Palmer Asbestos & Rubber Corp.

National Labor Relations Board - Board Decisions

Aug 26, 1966

160 N.L.R.B. 723 (N.L.R.B. 1966)

PALMER ASBESTOS & RUBBER CORP . 723
WE WILL NOT in any other like or related manner restrain or coerce employ-
ees in the exercise of the rights guaranteed in Section 7 of the Act, except
to the extent that such rights may be affected by a valid agreement requiring
membership in a labor organization.
RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
LOCAL 698, RETAIL CLERKS INTERNATIONAL
ASSOCIATION, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) ( Title)
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 members have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 720
Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio 4415, Telephone 621-4465.
Palmer Asbestos & Rubber Corporation and American Federa-
tion of Grain Millers, AFL-CIO, Local 33. Case 9-CA-3767.
August 9d6, 1966
DECISION AND ORDER
On June 3, 1966, Trial Examiner Max Rosenberg issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent
had engaged in certain unfair labor practices within the meaning of
the National Labor Relations Act, as amended, and recommending
that it cease and desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision. Thereafter,
the Respondent filed exceptions to the Trial Examiner's Decision.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Brown 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, Respondentis exceptions and its brief to the
Trial Examiner incorporated therein, and the entire record in this
case, and hereby adopts the findings,' conclusions, and recommenda-
tions of the Trial Examiner.
'We find no merit in Respondent's contention that its letter to employees, setting forth
alleged company policy as to status of strikers and replacements, "refutes allegations of
statements made by Supervisor (Ferring)," as the letter was distributed before the state-
ments were made, and, in any event, contains no reference thereto
160 NLRB No. 50.
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Secton 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondent, Palmer Asbestos & Rubber Corporation, Louisville,
Kentucky, its officers, agents , successors , and assigns , shall:
1. Cease and desist from :
(a) Upon request, refusing to bargain collectively with American
Federation of Grain Millers, AFL-CIO, Local 33, as the exclusive
representative of all employees in the appropriate unit with respect
to rates of pay, wages,, hours of employment, or other terms and
conditions of employment.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist the above-named
labor organization or any other labor organization , to bargain col-
lectively through representatives of their own choosing, and to engage
in concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all such
activities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment, as authorized in Section 8(a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure Act
of 1959.
2. Take the following affirmative action which is necessary to
effectuate the policies of the Act :
(a) Upon request , bargain collectively with American Federation
of Grain Millers , AFL-CIO, Local 33, as the exclusive representa-
tive of all employees in the appropriate unit with respect to rates of
pay, wages, hours of employment, and other terms and conditions of
employment, and, if any understanding is reached, embody such
understanding in a signed agreement . The bargaining unit is :
All production and maintenance employees at the Employer's
Louisville, Kentucky, plant, including truckdrivers and janitors,
but excluding office clerical employees, guards, professional
employees, and all supervisors as defined in the Act.
(b)- Upon application, offer reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their seniority or
other rights and privileges, to all employees who were on -strike
November 24, 1965, or who joined the strike thereafter, dismissing,
if necessary, any persons. hired after that date, and make each such
employee whole for any loss of pay he may have suffered as a result
of its refusal to reinstate him upon such application. The backpay
PALMER ASBESTOS & RUBBER CORP. 725
will be computed on a quarterly basis in the manner set forth in
F. W. Woolworth Company, 90 NLRB 289, with interest thereon at
6 percent per annum, as set forth in Isis Plumbing & Heatinag Co.,
138 NLRB 716.
(c) Notify the above-described employees if presently serving in
the Armed Forces of the United States of their right to full rein-
statement upon application in accordance with the Selective Service
Act and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(d) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Post at its plant in Louisville, Kentucky, copies of the attached
notice marked "Appendix." 2 Copies of said notice, to be furnished
by the Regional Director for Region 9, shall, after being duly signed
by the Company's representative, be posted by the Company imme-
diately upon receipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including places where
notices to employees are customarily posted. Reasonable steps shall be
taken by the Company to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 9, in writing, within
10 days from the date of this Order, what steps have been taken to
comply herewith.
2In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "a Decision and Order" the words "a Decree of
the United States Court of Appeals Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT refuse, upon request, to bargain collectively with
American Federation of Grain Millers, AFL-CIO, Local 33, as
the exclusive representative of all employees in the appropriate
unit with respect to rates of pay, wages, hours of employment,
or other terms and conditions of employment.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their right to
self-organization, to form labor organizations, to join or assist
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the above-named labor organization or any other labor organi-
zation, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities, except to the extent
that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment, as
authorized in Section 8(a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
WE WILL bargain collectively, upon request, with the above-
named labor organization as the exclusive representative of all
employees in the bargaining unit described below with respect
to rates of pay, wages, hours of employment, and other terms
and conditions of employment, and, if an understanding is
reached, embody such understanding in a signed agreement. The
bargaining unit is :
All production and maintenance employees at our plant in
Louisville, Kentucky, including truckdrivers and janitors,
but excluding office clerical employees, guards, professional
employees, and all supervisors as defined in the Act.
WE WILL, upon application, offer to all employees who were on
strike on November 24, 1965, or joined the strike thereafter,
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges, dismissing, if necessary, all employees since
hired, and make them whole for any loss of pay they may have
suffered as a result of our refusal to reinstate them upon such
application, with interest thereon at 6 percent per annum.
All our employees are free to become or refrain from becoming
members of the above-named Union, or any other labor organization.
PALMER ASBESTOS & RUBBER CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
NOTE.-We Will notify the above-described employees if presently
serving in the Armed Forces of the United States of their right to full
reinstatement upon application in accordance with the Selective Serv-
ice Act and the Universal Military Training 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.
PALMER ASBESTOS & RUBBER CORP. 727
If employees have -any question concerning this notice of compli-
ance with its provisions, they may communicate directly with the
Board's' Regional Office, Room-2023, Federal Office Building, 550
Main Street, Cincinnati, Ohio 45202, Telephone 684-3627.
TRIAL" EXAMINER'S DECISION
STATEMENT, OF THE CASE
This proceeding , with all parties represented , was heard before Trial Examiner
Max Rosenberg in Louisville , Kentucky, on March 22, 1966 , on complaint of the
General Counsel of the National Labor Relations Board and answer of Palmer
Asbestos & Rubber Corporation , herein called the Respondent .' The question pre-
sented is whether the Respondent violated Section 8(a) (5) of the National Labor
Relations Act, as amended , by refusing to bargain with American Federation of
Gram Millers, AFL-CIO, Local 33, herein called the Union , as the duly desig-
nated majority bargaining representative of its employees . At the conclusion of the
hearing, the General Counsel orally argued his cause . Briefs have been received
from the General Counsel and the Respondent , which have been duly considered.
Upon the entire record and my observation of the witnesses , including their
demeanor while testifying on the stand , I hereby make the following:
FINDINGS OF FACT
1. THE RESPONDENT'S BUSINESS
Respondent , an Illinois corporation , is engaged in the manufacture of roofing
and adhesives at its plant in Louisville , Kentucky . During the annual period mate-
rial to this proceeding , Respondent received products at its Louisville , Kentucky,
plant valued in excess of $50,000, which products were purchased and caused to
be shipped from points directly outside the State of Kentucky . The complaint
alleges, the answer admits, and I find that Respondent is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
II..THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The contentions
The General Counsel asserts that Respondent unlawfully refused to bargain with
the Union on and after November 24, 1965 , when it insisted that the Union
reestablished its majority status in a Board election as a predicate for continued
recognition, and thereby violated Section 8(a) (5) of the Act. He further asserts
that the Union 's strike , which commenced as an economic work stoppage on
November 2, 1965, was converted into an unfair labor practice strike by Respondent's
failure to bargain on November 24, and ' that the 'strikers became unfair labor practice
strikers on and after the latter date. The Respondent contends that its conduct on and
after the critical date was legally privileged because it entertained a good-faith doubt
as to the Union 's majority . This, then, is the gravamen of the litigation herein.
B. The evidence
The salient facts in this proceeding are not seriously in dispute , and I find them
to be as follows.
Pursuant to a Board -conducted election, the Union was certified on May 8, 1964,
as the majority bargaining representative for a unit of all production and mainte-
nance employees at the Respondent 's plant in Louisville , Kentucky, including truck-
drivers and janitors , but excluding office clerical employees , guards, professional
employees , and all supervisors as defined in the Act 2 On December 11, 1964, the
The complaint , which Issued on January 20 , 1966, is based upon a charge filed on
November 30, 1965, and served on December 1, 1965.
2 It Is undisputed and I find that the certified unit was appropriate for the purposes
of collective bargaining within the meaning of Section 9(a) of the Act during the times
material herein.
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
parties executed a collective-bargaining agreement covering this unit which was to
run from October 29, 1964, to October 28, 1965. By letter dated August 25, 1965,
the Respondent advised the Union that the latter was being put on notice of
Respondent's intention to terminate the agreement on its expiration date. On the
same day, the Union informed Respondent of its desire to modify the existing con-
tract, and simultaneously filed with the Federal Mediation and Conciliation Service
notification of this action. Following the Union's written request for contract
negotiations dated September 29, 1965, the parties met on October 8, 13, and 28,
and again on November 1 and 24. With the expiration of the agreement on Octo-
ber 28, 1965, it was mutually agreed that the compact would be extended to
November 1 to allow for the bargaining session on that date. However, the employ-
ees had voted on October 27 to engage in a strike on November 2 if an agreement
was not then concluded.
An economic impasse was reached on November 1 and the strike commenced the
following day. J. T. Williams, Sr., one of the striking employees, testified without
contradiction that he had a conversation with William Ferring, Respondent' s plant
engineer , sometime between November- 14 and 22, 1965? During this conversation,
Ferring stated that Shirley Palmer-Ball, Respondent's vice president and chief nego=
tiator, was "not going to sign no kind of contract" with the Union, and Ferring
remarked that the strikers were wasting their time by engaging in the work stop-
page. James T. Williams, Jr., another striking employee, also testified without con-
tradiction to a conversation which he had, with Ferring shortly before the last nego-
tiating session on November 24. Ferring inquired as to when James intended to
return to work. When James replied that 'he , would abandon the strike "when this
things over with," Ferring remarked that "they wasn't going to sign a contract and
you might as well come back to work.4
On November 24, a negotiating meeting was scheduled with a representative of
the Conciliation Service in attendance: During the morning session , Charles Min-
gus, the Union's president and negotiator; .stated that he would accept Respondent's
proposed contract which it had previously advanced and would terminate the strike
if 'Respondent' reinstated all strikers with their original seniority. Palmer-Ball did
not immediately respond to this offer, but requested a recess to attend to other busi-
ness. When bargaining resumed that afternoon; Palmer-Ball- announced for the first
time that he doubted the Union's majority and would not negotiate with the Union
until its majority status was again demonstrated in a Board election . However,
Palmer-Ball. afforded no reason for his recalcitrance in dealing with the -Union.
Mingus then exclaimed that "the union very definitely has a majority, in fact we
have more than we had when we came, out [on strike]. We have four new mem-
bers since we came out and I said it's quite evident these men have been on the
picket line, the four new members,-there can't be any question," B after which the
meeting broke up. I find that at no time during this meeting did Palmer-Ball chal-
lenge Mingus' assertions,' nor did he demand that Mirigus produce these cards.
Indeed, Palmer-Ball's sole reply was one of utter unconcern.6
- With' respect to the Union's majority status, the parties stipulated that, as of
November 1, 1965, the day` preceding the strike, 36 employees in the unit were in
3 Respondent concedes, and I find, that Ferring was a supervisor within the meaning of
Section 2(11) of the Act at all times material herein.
* Palmer-Ball admitted that Ferring informed him on one or two occasions following
the strike that the latter had solicited employees to return to work. Palmer-Ball also
admitted that he held weekly meetings with his supervisors during the strike in which he
discussed the work stoppage and the Union's relative strength with them.
s By this, Mingus had reference to employees Mervin Fields, James T. Williams, Jr,
and Melvin Wheeler, who -signed union authorization cards on October 27, 1965, and
Edward L. Robinson, who executed a card on November 2, 1965. All of these employees
joined the strike on the latter date. -
6 Palmer-Ball testified that he was unaware that the Union had acquired four additional
members prior to November 24! Mingus impressed me as a credible witness who testified
in a forthright manner , and I credit his testimony that he informed Palmer-Ball at the
meeting of November 24 of the Union's acquisition of these new members., I find it im-
plausible that Palmer-Ball could have been ignorant of the fact that Fields, Williams,
Wheeler, and Robinson supported the Union in strike and were adherents thereof, in view
of his testimony that his refusal to bargain was based in part upon a numerical calcula-
tion of the employees who remained at work during the work stoppage, and his further
testimony that he consulted on a weekly basis with his supervisors concerning this subject.
PALMER ASBESTOS & RUBBER CORP . 729
Respondent's employ.7 It was further stipulated that 18 of these had executed check-
off cards and paid their monthly dues to the Union through payroll deductions, and
Palmer-Ball was admittedly aware of this. As a matter of simple arithmetic, count-
ing the four new members which the Union obtained shortly before the commence-
ment of the strike together with the known union adherents, the Union's majority
on November 24 comprised 22 out of 36 employees in the unit, and I so find.
Furthermore, with the addition of the disputed Willie James Brown, the Union rep-
resented 23 out of 37 on the critical date, which is certainly a majority of the
employees in the unit .8
Having found that the Union actually represented a majority of Respondent's
employees on November 24, 1965, I next turn to Respondent's asserted "good-
faith" defense. Palmer-Ball testified that he entertained a good-faith doubt of the
Union's majority by this date which developed from certain information which had
come to his attention commencing with the date of the strike. Thus, he testified
that, at the inception of the work stoppage on November 2, 16 of the 36 employees
in the unit reported for work, among whom were 3 known union members, and that
this factor constituted a basis for his doubt. Palmer-Ball then related that his doubt
was further engendered by the fact that five strikers "were rumored to have taken
other jobs" during the strike. When pressed on this subject, he admitted that "it
wasn't necessarily that they were all employed elsewhere." He asserted that this
intelligence was received from the strikers, but then could manage to recall only one
instance in which a striker, namely, Albert Owsley, spoke to him about the matter.
According to Palmer-Ball, he learned from Owsley that the latter had obtained
employment with a painting contractor after the strike and this prompted him to
conclude that Owsley had defected from the ranks of the Union. However, Palmer-
Ball made the remarkable admission that he observed Owsley seated in an auto-
mobile near the picket line during the period from November 2 to 24. Palmer-Ball
further testified that another basis for his good-faith doubt resided in the fact that
three strikers, P. T. Williams, Sr., James Riley, and Jessie Carter had engaged in
picket line misconduct and therefore these individuals forfeited their status as
statutory "employees." He then recanted and was unwilling to characterize them as
picket line miscreants because "There may be some conflict as to their activity" on
the line, and Respondent's labor relations consultant repeatedly gave assurance on
the record that Respondent was not affirmatively claiming that these strikers had
disqualified themselves for reinstatement by any misconduct on their part.9 Finally,
Palmer-Ball testimonially acknowledged that he was totally unaware whether his
7 The stipulation excluded Willie James Brown because the parties were in disagreement
as to whether he was an employee at the time of Respondent's refusal to bargain Respond-
ent contends that Brown should not be counted to determine the Union's maiority because
he simply had left its employ previously. The record shows that Brown suffered an injury
to his back at the plant in October 1964, and was under doctor's care until he was finally
released in October 1965 Following his release, he joined the strikers and picketed on and
after November 2, 1965. Brown testified without contradiction that, in 1965, he visited
the plant where he received two checks from Respondent's Office Manager Hieb in payment
for three preceding holidays. During this visit, Hieb inquired when Brown would be avail-
able for work and Brown replied that he would return when his doctor allowed him to do
so Brown received workmen's compensation until as late as October 1965, and his testi-
mony is uncontroverted that he was never informed, either in writing or otherwise, that
the Respondent no longer considered him as an employee Moreover, at a meeting between
Mingus and Palmer-Ball on November 1, 1965, the latter presented Mingus with ,a list of
employees which included the name of Brown In view of the foregoing and the entire
record I find that Brown had not abandoned his employment with Respondent prior to
November 24, 1965, and that Respondent had not previously taken any action to terthinate
that employment. Accordingly, I find that Brown was an employee on the critical date who
should be included in the numerical computation of the Union's majority status. See
E. H. Sargent and Co., 99 NLRB 1318, 1320
8 Even with the elimination of the four new members, I nevertheless find that the Union
represented a majority because, as I have heretofore found, Willie James Brown was en-
titled to be counted With his inclusion in the unit, the Union represented 19 out of 37,
a figure which also constituted a majority.
6I would note that there is nothing in this record to establish that Respondent at any
time discharged these men for this alleged activity. In fact, the record affirmatively estab-
lishes that none of the strikers have even been replaced.
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees did or did not desire the Union as their bargaining agent in November
1965, and that he made no effort to investigate the matter prior to his refusal to
deal with the Union on November 24, 1965.
C. Conclusions
With the concurrence of the United States Supreme Court, the Board has adopted
the rule that the exclusive representative status of a labor organization, once estab-
lished by a Board certification, is conclusively presumed during the certification year
absent unusual circumstances, and is further presumed thereafter unless the
employer can demonstrate that the union's majority has been dissipated by the
defection of its adherents.10 In this connection, the Board noted in United States
Gypsum Co." that "Once employees have designated their bargaining representa-
tive in accordance with the Act, recognition of that representative is not a
matter which an employer may or may not grant when and as he chooses. A duty to
bargain with such a duly designated representative has been imposed upon him by
the Act." The standard of proof necessary to sustain an employer's good-faith doubt
of a Union's majority and thereby relieve him of his duty to bargain was recently
expressed by the Board in Laystrom Manufacturing Co.12 The Board there stated:
A showing of such doubt, . requires more than an employer's mere
assertion of it and more than proof of the employer's subjective frame of mind.
The applicable test, as defined in the Celanese case [95 NLRB 664, 672], is
whether or not the objective facts furnish a "reasonable basis" for the asserted
doubt, or, put another way, whether or not there are "some reasonable grounds
for believing the Union has lost its majority status since its certification.
Considering these legal precepts, I am not convinced that the Respondent's doubt
as to the Union's majority on November 24, 1965, meets the test of bona fides.
Thus, the Respondent claims that the genuineness of its doubt is established by its
ignorance that the Union had acquired four new members prior to its refusal to
bargain. I have heretofore credited the testimony of Mingus that Palmer-Ball was
in fact informed on November 24 that the Union had obtained the new acquisi-
tions. In any event, I have found that the Union's majority remained unimpaired,
even disregarding these -acquisitions, inasmuch as Willie James Brown was an
employee on the critical date who should have been included in the numerical
computations. Next, Respondent asserts that its doubt was engendered by "rumors"
which had reached its ears that five strikers had abandoned their employment and
sought work elsewhere. However, Palmer-Ball then admitted that be had spoken
to only one striker who informed Palmer-Ball that he had obtained other employ-
ment after the strike, and, even as to this striker, Palmer-Ball concededly observed
him sitting in an automobile near the picket line during the period from Novem-
ber 2, the date of the strike, to November 24, the date of Respondent's refusal to
bargain. Again, Respondent urges that the bona fides of its doubt was buttressed
by the fact that three known union adherents reported for work on the date of the
work stoppage. However, the Board has long held that the failure of employees to
support a strike does not, standing alone, necessarily indicate that they have repu-
diated the striking union as their bargaining representative.13 Indeed, Palmer-Ball
admitted that he had no independent knowledge during November 1965 of whether
any identifiable employee continued his adherence to the Union or had rejected
collective representation. Moreover, Respondent contends that its good-faith doubt
is demonstrated by its belief that three strikers may have participated in picket line
misconduct and thereby forfeited their statutory rights as "employees." The short
answer to this contention is that the Respondent repeatedly disclaimed on this
10 See, e.g., Ray Brooks V. N.L R.B., 348 U.S. 96; Frito-Lay, Inc., 151 NLRB 28.
11 90 NLRB 964, 966.
12151 NLRB 1482, 1484. While the Board's decision was reversed by the United States
Court of Appeals for the Seventh Circuit, 359 F 2d 799, the Board has not indicated an
abandonment of this standard
12 See Arthur A. Borchert d/b/a West Fork Cut Glass Company, 90 NLRB 944, 956, enfd.
in pertinent part 188 F.2d 474 (C.A 4) . "The Union was certified to represent all of the
employees in the appropriate unit and not just its active members. It did not cease to
represent the employees merely because a majority of them failed to join in the strike.
At the most, the abstention of a majority from the strike was a vote of no confidence in
the strike action, and not necessarily a repudiation of the Union in its representative
capacity."
PALMER ASBESTOS & RUBBER CORP. 731
record that it was taking the position that these individuals had in fact engaged in
conduct which disqualified them for continued employment with Respondent.-
Finally, I find and conclude that Respondent 's asserted good-faith doubt is further
undermined by its expressed disregard for the principles of collective bargaining
which was demonstrated by Plant Engineer Ferring's statements to the Williamses
prior to November 24, 1965, "the Respondent wasn't going to sign a contract" with
the Union.
In sum, I conclude that the Respondent has failed to come forward with sufficient
objective facts or considerations which furnished a reasonable basis for its asserted
good-faith belief that the Union had lost its majority representative status on
November 24, 1965, and which relieved the Respondent from its statutory duty
to bargain with that labor organization on and after that date . Accordingly, I find
and conclude that, by refusing to recognize and bargain with the Union on and
after November 24, 1965, the Respondent thereby violated Section 8(a)(5) of
the Act.
As indicated hereinabove , the Union 's strike which began on November 2, 1965,
was precipitated by an economic impasse in bargaining . However, the Respondent,
by its unlawful course of conduct of refusing to recognize and bargain with the
Union on November 24, 1965, and thereafter, aggravated its differences with the
Union and created new and serious impediments to the settlement of the strike.
As a consequence , I conclude that the strike , while economic in origin , was con-
verted by Respondent into an unfair labor practice work stoppage on November 24,
1965, and was thereafter prolonged by Respondent 's continued misconduct . Accord-
ingly, I find and conclude that the employees who participated in the strike on that
date, or joined in the strike thereafter , became unfair labor practice strikers and
are entitled , upon application , to reinstatement to their former substantially equiva-
lent positions, displacing, if necessary , any employees hired on or after that date.14
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of Respondent described in section I, above, have a
close , intimate , and substantial relation to trade , traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent engaged in unfair labor practices in violation
of Section 8(a) (5) of the Act, I will recommend that it cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
Having found that the Respondent refused to bargain collectively with the Union
as the exclusive representative of its employees in the appropriate unit, I will recom-
mend that the Respondent, upon request, bargain collectively with the Union as
such representative and, if an understanding is reached, embody such understanding
in a signed agreement.
Having found that the strike, which commenced as an economic work stoppage
on November 2, 1965, was converted into an unfair labor practice strike on
November 24, 1965, by Respondent's unlawful refusal to bargain with the Union
and was thereafter prolonged by Respondent's unfair labor practices, and having
found that the employees who went on strike on and after November 24, 1965,
became unfair labor practice strikers as a consequence thereof, I will recommend
that Respondent, upon application, offer them reinstatement to their former or
substantially equivalent positions, without prejudice to their seniority or other rights
and privileges, dismissing, if necessary, any person hired after the latter date, and
make these employees whole for any loss of pay they may have suffered as a
result of Respondent's refusal to reinstate them upon such application.
Upon the basis of the foregoing findings of fact and conclusions and the entire
record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
14 See Trinity Valley Iron and Steel Company, 127 NLRB 417, enfd. 290 F 2d 47 (C.A. 5).
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. American Federation of Grain Millers , AFL-CIO, Local 33, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. American Federation of Grain Millers , AFL-CIO, Local 33, has been, and
now is, the representative of a majority of Respondent's employees in the appro-
priate unit for purposes of collective bargaining within the meaning of Section
9(a) of the Act.
4. By refusing , on and after November 24, 1965, to bargain collectively with
American Federation of Grain Millers , AFL-CIO, Local 33, as the exclusive repre-
sentative of all its employees in the appropriate unit , Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8(a)(S) of
the Act.
5. By engaging in the aforementioned unfair labor practices , the Respondent
converted the Union 's economic strike into an unfair labor practice strike on Novem-
ber 24, 1965, in consequence of which the employees who went on strike on and
after that date became entitled to reinstatement , upon application , to their former
or substantially equivalent positions in preference to all employees hired since that
date.
6. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
International Longshoremen 's Association, Local 1224, AFL-
CIO; International Longshoremen 's Association , Local 1225,
AFL-CIO ; International Longshoremen 's Association, Local
1241 , AFL-CIO; International Longshoremen 's Association,
Local 1245 , AFL-CIO and Jess Edwards, Inc. Case 23-CC-188.
August 26,1966
DECISION AND ORDER
On May 3, 1966, Trial Examiner Arthur E. Reyman issued his
Decision in the above-entitled proceeding, finding that Respondents
had not engaged in the unfair labor practices alleged in the com-
plaint, and recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel filed exceptions to the Trial Exam-
iner'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 [Members Fanning, Brown, 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 and brief, and the entire record
in this case, and finds merit in the exceptions. Accordingly, the Board
adopts the findings, conclusions, and recommendations of the Trial
Examiner only to the extent consistent herewith.
160 NLRB No. 65.