 28 or
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
later , when a number of the telegrams were delivered , and the deadline 72 Both the
reasonableness and good faith of the Company 's treatment of the strikers is also,
negated by its complete lack of interest in the reasons why the strikers were `late"
as, for example , their failure to get the telegrams through no fault of their own. As
far as Respondent was concerned , it was enough that they were "late" if only by a
few hours although their jobs had not been filled in the intervening period.
As in the instant case , telegrams and mail are not always delivered promptly or
at all, the addressees may be away from home because they are looking for or have
found work elsewhere . They may not know where they will be or may not have
made arrangements for their families to notify them that a telegram has been
received particularly if, as one striker put it here , they have no reason to expect a
prompt job offer from the Company. In addition , their families may not have the
money to pay for a long distance call and /or the strikers may not have the money
to pay for a long distance call to the Company . On the other hand , if they stay at
home waiting for word from the Company , they may be accused of willful idleness.
Having considered the absence of a claim that Bennett 's job was filled between 3
and 5 p.m. on April 29, the fact that Bennett called promptly upon learning about
the April 27 telegram thereby putting the Company on notice that he wanted his
job back, and Respondent 's position that the strikers were disqualified if they missed
the deadline by even a few hours , without regard to the reason, I conclude that
Bennett was not afforded a reasonable period within which to "apply" for reinstate-
ment and that he was entitled to reinstatement at whatever time he would have
returned to work had he called Burgess before the deadline.
Western Union , the agent selected by Respondent , must have known that a tele-
gram delivered to an 8-year-old child might not be delivered to her father promptly
or perhaps not at all. But Respondent 's attitude toward Bennett's late application
shifted the penalty for the late receipt of the telegram to Bennett in a situation in
which he was in no way at fault and in which his statutory rights and the Com-
pany's obligation to offer him reinstatement were involved.
Norman Brandl received the April 27 telegram , went to the plant before the
deadline and was told his job was filled . The May 5 telegram , offering him a job
as a new employee , was mailed to him but he did not receive it and he did not
learn that other strikers had received telegrams.
As an unfair labor practice striker, Brandl was entitled to reinstatement even if
his job had been filled and it was Respondent 's failure to reinstate Brandl on or
about April 29, on the ground that his job was filled, that necessitated the sending
of the May 5 telegram . In other words , to allow the Company to rely successfully
upon Brandl 's failure to come to the plant because he did not receive the May 5
telegram , would mean that it would profit by its own failure to meet its obligation
on April 28 and, instead , would permit the Company to shift the resulting losses
to the employee whose rights it had violated by failing to reinstate him within a
reasonable time after he went to the plant on April 28.
Moreover, even if Brandl had received the May 5 telegram , he would not have
been offered full reinstatement , i.e., to his prestrike job at his old rate and with all
accumulated rights, but only a job as a new hire. To require a striker to accept less.
than full reinstatement or lose his right to reinstatement and backpay would encour-
age employers to offer strikers less than full reinstatement in the hope that they
would decline the offers and thereby terminate or, at least, reduce the employer's
liability. Such a result, of course, would mean that an employer would profit by
failing to meet its statutory obligation to offer full reinstatement to unfair labor
practice strikers . In addition , if strikers were required to accept less than full rein-
statement , all employees would be put on notice that the company might penalize
them in the future , barring litigation , if they exercised their rights under the Act,
including the right to engage in an unfair labor practice strike.
Having failed to offer Brandl reinstatement when he went to the plant on
April 28, I conclude that the Company 's obligation to reinstate him continues until
a full offer of reinstatement is made.
Benito Delgado went to the plant before the April 29 deadline and was told his,
job was filled. He heard about the May 5 telegram , again went to the plant before
the deadline and turned down a job as a new employee. As indicated previously,
the Company was required to offer Delgado full reinstatement when he first went
Ti Respondent must have known that a number of strikers did not have telephones, that
others lived outside of the delivery area and that their telegrams would have to be mailed
to them,
MAY ALUMINUM, INC. 621
to the plant , even though his job had been filled and to permit the Company to
avoid all further liability or to reduce its liability by offering less than full rein-
statement would encourage employers to make such offers in the hope that they
would be turned down. As a matter of fact, offers of less than full reinstatement
are in themselves violations of Section 8(a)(3) of the Act. California Cotton Coop-
erative Association , Ltd, 110 NLRB 1494, 1500. See also N.L R.B. v. Armour &
Co., 154 F.2d 570, 577 (C.A. 10 ). Accordingly , I conclude that Respondent is
required to offer Delgado full reinstatement.
Eliborio Delgado received the April 27 telegram , went to the plant before the
deadline, and was told his job was filled . He did not receive the May 5 telegram
and did not know others had received them. This is another case in which the situ-
ation was created by the Company 's failure to reinstate Delgado when he responded
to the April 27 telegram . If it had done so, a second telegram would have been
unnecessary . And, again , even if the May 5 telegram had been received , it offered
Delgado less than full reinstatement; i.e., employment as a new employee . In short,
Respondent has never offered Delgado full reinstatement and is obligated to do so.
Rayfield Gardner received the April 27 telegram, went to the plant before the
deadline, and was told that his job had been filled . Although the May 5 telegram
was delivered to his home , he was working 100 miles away and did not get it until
after the deadline. As a result, he was unable to "apply" on time and, from the
experience of Bennett , supra, it would have been futile for him to "apply" after
the deadline . He did call the plant twice , was told Burgess was not there , to leave
his name and address, and that Burgess would call him . Burgess did not call
Gardner.
Again , it was only because Respondent failed to reinstate Gardner when lie
went to the plant in response to the first telegram , that a second telegram was
necessary . Moreover , the May 5 telegram would have offered him employment only
as a new employee.
Gardner is entitled to an offer of full reinstatement , an offer which admittedly
has never been made.
Geronimo Gonzales was also told on April 28 that his job was filled and the
second telegram was necessitated only by the fact that he was not promptly rein-
stated when he went to the plant originally . Likewise , the second telegram was
.only an offer of a job as a new employee so that even if he had not been out of
town and had reported by the deadline stated therein, he would still not have been
offered full reinstatement . It follows, therefore , as in the other cases, that Gonzales
has never been offered full reinstatement and is entitled to such an offer.
Jesse Lopez , Jr., is the striker who was persuaded by the "boys" in the plant to
return to work and did so for 1 night. He "just didn 't feel good" about working
while his friends were striking but decided to stay once he was there. He was
assigned to the job of an absent employee and was told that another job would
be found for him when that employee returned . As Lopez' foreman was coming to
work the next afternoon , Lopez was on the picket line and it is undisputed that
he told the foreman that he would not be working that night.
Although the Company did not send Lopez either telegram , he saw a copy of
the first one and went to the plant before the deadline . He was told by Personnel
Manager Burgess that he was "fired ," apparently because he had worked 1 night
and had not reported that he would not be back again . Lopez replied that he had
told the foreman but Burgess said he had received no report . Burgess also said
that Lopez' job had been filled but gave him an application and told him that he
would be recalled when there was an opening. Lopez filled out the application and
returned it to a secretary after being told that Burgess was busy.
Respondent offered no explanation , either at the hearing or in its brief, for its
failure to recall Lopez . Of course , the fact that his job was filled, as he was told
by Burgess , is immaterial , the strike having been an unfair labor practice strike. If,
as Burgess also asserted , Lopez was "fired" for not having told his supervisor that
he would not report for work, after having worked one night during 'the strike, it
is undisputed that Lopez did tell his foreman.
- Lopez' return to work for 1 night during the strike clearly was not for the pur-
pose of harrassing the Company and, equally clearly, he was not attempting to set
his own work schedule, as opposed to the one established by the Company. As he
put it, he needed to work, he was talked into returning for I night but he did not
feel "right" about doing so and rejoined the strike . If Respondent 's position eventu-
ally is that Lopez was "fired" for resuming his status as an unfair labor practice
striker , it is without merit. Cf. N.L.R B. v. West Coast Casket Co ., 205 F:2d 902,
908 (C.A. 9).
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In sum, Lopez was an untair labor practice striker who was entitled to reinstate-
ment, upon unconditional application, even if his job had been filled and his return
to work for I night did not justify the Company's failure to offer him a job when
he went to the plant before the first deadline. Respondent's obligation to offer Lopez
reinstatement continues until such an offer is made.
Michael Malandrakis received the first telegram, reported before the deadline and
was told to call the next day because Burgess had not yet determined whether
Malandrakis' job was open. His job was available but when he called the next day,
he was told that Burgess was out. However, he left his name and address and was
told that Burgess would call him. He called a second time a day or two later but was
told again that Burgess was not available and again left his name. About 11/z or 2
weeks after the strike, he went to the plant and was told again that Burgess could
not see him. Malandrakis was given an application to fill out and as he was doing
so, he spoke to Burgess but the latter said nothing about reinstating Malandrakis.
As noted supra, the Company treated the Union's unconditional application for
reinstatement as nothing more than a notice that the strike was over, required the
strikers to apply individually and made no effort to determine whether a striker's
job was available until he had told the Company, in person, that he wanted to
return to work. But for Respondent's attitude, Malandrakis would have been told,
when he came to the plant before the April 29 deadline, when to report to work
and it would not have been necessary for him to call or come in a second time.
Malandrakis was working in the oil fields and the requirement that he come to
the plant twice and keep coming or calling until he reached Burgess (as claimed by
Burgess) worked some hardship on him. Moreover, it is undenied that when he
called the plant, he was told in fact to leave his name and address and that Burgess
would call him. Finally, he was not reinstated when he both talked to Burgess and
filled out his application 2 weeks or less after the strike ended.
On the basis of the above facts, including the requirement that he apply in per-
son, which was the reason why a second call was necessary, the Company's placing
of the burden on Malandrakis, after one call, to keep calling to find out whether he
would be reinstated, his instructions to leave his name and Burgess would call him,
the Company's failure to reinstate Malandrakis even when he talked to Burgess and
filled out an application, I conclude that the Company did not fulfill its obligation to.
offer Malandrakis reinstatement after an application both by the Union and by
Malandrakis in person. Its obligation continues until an offer is in fact made.
Lee Roy North learned about the first telegram about 10:30 p.m. on April 28.
Because there was no one else to stay with his five, small children on April 29, he
did not get to the plant before the deadline. When he got there a few hours late,
Burgess had gone and he returned the next day and explained to Burgess that he
could not get to the plant the day before. Burgess told North that his job was filled.
However, there is no claim that North's job had been filled between the deadline
and his conversation with Burgess on April 30. He was offered no job until the
hearing when the Company offered to hire him as a new employee.
Again, it is clear that North would not have been offered full reinstatement if
he had been able to go to the plant before the deadline. It follows, therefore,
that his inability to report before the deadline was not the reason for the Com-
pany's failure to fully reinstate him. North has never been offered full reinstate-
ment and the Company's obligation continues until such an offer is made 73
In sum not a single striker turned down a firm offer of reinstatement and the
Company was prepared to offer only one of the strikers named in the complaint
full reinstatement. In most cases, the strikers made timely applications, even under
Respondent's own standards, but were denied reinstatement on the ground that
their jobs were filled thereby creating the necessity for the second telegram.
Moreover, except in the case of Malandrakis, the strikers would have been offered'
only jobs as new employees which offers constituted a violation of Section 8(a)(3)
and (1) of the Act. California Cotton Cooperative Association Ltd., 110 NLRB
1094, 1500-0174
A similar problem was discussed by the court in N.L.R.B. v. Armour & Co.,
154 F.2d 570, 577 (C.A. 10), in which the employer offered employees lower
73 As noted supra, the names of four strikers were stricken from the complaint at the
hearing. Strikers Joskie Jenkins and C L Miller, Jr., were discharged in June and the
Company's liability in their cases ended at that time.
74 In its brief, Respondent does not discuss the situation of each individual striker but
argues only that the strike was an economic strike and that it acted reasonably.
MAY ALUMINUM, INC. 623
paying jobs because of their continued interest in the union. Some of them refused
the offers and the court agreed with the Board that they had been discriminatorily
discharged. The court also went on to say:
The [Board's] order directed Armour to make [the employees] whole by
payment to each of them a sum of money equal to that which he or she
would have normally earned [between the dates on which they refused the
lesser jobs and] the date of the offer of reinstatement, less [their] net earn-
ings during such period. Counsel for Armour contend that credit should be
allowed for earnings such employees would have earned at the jobs offered to
them by Armour . . . But [the] employees were not required to submit to
the discrimination as the price for Union affiliation. They were in effect dis-
charged from the jobs they were entitled to hold. Under the circumstances,
their refusal to accept the discriminatory jobs was not willful. While they
should be charged with earnings actually received and with earnings not
received because of the unjustifiable refusal to take desirable new employ-
ment, they should not, in our opinion, be charged with the earnings they
would have received at the discriminatory jobs proffered them.
As pointed out above, any other holding would encourage employers to offer
employees who had exercised their statutory rights less desirable jobs in the hope
that they would turn them down, as they did at Armour. Such a result would
defeat, rather than effectuate, the policies of the Act and would allow an employer
to profit from his own failure to meet his statutory obligation to offer full rein-
statement to unfair labor practice strikers upon an unconditional application by
the union or even in person.
In addition, the time allowed in which to apply was so short that it was almost
certain that any delay in the delivery or receipt of the telegrams would mean
that the strikers would be unable to make a timely (and legally unnecessary
application) in person. Moreover, the Company enforced the deadlines strictly
without regard to the employees' reasons for not making the deadlines even
though there is no evidence that it had hired replacements in the period between
the deadlines and the appearance of the strikers at the plant.75 And the May 5
telegrams, even if received, did not offer reinstatement but only jobs as new
employees.
As a defense to its failure to reinstate the strikers after the Union's uncondi-
tional application, the Company argues that Union Representative White was not
authorized to make an unconditional application on their behalf because the meet-
ing at which he was authorized to act was not conducted in accordance with the
Union's constitution and bylaws. This contention, even if factually correct, is
clearly without merit for the manner in which the Union conducts its internal
affairs is no concern of the Company. Cf. M & M Oldsmobile, Inc., 156 NLRB 903.
Moreover, White had been the chief spokesman for the certified bargaining
representative in the negotiations which had been in progress for months. In addi-
tion, following his unconditional application, virtually all of the strikers in fact
went to the plant immediately, many of them even before the Company's April 27'
telegrams were delivered. These facts provided Respondent with ample evidence
that White was speaking for the employees. In any event, when Respondent ques-
tioned White's authority, it had no knowledge about the manner in which the meet-
ing was conducted and had not the slightest basis for a good-faith doubt that he
was authorized to make the application.
Thereafter, the Company issued its April 27 invitations to the strikers to apply
for reinstatement in person and in every case the strikers named above in fact did
so, most of them immediately and the remaining few as quickly as the circum-
stances permitted.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of the
Act.
2. The Union is a labor organization within the meaning of the Act.
3. On and after December 1, 1964, the Union was the certified bargaining
representative of Respondent's employees in an appropriate bargaining unit.
76It is clear that all or most of the strikers who reported before the April 29 deadline
were reinstated on Monday, May 3, which means that those who reported after the dead-
line would not have been reinstated until Monday anyway. In other words, the fact that
they were a few hours or even a day late in reporting in no way inconvenienced the
Company.
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. By discontinuing the 90-day raises after the Union filed its petition in Octo-
ber 1964, by telling employees that they would be "through " or fired if they went
,on strike , and by telling a striker that the strikers had lost their rights and that
their prospects of promotion were slim, Respondent engaged in conduct which
interfered with, restrained , and coerced the employees in the exercise of the rights
guaranteed them by the Act in violation of Section 8 (a) (1) of the Act.
5. By refusing to bargain about wages , by failing to bargain in good faith with
the Union , by unilaterally granting wage increases on March 30, and by unilater-
ally rescinding them on April 7, Respondent violated Section 8(a)(5) and (1)
of the Act.
6. The strike was caused and prolonged , in whole or in part, by the Company's
unfair labor practices and was, therefore , an unfair labor practice strike.
7. By failing to furnish the Union with information upon request and by trans-
ferring a job classification out of the bargaining unit, without prior notice and
bargaining and in order to avoid bargaining and because the employees were the
officers of the Union , Respondent also violated Section 8 ( a) (5) and ( 1) of the Act.
8 By failing to reinstate certain unfair labor practice strikers , after an uncon-
ditional application by the Union and even after an unconditional application by
the strikers individually , Respondent violated Section 8(a)(3) and ( 1) of Act.
9. Respondent engaged in no unfair labor practices other than those summarized
in paragraphs 4, 5, 7, and 8, above
THE REMEDY
Having found that Respondent engaged in various unfair labor practices, the
Recommended Order will direct Respondent to cease and desist therefrom and to
take the affirmative action normally ordered in such cases . However, it appearing
from Respondent 's brief that a collective -bargaining agreement was subsequently
signed, some provisions normally included have been omitted.
Because Respondent withheld 90-day increases from its employees because they
sought to be represented by a union , the order will direct it to make whole, with
interest , any and all employees who failed to receive the 90-day raises they would
have received but for their union activity , i.e., in the period between the date on
which the last such increase was granted and the date on which the practice was
resumed. However no liability exists after the effective date of the collective-
bargaining contract . N L.R.B. v. Zelrich , 344 F.2d 1011 (C.A. 5).
Because Respondent has demonstrated its unwillingness either to furnish at all or
to furnish within a reasonable time information requested by the Union concerning
the employees ' job classifications and other information concerning the employees'
status and benefits, the order will direct Respondent to furnish such information on
request.
Because Respondent 's conduct in granting wage increases on March 30, in
rescinding them on April 7, and by transferring lob classifications out of the unit
constituted unilateral action, the order will direct Respondent not to act unilater-
ally except to the extent , if any, permitted by a current collective -bargaining agree-
ment. Needless to say, this provision will not apply during any period in which
there is no statutory bargaining representative.
Having violated the Act by transferring the jobs of metal checkers out of the
unit , the order will direct Respondent to return those jobs to the unit and if it
still wishes to transfer them out of the unit, to so notify the Union and bargain
with it, on request.
Because of Respondent 's failure to bargain in good faith , its unilateral action,
its threats of reprisals because of union activity , its discriminatory failure to rein-
state certain strikers after an unconditional application , which goes to the very
heart of the Act, it is reasonable to conclude , as I do, that Respondent may deny
its employees their statutory rights in these and other ways in the future, in the
absence of a broad order . The Recommended Order, therefore , will direct Respond-
ent not to discriminate against its employees in any manner or in any manner
deny them their statutory rights. N.L .R.B. v. Entwistle Mfg. Co., 120 F .2d 532,
536 (C.A. 4).
Because the Company refused and failed to reinstate certain unfair labor prac-
tice strikers upon the unconditional application of their bargaining representative
and even after they applied individually , it will be ordered to offer them imme-
diate and full reinstatement to their former or substantially equivalent jobs with
all seniority and other benefits they enjoyed before the strike and would have
accumulated between the dates on which they were denied reinstatement and the
MAY ALUMINUM, INC. 625
dates on which they were offered full reinstatement. The order means, of course,
that Respondent is required to reinstate the strikers even though in order to do so,
it will have to discharge replacements hired during the strike or transfer them to
other jobs.
The order will also direct Respondent to make whole the strikers not fully rein-
stated and/or not offered reinstatement for any losses they may have suffered as a
result of the Company's failure to reinstate them within a reasonable period after
the Union's unconditional application for reinstatement on April 27, 1965. Any
backpay due will be determined in accordance with the formulas set forth in F. W.
Woohvoi th Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB
716.
Although the strikers were not required to accept discriminatory "reinstatement,"
some of them chose to do so in early May and others apparently did so during the
hearing. In these cases, Respondent's liability for backpay after the discriminatory
"reinstatement" will be the difference between their actual earnings and benefits
and those they would have received but for the Company's failure to reinstate them
fully.
The periods during which Respondent is liable for backpay to the strikers who
either have never been offered full reinstatement and/or refused offers of less than
full reinstatement are as follows:
Dennis Edward Baros made it known to the Company on May 10, 1965, that he
wanted to return to work and the Company's liability will begin on that date and
will continue until he is offered full reinstatement. Jay Company, Inc., 103 NLRB
1645, 1647: If he accepted the discriminatory job offer made during the hearing,
the Company's liability thereafter will be the difference between his actual earn-
ings and benefits and those he would have received if he had been reinstated fully.
Zeb William Bennett went to the plant on April 29 and 30 thereby notifying the
Company that he wanted to return to work. There being no evidence that his job
had been filled between the April 29 deadline and the time he reported, the Com-
pany's liability continues until he is offered full reinstatement. If he accepted the
discriminatory offer made at the hearing, Respondent's liability thereafter will be
determined on the same basis as provided in the case of Baros.
Norman Brandl went to the plant before the first deadline and was denied rein-
statement on the ground that his job was filled thus creating the necessity for the
second telegram which he did not receive. His only job offer from the Company
was the one made at the hearing. The Company's liability continues until it offers
him full reinstatement; however, if he accepted the discriminatory offer, the for-
mula for computing liability thereafter will be the same as in the other cases.
Benito Delgado notified the Company, in person, on or before April 29, that he
wanted his job back, was offered discriminatory "reinstatement" on the ground that
his job` had been filled. Accordingly, the Company's liability continues until an offer
of full reinstatement has been made subject to the reduction allowed in the other
cases if he accepted the offer, made at the hearing.
Eliborio Delgado went to the plant before the deadline, was refused reinstatement
on the ground that his job had been filled, thereby necessitating the second tele-
gram which he did not receive. As a result, his only offer from the Company was
the one made at the hearing and the Company's liability continues until a full
offer is made subject to the reduction previously stated if he accepted that offer.
Rayfield Gardner went to the plant promptly, was told his job was filled, thus
making necessary the second telegram which he did not receive until after the
deadline. His only job offer was the one made during the hearing and the Com-
pany's liability continues until he is offered full reinstatement subject to the same
reduction if he accepted the offer made during the hearing.
Geronimo Gonzales made a timely appearance at the plant, was denied reinstate-
ment because his job was filled thereby necessitating the second telegram which he
did not receive until after the deadline . His only job offer was the one made at the
hearing. The Company's liability is the same as in the case of Gardner.
Jesse Lopez, Jr., was not offered a job until the hearing at which time he received
the same discriminatory offer made to the others. The Company's liability before
and after that offer will be the same as that in the previous cases.
Michael'Malandrakis would have returned to work had he been offered his job
when ' he went to the plant before the deadline. When he went a second time, he
was told Burgess would call him. In short, the first job offer actually made was
the discriminatory offer made at the hearing and the Company's liability is the
same as in the previous cases.
257-551-67-vol. 160-41
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lee Roy North notified the Company on April 30 that he wanted to return to,
work, his job had not been filled, but he was offered no job until the hearing. The
Company's liability is the same as in the previous cases.
Joskie Jenkins and C. L. Miller, Jr., were discharged in June. However, the Com-
pany's liability prior to the discharges is to be determined in the same manner as
its liability to the other strikers who accepted the Company's offer to return to,
work as new employees.
Of course, it does not necessarily follow that the Company's liability to the
strikers who refused discriminatory job offers is increased by their action for they
may have been working at or may have obtained thereafter jobs which paid more
than those offered by the Company. In any event, the Company should not be per-
mitted to have its cake and eat it too, i.e., it should not be permitted to engage
in unfair labor practices which cause and prolong, at least in part, a strike, to
ignore thereafter the Union's application for reinstatement, and to violate the Act
again by making discriminatory job offers and then profit, at the expense of the
employees, because it offered less than full reinstatement. (Indeed, this is exactly
what it did in the cases of the strikers who accepted the discriminatory offers.)
It must be remembered that although the Respondent's unfair labor practices
were a major cause of the strike, it was always within the Company's power to
avoid all backpay liability by reinstating the strikers when the Union made an
unconditional application on their behalf or even when they went to the plant
individually. Having chosen to do neither, it alone is responsible for its liability to
any striker. (As pointed out above, not one striker who received notice to report
to work failed to do so.)
On the basis of the above findings of fact, conclusions of law, and the entire
record, and having considered the brief filed by the General Counsel and the one
filed by the Respondent, I issue the following:
RECOMMENDED ORDER
May Aluminum, Inc., its officers, agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Threatening employees with reprisals if they strike, or because they have
engaged in a strike or because they engage in other activity protected by the Act.
(b) Withholding, because employees engage in protected activity, any periodic
wage increases normally given.
(c) Failing to furnish or failing to furnish within a reasonable time information
requested by the Union concerning the job classifications, dates of hire, and similar
information concerning the status and benefits of employees.
(d) Discouraging membership in Aluminum Workers International Union, AFL-
CIO, Local 201, or in any other labor organization, by failing to reinstate unfair
labor practice strikers, upon unconditional application, or by discriminating in any
other manner against employees because they have engaged in activity protected by
the Act.
(e) Making changes in the terms and conditions of employment of the employees
in the bargaining unit and transferring jobs out of the bargaining unit without prior
notice to the Union and bargaining with it,-on request, except to the extent, if any,
that unilateral action is permitted by an effective collective-bargaining contract.
(f) In any other manner failing to bargain with the statutory representative of its
employees and interfering with, restraining, or coercing its employees in the exercise
of the rights guaranteed them by the Act.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Furnish the Union, upon request and within a reasonable time, information
concerning employee job classifications and other information concerning employee
status or benefits.
(b) Return the jobs of metal checkers to the bargaining unit and if the Company
wishes, thereafter, to transfer them out of the Union, notify the Union of its plans
and bargain with it, upon request.
(c) Notify the Union and bargain, on request, with respect to any proposed
changes in the terms and conditions of employment of employees in the unit unless
the Company is permitted to act unilaterally by an effective collective- bargaining
agreement.
(d) Make all employees whole, in the manner set forth in the section entitled
"The Remedy," for any losses they may have suffered by reason of the Company's
withholding of the 90-day raises.
MAY ALUMINUM, INC. 627
(e) Offer strikers Frank Foisner, Godfrey Garza, Donald Jones, Richard Jones,
Joe Nunez, John Nunez, Baldermo Vallejo, Dennis Edward Baros, Zeb William
Bennett, Norman Brandl, Benito Delgado, Eliborio Delgado, Rayfield Gardner,
Geronimo Gonzales, Jesse Lopez, Jr., Michael Malandrakis, and Lee Roy North
full and immediate reinstatement to their prestrike or substantially equivalent jobs
with all of the rights and benefits they would have accumulated but for the dis-
crimination against them, discharging, if necessary, any replacement hired during
the strike. Make each of the above-named strikers and strikers Joskie Jenkins and
C. L. Miller, Jr., whole, in the manner set forth in the section entitled "The
Remedy," for any and all losses each may have suffered by reason of Respondent's
failure to reinstate them within a reasonable time after the unconditional application
for reinstatement made by the Union. Notify each of the named employees if pres-
ently serving in the Armed Forces of the United States of his right to full reinstate-
ment upon application in accordance with the Selective Service Act and the Uni-
versal Military Training and Service Act, as amended, after discharge from the
Armed Forces. Make available to the Board or its agents all records necessary to
determine the amount due each employee.
(f) Post at its plant at El Campo, Texas, copies of the attached notice marked
"Appendix." 76 Copies of said notice, to be furnished by the Regional Director for
Region 23, after being duly signed by the Respondent's representative, shall be
posted by Respondent immediately upon receipt thereof, and he maintained by it
for 60 consecutive days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered, defaced, or covered by any
other material.
(g) Notify the Regional Director for Region 23, in writing, within 20 days from
the date of receipt of this Decision , what steps the Respondent has taken to comply
herewith.77
IT IS HEREBY FURTHER RECOMMENDED that the complaint be dismissed in other
respects.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT threaten employees with discharge, loss of benefits, including
the chance of promotion, or with any other punishment if they engage in a
strike or because they have engaged in a strike or because they engage in any
other activity protected by the Act.
WE WILL NOT fail to give the periodic raises, if any, normally given employ-
ees under the Company's policies or its contract with the Union, because they
engage in or have engaged in activity protected by the Act.
WE WILL NOT fail to furnish Aluminum Workers International Union, AFL-
CIO, Local 201, on request, with information concerning the jobs held by
employees and other information about their employment by the Company and
benefits they are receiving.
WE WILL NOT transfer jobs out cf the 'bargaining unit or make any changes
in the employees' pay rates or other terms and conditions of employment with-
out notice to the Union, or 'any other employee statutory representative, and
without bargaining with it, upon request, unless an effective company-union
contract permits such action.
76 In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. If the Board's Order is enforced by a decree of a United
States Court of Appeals, the notice will be further amended by the substitution of the
words "a Decree of the United States Court of Appeals Enforcing an Order" 'for',the NN ords
"a Decision and Order."
11 In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read : "Notify the Regional Director for Region 23, in writing, within
10 days from the date of this Order, what steps the Respondent has taken to comply
herewith."
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discourage membership in or activity on behalf of Aluminum
Workers International, AFL-CIO, Local 201, or any other labor organization,
by failing to reinstate unfair labor practice strikers to their prestrike jobs, upon
the unconditional application of the Union, or by discriminating in any other
manner against employees because they engage in activity protected by the Act.
WE WILL NOT interfere with, restrain, or coerce our employees in the exercise
of their rights under the Act or in any other manner deny them such rights.
WE WILL make whole, with interest, all employees who have failed to receive
the 90-day increases, which they normally would have received between
November 1, 1964, and the effective date of any collective-bargaining contract
between the Company and the Aluminum Workers International Union,
AFL-CIO, Local 201.
WE WILL furnish the Union, upon request and within a reasonable time,
information concerning the job classifications of the employees and other
information about their employment by the Company and benefits they are
receiving.
WE WILL notify the Union or any other statutory bargaining representative
and bargain on request, with respect to any proposed changes in the wages,
hours, or other terms or conditions of employment except to the extent that any
company-union contract gives the Company the right to act without prior notice
and bargaining.
WE WILL return the jobs of metal checkers to the bargaining unit and if we
desire to transfer them out of the unit in the future, WE WILL notify the Union
of our plans and bargain concerning them, upon request.
WE WILL offer each striker listed below, not previously reinstated to his
prestrike job, reinstatement to that job or to a substantially equivalent job with
all seniority and other benefits he had accumulated before the strike and which
he would have accumulated had he been reinstated upon the unconditional
application of the Union.
Dennis Baros Rayfield Gardner Jesse Lopez, Jr.
Zeb W. Bennett Godfiey Garza Michael Malandrakis
Norman Brandl Geronimo Gonzales Lee Roy North
Benito Delgado Donald Jones Joe Nunez
Eliborio Delgado Richard Jones John Nunez
Fiank Foisner Baldermo Vallejo
WE WILL pay each striker listed below all money he failed to earn or for any
benefits he failed to receive because of our failure to reinstate him up to the
date on which we offered him full reinstatement to his prestrike or substantially
equivalent job with all of his accumulated benefits.
Dennis Baros Rayfield Gardner Michael Malandrakis
Zeb W. Bennett Godfrey Garza C. L. Miller, Jr.
Norman Brandl Geronimo Gonzales Lee Roy North
Benito Delgado Joskie Jenkins Joe Nunez
Eliborio Delgado Donald Jones John Nunez
Frank Foisner Richard Jones Baldermo Vallejo
Jesse Lopez, Jr.
All our employees are free to become or remain, or to refrain from becoming or
remaining, members of any labor organization.
MAY ALUMINUM, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act, as amended, after discharge from the Armed Forces.
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.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 6617
Federal Office Building, 515 Rusk Avenue, Houston, Texas 77002, Telephone
228-4722.