Mid-America Machinery Co.

National Labor Relations Board - Board Decisions

Dec 28, 1979

246 N.L.R.B. 1176 (N.L.R.B. 1979)

DECISIONS OF NATIONAI. LABOR RELATIONS BOARD
Mid-America Machinery Company and Metal and
Machinery Workers Industrial Union No. 440, af-
filiated with Industrial Workers of the World. Case
14 CA-1 1867
December 28., 1979
DECISION AND ORDER
By CHAIRMAN FANNIN; AND MEMBHIRS JNKINS
ANI) PENEIL.O
On August 15. 1979, Administrative Law Judge
Richard L. Denison issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions' of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Mid-America Machinery
Company. Virden, Illinois, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
' We note the following inadvertent error made by Administrative ;aw
Judge Denison. In sec. III of his Decision, he stated that the parties received
the Board's Decision in the earlier case- Mid-America Machinen, Compan.
238 NLRB 537 in May 1978. Hlowever, the Board's Decision in the earlier
case did not issue until September 27. 1978. Thus, Administrative L.aw Judge
Denison must have been referring to the fact that the parties in May
1978 would have received the Administrative L.aw Judge's [)ecision in the
earlier case. That Decision-of Administrative Law Judge Robert Mullin
issued on April 27. 1978. We conclude that this inadvertent error of Admin-
istrative Law Judge Denison does not warrant or lead to an) modification of'
his ultimate findings and conclusions.
DECISION
SIAI I1MN'I oUF 111: CASE
Ri(lARI) I.. DI)INISON, Administrative .aw Judge: This
case was heard in Carlinville, Illinois. on January 10. 1979.
based on a charge filed by Metal and Machinery Workers
Industrial Union No. 440, affiliated with Industrial Work-
ers of the World. on September 28. 1978.' The complaint.
All dates are in 1978 unless otherwise specified.
issued on November 14, alleges that following the Board's
Decision in Mid-America Machinerv ('ompan v. 238 NLRB
537. in which the Respondent Company was found to have
violated Section 8(a)( I), (3), and (5) of the National Labor
Relations Act, as amended, and ordered to bargain with the
Charging Party, Respondent failed and retfused to reinstate
employee Robert Swaggerty on or about September 8. fol-
lowing an unconditional offer to return to work from a
strike protesting Respondent's unfair labor practices in con-
tinuing to refuse to recognize and bargain with the Union
as ordered by the Board.
Respondent's answer denies the allegations of unfair la-
bor practices alleged in the complaint.
Upon the entire record in the case, including my consid-
eration of the briefs and observation of the witnesses, I
make the following:
FINI)IN(;S () FA(I
I. JRISDI(TIO()N
As alleged in the complaint and admitted in the answer. I
find that. at all times material herein, Respondent is and
has been an Illinois corporation whose sole office and place
of business is located in Virden, Illinois, where Respondent
engages in the business of the nonretail repair, sale, and
distribution of used construction machinery and parts. Dur-
ing the calendar year ending October 31, a representative
period. Respondent, in the course and conduct of its busi-
ness operations, repaired, sold, and distributed from its
shop in Virden, products valued in excess of $50.000 which
were shipped directly to points outside the State of Illinois.
I find that Respondent is an employer engaged in com-
merce within the meaning of Section 2(2). (6). and (7) of the
Act.
II. I AllOR ()R(iANIZATIO()N
Metal and Machinery Workers Industrial Union No.
440. affiliated with Industrial Workers of the World. hereaf-
ter referred to as the Union or the Charging Party. is a
labor organization within the meaning of Section 2(5) of the
Act.
ii. 111 UNFAIR AB()R PRA(II('ES
This case arises from a union organizational drive which
began among Respondent's employees in mid-July 1977.
and was the subject of a previous unfair labor practice pro-
ceeding wherein the Board found that Respondent violated
Section 8(a)( I). (3), and (5) of the Act and ordered Respon-
dent to recognize and. upon request. to bargain collectively
with the Union. Among the various discriminatees the
Board ordered to be made whole were James D'Aunoy.
who wlas discharged and ordered reinstated, and Robert
Swaggert., who was awarded backpay as compensation for
a temporary layoff.
The facts relating to the instant matter before me are, for
the most part. undisputed. The parties received the Board's
I)ecision in Mid-America Machinery (Comnpan. 238 NLRB
' Respondent's motion to correct the transcript is granted.
246 NI.RB No. 153
1176
MID-AMERICA MACHINERY COMPANY
537, in May. On Sunday, June 4, Respondent's manager,
Larry Jabusch, who testified in the earlier case, received an
unexpected visit at his home from Dean Noland. a member
of the Union's executive board, and Richard DeVries, a
member of the Union's organizing committee. The two
union officials referred to the Board's Decision, and re-
quested that Jabusch recognize and bargain with them as
ordered. Jabusch responded by referring them to his attor-
ney, James P. Baker, and asked them to leave. On June I
Jabusch received a telegram from the Union giving notice
that the Union would be "conducting informational picket-
ing . . . because of continued unfair labor practices." The
strike began on Monday, June 12. At that time DeVries
conferred with Jabusch at the Company's office, and stated
that a strike could be averted by recognizing the Union.
DeVries said that the pickets would be there for a long
period, and Jabusch reminded him of the restrictions placed
upon the Union during an earlier strike in 1977.
Picketing began on June 12. Among the participants
were Robert Swaggerty, the only union activist remaining
in the plant and the only employee union leader still ac-
tively employed, and James D'Aunoy, as yet not reinstated.
Among the picket signs utilized were signs stating "On
strike-Negotiate Now Mid-America." A few days there-
after Jabusch received a letter dated June 19 from Michael
J. Hargis, the Union's general secretary and treasurer, stat-
ing, in relevant part, that the Union had been striking since
June 12 over the unfair labor practices of the Company
"settled" by the Board's Decision, and that the strike was
fully sanctioned by the International Union. Also on June
19, Respondent's attorney, James P. Baker, met with Rob-
ert Swaggerty and Patrick Murphian of the Union at a res-
taurant in Springfield.' On September 8 Robert Swaggerty
left a signed and dated note, in evidence, with Jabusch's
secretary, Nancy Cole, at Respondent's office. In the note
Swaggerty offered to return to work "without conditions or
stipulations." Jabusch read the document upon his return
to his office that evening. Since Jabusch did not respond
over the weekend to his offer, Swaggerty returned to the
Company's office on the afternoon of Monday, September
II, and talked with Jabusch. Swaggerty asked, "Larry, I
wanted to see if I could have my job back." Jabusch re-
minded Swaggerty that at the outset of the strike DeVries
had come in and said it was going to go on indefinitely, and
that he had no need for labor. Jabusch said he had hired
another laborer and did not have another opening. Swag-
gerty answered, "Fine. Thanks, I hope we can always re-
main friends." Then he left.4
3 The date of this meeting is the only significant fact in dispute in this case.
Robert Swaggerty's testimony, unsupported by records, placed the date of
the meeting at approximately I or 2 weeks before the commencement of the
strike. Attorney James P. Baker testified that the meeting took place on June
19, and offered to prove the accuracy of the date by the post-hearing produc-
tion of his office time records, which were not physically present at the
heanng. I am persuaded that June 19 was the actual date, but in so finding
I draw no adverse conclusions concerning the otherwise credible testimony
of Robert Swaggerty.
4 Jabusch and Foreman Fred Schroeder testified that Swaggert) appeared
for this interriew in an intoxicated condition, staggering and smelling of
alcohol. Schroeder describes Swaggerty as "stoned," and slurring his speech.
Swaggerty candidly testified that he could not remember but did not dens
Other than Jabusch's brief observation during the course
of their conversation on September II. Respondent made
no response whatsoever to Swaggerty's offer which I find to
have been clearly an unconditional offer to return to work.
I also find on the basis of the clear and undisputed evidence
summarized above that the strike which began on June 12
was, from its beginning. a strike caused by Respondent's
failure and refusal to remedy the unfair labor practices
found to have occurred by the Board in Mid-America Mlu-
chinery Compaun, supra. As such, it is an unfair labor prac-
tice strike, and under the law Robert Swaggerty is entitled
to the rights accorded unfair labor practice strikers by the
law. including immediate and full reinstatement, unless Re-
spondent's failure and refusal to comply is excused by a
meritorious affirmative defense.
Jabusch testified that in addition to the remark he made
to Swaggerty during their September II conversation
"there were a number of other contributing factors" con-
cerning his reason for not reinstating Swaggerty. There
were "his attitude, his conduct on the picket line, and the
comments that he made in the shop about me and about
the Company before the strike went on, as well as the fact
that we didn't have an opening at the time." No evidence
was presented concerning Swaggerty's "attitude." 5 Also,
there is no evidence concerning comments made about Ja-
busch before the strike, and Jabusch admitted that any in-
formation he possessed in this area was based on hearsay.
Thus. in the final analysis. Respondent's defense condenses
to the contention that Swaggerty engaged in strike miscon-
duct. There are four incidents upon which this contention is
based: () Swaggerty was intoxicated on September II at
the time he orally requested reinstatement, (2) Swaggert)
was among a group of pickets who "blocked" trucks at the
entrances to company premises, (3) Swaggerty was among
those who engaged in target practice with a slingshot adja-
cent to one of the Company's facilities which was being
picketed. and (4) Swaggerty threatened a company em-
ployee on the picket line and the boss of the construction
crew at the jobsite of Respondent's new plant, which was
also being picketed.
There is clearly no merit to Respondent's contention in-
sofar as it reT'rs to Swaggerty's intoxicated condition on
September I 1. Although one might observe that attempting
to discuss a matter of serious concern with his employer in
such a state did not demonstrate sound judgment. there is
no evidence that Swaggerty either engaged in misconduct
or did anything to revoke or otherwise cloud his original
written and clear unconditional offer. To the contrary, Ja-
busch's account of the interview demonstrates that Swag-
gerty was courteous and simply renewed his original offer.
During the period of the strike Respondent had three
locations in Virden. The first, described as the "old site."
consisted of Respondent's trailer office on the south edge of
the town. Directly across the street from this facility was
Respondent's shop, which occupied the rear portion of the
making a visit to the company offices. He conceded that earlier that da he
had had a few beers with a friend In Springfield. after conducting his busl-
ness at the state unemploment agency where he signed up foIr unemploy-
ment compensation
I However. a significant reference to Swaggerts's attitude hby Jabusch is set
forth and discussed in Mid-.4merica. supra at 542.
1177
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fiesta Restaurant. One-half mile to the south on Route 4
was the construction jobsite for the Company's new facility.
All three locations were picketed during the strike. On the
morning of June 13 Respondent planned to move some
equipment from the Fiesta shop to its new facility. Respon-
dent had employed Cemco to do the job. There is no evi-
dence that the Cemco truck, driven by Cemco employee
Ivan Stanley, had any difficulty entering upon its arrival at
the Fiesta shop. When the machinery was loaded on the
truck Respondent's foreman, Fred Schroeder, assigned an
unidentified Mid-America employee to ride with Stanley in
the cab. Respondent's dump truck, driven by Mid-America
employees, was to follow. As the Cemco Truck started to
leave and approached the exit of the Fiesta premises, a
group of pickets headed by DeVries engaged Stanley in a
conversation at the entrance. When Schroeder noticed that
the truck was not proceeding farther he asked Stanley what
had happened, and Stanley replied that the pickets had told
him he could not take the truck outside, since there was a
strike and the Teamsters were not supposed to cross the
picket lines. After Schroeder assured Stanley that he had
cleared the matter with the Teamsters in Springfield, Stan-
ley still was not satisfied and attempted to reach his em-
ployer on the truck radio. These efforts were unsuccessful,
but after further assurances by Schroeder that the matter
had been cleared with the Teamsters, Stanley and the dump
truck left the premises without incident. At the entrance to
the new site the truck was greeted by another group of
about seven pickets including DeVries and Robert Swag-
gerty. There is no direct evidence concerning what the pick-
ets said to driver Stanley. However, it is clear that Stanley
was reluctant to cross the picket line and reported to
Schroeder, when he arrived on the scene, that they would
not let him in. Schroeder answered, "Ivan, I don't see how
they can stop you. All you've got to do is pull in. You've got
the right to do so. It is our property, and you've got permis-
sion to pull in there and unload the equipment." Stanley
said that he did not want to lose his job. After Schroeder
assured Stanley that he would not lose his job because his
employer had already cleared the matter with the Team-
sters, Stanley still was not satisfied because he could not
reach his employer on the radio. Only after Schroeder went
back to town and obtained reconfirmation of the clearance
from Stanley's boss did Stanley agree to enter the new site.
Schroeder returned to the office. Shortly after Schroeder left
Stanley changed his mind, and drove the truck back to the
Fiesta shop without unloading.
There is no evidence that the pickets interfered with his
reentrance to the Fiesta premises. Later that morning, with
a police escort, the truck returned to the new site, entered
past a group of pickets without incident, and unloaded. Re-
spondent contends that this evidence shows that pickets,
including Robert Swaggerty, "blocked" the truck and pre-
vented it from entering, and thus Swaggerty engaged in
strike misconduct. I find that this contention is not sup-
ported by the evidence. Swaggerty denied blocking en-
trances to Respondent's premises. In my view, the evidence
supports his denial. The record establishes that driver Stan-
ley's statement to Schroeder that the pickets "would not let
him in" stems directly from Stanley's concern that any
crossing of the picket lines might not have been cleared
either with the Teamsters or his employer, and conse-
quently might cost him his job. This conclusion is rein-
forced by that portion of Schroeder's remarks to Stanley to
the effect that all he had to do was pull in, and the fact that
each time Stanley crossed the picket lines without difficulty.
There is no evidence of any physical blocking of the truck
by either Swaggerty or any of the pickets with him. I find
that Respondent has failed to prove any strike misconduct
by Robert Swaggerty with respect to this incident. No evi-
dence was presented concerning any other such incidents.
It is undisputed that on another occasion, concerning
which no date was established, Swaggerty and other un-
identified pickets entertained themselves during picketing at
Respondent's Fiesta facility by engaging in target practice
with a slingshot while standing about 50 feet south of the
Fiesta shop. Swaggerty and the other pickets were firing
rocks at some cans in an adjacent field. At no time did
Swaggerty or any of the other pickets fire any missiles or
point the slingshot in the direction of the plant. Based on
this undisputed evidence I find that Robert Swaggerty did
not engage in strike misconduct with respect to this inci-
dent.
Donald R. Caudle, employed by Respondent as a
"learner mechanic" for 3 years, testified that, while driving
a forklift truck across the street to the Fiesta shop one day,
Swaggerty, who was picketing, yelled that he would see
Caudle in jail next. Further testimony by Caudle revealed
that Swaggerty's remark obviously stemmed from the fact
that Caudle had lost his driver's license for a year and spent
a night in jail after being convicted for driving while under
the influence of alcohol. Caudle and Swaggerty are friends.
I find, under the circumstances presented, that Swaggerty's
remark constitutes only innocuous banter of the type in
which employees normally engage, and not strike miscon-
duct. Moreover, the record discloses that this incident could
not have been part of Respondent's considerations in refus-
ing to reinstate Swaggerty, since Caudle first reported the
incident to Respondent only 2 or 3 months before the hear-
ing in this case.
Eugene Miller worked for Mayco Construction Company
on thejobsite of Mid-America's new facility. One day while
the picketing was in progress he had conversation with
Robert Swaggerty, as Miller and some members of the con-
struction crew were coming onto the jobsite. Although
Miller could not pinpoint the date, he stated that the inci-
dent occurred early in the strike. As Swaggerty cleaned his
fingernails with his knife, he told Miller that they would
appreciate it if the men did not go into work, and honored
the picket lines. Miller answered that they were going to go
in and go to work regardless, whereupon Swaggerty an-
swered that they were cleared to cross the line and go to
work. Swaggerty added that they would probably be better
off if they did not go in. Miller and his men then entered the
site and worked without incident. There is no evidence that
the pickets ever made any effort to stop the Mayco employ-
ees from working. Miller testified that he first reported this
incident to Company Attorney James Baker at the Macou-
pin County Courthouse in September, immediately before
the last state court proceeding concerning the dispute be-
tween Respondent and the Union. Since there is no evi-
dence that Swaggerty or any group of pickets including
1178
MID-AMERICA MACHINERY COMPANY
Swaggerty ever physically attempted to deter Miller's crew
from entering the jobsite and since the conversation in
question is at most ambiguous, particularly in view of
Swaggerty's statement that the construction crew was
cleared to cross the line, I find that Swaggerty's involve-
ment in the incident does not constitute strike misconduct.
Since I have found that none of the incidents offered by
Respondent in support of its affirmative defense with re-
spect to Swaggerty constitutes strike misconduct which
would excuse Respondent's failure and refusal to reinstate
him as an unfair labor practice striker following his uncon-
ditional offer to return to work, I find, in accordance with
established Board precedent, that Respondent violated Sec-
tion 8(a)(1) and (3) of the Act by failing and refusing to
reinstate Robert Swaggerty pursuant to his unconditional
offer.6
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The strike of Respondent's employees which began on
June 12 was caused by the unfair labor practices of Respon-
dent and is and has been at all times since that date an
unfair labor practice strike.
4. By failing and refusing to reinstate unfair labor prac-
tice striker Robert Swaggerty pursuant to his September 8
unconditional offer to return to work, Respondent violated
Section 8(a)(1) and (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order that Re-
spondent cease and desist therefrom and take certain affir-
mative action designed to effectuate the policies of the Act.
Respondent having discriminatorily failed and refused to
reinstate unfair labor practice striker Robert Swaggerty. I
find it necessary to order that Respondent offer him imme-
diate and full reinstatement to his former or substantially
equivalent position, without prejudice to his seniority or
other rights and privileges, discharging, if necessary, any
replacements in order to provide work for him. I shall also
order that Respondent pay him backpay computed on a
quarterly basis, plus interest as prescribed in F. W. Wool-
worth Company, 90 NLRB 289 (1950), and Florida Steel
I In the alternative I would find that, even if any of the incidents offered
by Respondent in support of its contention were found to constitute strike
misconduct, none of said incidents constituted misconduct of a degree which
would warrant barring Swaggerty from reinstatement as an unfair labor
practice stnker. Furthermore, I would find that Manager Larry Jabusch's
reference in his testimony to Swaggerty's "attitude," as a factor in his deci-
sion not to reinstate Swaggerty, considered in the context of Jabusch's testi-
mony in Mid-America. supra, and his reminder that the current strike was
supposed to last a long time. proves that Respondent's failure and refusal to
reinstate Swaggerty was motivated in substantial part b a desire to retaliate
against Swaggerty because of his union sympathies anti activities
Corporation. 231 NLRB 651 (l977).W Since I find Respon-
dent's unfair labor practices herein to be of a serious nature.
considered in the background of the Board's previous deci-
sion, I find that a broad cease-and-desist order is warranted.
I shall also order Respondent to post an appropriate notice
with respect to the violations of Section 8(a)(1) and (3) of
the Act found to have occurred.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDERs
The Respondent. Mid-America Machinery Company,
Virden. Illinois, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Discriminating against employees with regard to
their hire or tenure of employment, or terms and conditions
of employment, because of their union activities or con-
certed activities for their mutual aid or protection.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights to self-or-
ganization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing. and to engage in other concerted activities for the
purposes of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities.
except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as
a condition of employment, as authorized in Section 8(a)(3)
of the Act, as amended.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Robert Swaggerty immediate and full reinstate-
ment to his former or substantially equivalent position.
without prejudice to his seniority' or other rights and privi-
leges, dismissing, if necessary, any person hired on or after
June 12, 1978, and make him whole in the manner set forth
in the section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying. all pay-
roll records, social security payment records, timecards.
personnel records, and all other records necessary to ana-
lyze the amount of backpay due under the terms of this
Order.
(c) Post at its facility, or facilities, at Virden, Illinois.
copies of the attached notice marked "Appendix."9 Copies
of said notice, on forms provided by the Regional Director
for Region 14. after being signed by an authorized repre-
sentative of Respondent, shall be posted by Respondent im-
'See, generally. Ists Plumbing & Healing Co., 138 NLRB 716 (1962)
E In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall. as provided in Sec. 102.48
of the Rules and Regulations, be adopted b the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
9 In the event that this Order is enforced bh a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nalonal
Labor Relations Board."
1179
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are customar-
ily posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced, and cov-
ered by any other material.
(d) Notify the Regional Director for Region 14, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
APPENDIX
NotIICEi To EMPLOYEES
POSTED BY ORDER OF TIIE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the opportunity to
present their evidence, it has been decided that we violated
the law, and we have been ordered to post this notice. We
intend to carry out the order of the Board and abide by the
following:
WE WILL NOT discriminate against our employees
with respect to the hire and tenure of their employ-
ment, or any term or condition of their employment,
because they have engaged in union activities or con-
certed activities for their mutual aid or protection.
WE Wll.l NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of the
rights to self-organization, to brm, join. or assist labor
organizations, to bargain collectively through represen-
tatives of their own choosing, and to engage in other
concerted activities for the purposes of collective bar-
gaining or other mutual aid or protection, or to refrain
from any and all such activities. except to the extent
that such right may be affected by an agreement re-
quiring membership in a labor organization as a condi-
tion of employment, as authorized in Section 8(a)(3) of
the Act, as amended.
WE Wiu.1. offer Robert Swaggerty immediate and full
reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other
rights and privileges, dismissing, if necessary. any per-
son hired on or after June 12. 1978. and WIE wii.i make
him whole for any loss of earnings he may have suft:
fered as a result of our discrimination against him.
MID)-AlERI( A MA(IIINERY COMPANY
1180