Raleigh Water Heater Mfg. Co., Inc.

National Labor Relations Board - Board Decisions

Mar 2, 1962

136 N.L.R.B. 76 (N.L.R.B. 1962)

76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees, and by ordering employees to cease all union activities at any time or place
within its premises the Respondent has engaged in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
4. By discriminating with respect to the hire and tenure of employment of em-
ployees Jack Adams, Katherine Jackson, Nena Rhodes, Dorothy Manoy , and Juanita
Lambright, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Raleigh Water Heater Mfg. Co., Inc. and United Steelworkers
of America , AFL-CIO. Cases Nos. 12-CA-1526 and 12-CA-
1695. March 2, 1962
DECISION AND ORDER
On August 14, 1961, Trial Examiner Albert P. Wheatley issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in unfair labor practices in violations
of Section 8 (a) (1), (3), and (5) of the Act and recommending that
it cease and desist therefrom and take certain affirmative action as set
forth in the copy of the Intermediate Report attached hereto. There-
after, the Respondent and the General Counsel filed exceptions to the
Intermediate Report and supporting briefs.'
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in this
case, and adopts the findings, conclusions, and recommendations of
the Trial Examiner only to the extent consistent herewith.
1. The Trial Examiner found that the Respondent refused to bar-
gain in good faith in violation of Section 8 (a) (5) and (1) of the Act,
basing his conclusion on his findings of: (a) repudiation of prior
commitments and attempts to begin negotiations de novo; (b) un-
willingness to enter into any collective-bargaining agreement until
the unfair labor practice charges filed by the Union were disposed of
by this Board; (c) unilateral grant of wage increases; and (d) the
entire course of conduct at the negotiating meetings. We do not agree.
(a) The Union was certified on April 17, 1960, and negotiations
began early in May and continued until July 29. During this period
1 Respondent' s request for oral argument is denied as, in our opinion , the entire record
in this case adequately presents the issues and positions of the parties
136 NLRB No. 6.
RALEIGH WATER HEATER MFG. CO., INC. 77
many issues were resolved between the parties but certain demands
were resisted by the Respondent. In the course of these negotiations
the Respondent's attorney said, on June 14, that nothing had been
agreed on and, on June 23, that "as long as there is anything in the
contract proper that has been presented, not agreed to, so long as
there is anything, there is no agreement." The Trial Examiner con-
cluded that by these statements the Respondent had repudiated its
prior commitments. In our opinion, this conclusion is incorrect.
Rather, we find that these comments were merely an expression of the
legal conclusion that there was no binding contract between the parties
until there was agreement on all its parts. It is clear from the evi-
dence that the Respondent did not intend them as a repudiation of
matters previously agreed upon but merely as an indication that the
issues remaining in dispute must be resolved before it could be said
that a contract had been reached. Thus, the Respondent, when
pressed by the Union for a statement of disputed issues, enumerated
only those that had not been resolved; and negotiations thereafter
were concerned only with the unresolved questions remaining in dis-
pute. At no time did the Respondent attempt to reopen or renegoti-
ate the provisions previously agreed upon.
In view of the foregoing and of the record as a whole, we find,
contrary to the Trial Examiner, that the Respondent neither repudi-
ated prior commitments nor sought to renegotiate them.
(b) The Trial Examiner's finding that the Respondent refused
to enter into a contract until the charges were disposed of was based
on testimony that at the last bargaining session, on July 29, the
Respondent said that until the unfair labor practice charges pending
before the Board were disposed of, Respondent would not enter into
"any collective bargaining contract with the Union." However we
do not construe this statement as a refusal to sign any contract or as
conditioning the signing of a contract on withdrawal of charges, when
viewed in the context in which it was made.
As set forth below, the employees were discharged on June 17, and
on June 23 the Union made its first demand for their reinstatement.
It repeated this demand as one of its bargaining terms at every session
thereafter, admittedly refusing to retreat from its position at all
times,2 and the Respondent was equally adamant in its refusal to rein-
state them.
2 The testimony of the union attorney with respect to the July 29 sessions makes it
clear that the Union never rescinded the demand:
Q. (By Mr . PAUL.) Mr. Rutledge , isn't it correct that at the meeting you just
described that the Union was insisting that the persons who were on the picket line
and who had been laid off be reemployed?
A. We did not consider that they had been laid off. We considered that they had
been locked out and it was our position that they should be reinstated.
Q The Union did not in any way seek a retreat from that position at that meeting?
A No, we did not.
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It was thus clear to the Respondent on July 29 that there could be
no final resolution of all the remaining issues, which included the
rights of the dischargees, until after the Board had disposed of the
charge and thus determined those rights. We are convinced that the
above statement had reference to this situation and the impossibility of
disposing of this problem by agreement.
Accordingly, we find, based on the foregoing and the entire record,
that the Respondent was merely maintaining in good faith its legal
position that it was not obligated to reinstate the discharged workers.
We therefore find that the Respondent's position that it would not
accede to the Union's demands and enter into a contract with the Union
requiring that the Respondent fire replacements and reinstate the
discharged workers does not constitute evidence that it bargained in
bad faith?
(c) We also disagree with the Trial Examiner's conclusion that the
Respondent's unilateral granting of wage increases to certain individ-
uals is evidence of bad-faith bargaining. As more fully set forth in
the Intermediate Report, by July 12 the Respondent had rehired seven
of its former employees. Six of these seven were hired at a rate of
$1.25 per hour. This was higher than the rate these employees had
received before they were laid off. However it was no more than the
$1.25 per hour minimum wage the Respondent had offered in the course
of collective bargaining." The Union had been willing to accept this
amount if a 1-year contract were signed, but insisted on a provision
for a subsequent increase if the contract was to be for a longer period.
Under the circumstances of this case, and especially in view of the
absence of other evidence that the Respondent acted in bad faith, we
find no basis for a conclusion that the Respondent violated the Act.'
Such a "unilateral grant of an increase in pay made by an employer
after the same proposal has been made by the employer in the course
of collective bargaining . . . left unaccepted or even rejected in those
negotiations . . . might well carry no disparagement of the collec-
tive-bargaining proceedings. Instead of being regarded as an unfair
labor practice, it might be welcomed by the bargaining representa-
tive, without prejudice to the rest of the negotiations." 6
(d) Finally, having rejected the specific items which the Trial Ex-
aminer found to indicate the Respondent's bad-faith bargaining, we
find, contrary to the Trial Examiner, that there is no evidence in
this record which convinces us that the totality of the Respondent's
See Blackstone Mills, Inc., 109 NLRB 772; Burns Brick Company , 80 NLRB 389, 396.
The seventh employee , Cortez, was hired at 25 cents per hour more than the Respond-
ent had offered the Union . The Respondent justified the higher rate for Cortez on the
ground that he was a skilled painter. We cannot find that this one incident demonstrates
bad faith on the part of the Respondent.
6 See N L.R.B. v. Bradley Washfountain Co., 192 F. 2d 144, 151 (C.A 7)
9 N.L.R .B. v. Crompton-Highland Mills, Inc, 337 U.S 217, at 224-225. Cf. Kohler Co.,
128 NLRB 1062 , at 1079.
RALEIGH WATER HEATER MFG. CO., INC. 79
conduct throughout the negotiations reveals that it engaged in mere
surface bargaining.
As set forth above, the negotiations between these parties continued
from early May to July 29, 1960. During this period there were
approximately 15 meetings in which agreement was reached on many
points as a result of concessions by both parties. We note, in addition,
that the Respondent engaged in no independent violations of Section
8 (a) (1) of the Act. At all times it communicated with the Union
concerning the activities of the employees (herein found to have been
unprotected) and informed the Union of its intention to discipline
the employees. There is a total absence of evidence of the type of
tactics or attitude which we have relied on in finding that a respond-
ent had no real intention of reaching agreement.' Accordingly, we
find no warrant on the basis of this record, for concluding that the
Respondent engaged in conduct violative of Section 8(a) (5) and (1)
of the Act.
2. Beginning early in May, the negotiations ran into difficulties.
In order to force the Respondent to accept the Union's contract terms,
the employees, at the Union's suggestion, engaged in a slowdown on
May 20 and 23. After communicating with the Union on both of those
dates, the Respondent laid off the employees on May 23 and told them
not to return if they were going to continue the slowdown. The
employees returned to work on May 24, on the Union's assurance to
them that everything was all right, although there is no indication that
they gave any specific pledge to the Respondent not to engage in
another slowdown.
Bargaining, which had been temporarily halted because of the slow-
down, resumed, but because they remained dissatisfied with the prog-
ress of the negotiations, the employees again engaged in a slowdown
on June 16. The Respondent thereupon informed the Union that
unless this conduct ceased immediately it would be forced to lay off
all employees who participated therein and told the local union that
if the slowdown did not cease the men would be discharged. The
employees did not resume their normal work habits, and at noon on
June 17 Respondent paid them off and told them there was no more
work for them as they had been engaging in a slowdown. That after-
noon the employees began to picket the Respondent's premises.
On Saturday, June 18, Respondent sent a letter to each employee
stating that he had been laid off because of his participation in a
second slowdown within 1 month. These letters informed the em-
ployees that if they desired to return to work again without engaging
in a slowdown they were to do so by 8 a.m. on Tuesday, June 21. The
c See, e.g, Fitzgerald Mills Corporation, 133 NLRB 877; Herman Sausage Co., Inc,
122 NLRB 168, enfd. 275 F . 2d 229 (C.A. 5)
8O DECISIONS OF NATIONAL LABOR RELATIONS BOARD
letters also advised that if they did not return by that time they would
be permanently replaced.
None of the employees responded to these letters, and picketing
continued until July 12. However, on June 23 and at all times there-
after, the Union sought their reinstatement. The Respondent refused,
on the ground that it was not obligated to reinstate them because
they had been replaced.
On the foregoing facts the Trial Examiner found that, although
the employees engaged in a slowdown on June 16, they became strikers
"when [they] rejected Respondent's opportunity to return to work
and continued picketing." He further found that they were unfair
labor practice strikers because the slowdown and picketing were
caused by the Respondent's bad-faith bargaining but that even if
they were economic strikers they were entitled to reinstatement be-
cause they had not, in fact, been replaced. He therefore concluded
that the Respondent violated Section 8(a) (3) by refusing to reinstate
the strikers upon application. We do not agree.
By engaging in the slowdown on June 16, the employees were en-
gaged in unprotected activity for which the Respondent was justified
in discharging them, notwithstanding that their object was lawful.,,
This the Respondent did on June 17, when it terminated their employ-
ment by paying them off and telling them it had no more work for
them because of that activity. They were thus validly discharged
and thereby lost any rights they might have had as employees of the
Respondent. Accordingly, the picketing, which occurred subsequent
to the discharge, was, in effect, "stranger picketing" which gave the
pickets none of the rights which accrue under the Act to strikers.
The Respondent's letters of June 18 were offers of reemployment to
the discharged employees on the valid condition that they promise to
refrain from future unlawful conduct. Since the conditions were
not discriminatory s and the offers were not accepted by the pickets,'°
these offers did not change the status of the former employees to
strikers or confer any additional rights upon them. Therefore, these
pickets were without reinstatement rights, and, contrary to the Trial
Examiner, we find that the Respondent did not discriminate against
them in violation of Section 8 (a) (3) and (1) of the Act.
[The Board dismissed the complaint.]
8 Elk Lumber Company, 91 NLRB 333 , 337-338.
0 Valley City Furniture Company, 110 NLRB 1589.
10 United Elastic Corporation, 84 NLRB 768, 775-776.
INTERMEDIATE REPORT AND RECOMMENDATIONS
STATEMENT OF THE CASE
This proceeding , with all parties represented , was heard before Trial Examiner
Albert P. Wheatley in Miami , Florida, on various dates beginning April 17, 1961,
RALEIGH WATER HEATER MFG. CO., INC. 81
and ending May 11, 1961. The issues litigated were whether Raleigh Water Heater
Mfg. Co., Inc., herein called Respondent, violated Section 8(a) (1), (3), and (5) of
the National Labor Relations Act, as amended, herein called the Act. After the hear-
ing in this matter counsel for the Respondent filed a motion to correct the record.
A similar motion was filed by counsel for the General Counsel. No opposition to
said motions have been received and said motions are hereby granted. Also after the
hearing in this matter counsel for the General Counsel, counsel for the Respondent,
and counsel for United Steelworkers of America, AFL-CIO, filed briefs with the
Trial Examiner which have been considered in the preparation of this report. In
addition, Respondent filed proposed findings of fact and conclusions of law. Said
proposed findings of fact and conclusions of law are adopted only to the extent con-
sistent with the findings of fact and conclusions of law hereinafter set forth.
Upon the entire record and observations of witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Respondent is, and has been at all times material herein, a corporation duly
organized under, and existing by virtue of, the laws of the State of Florida with its
principal office and place of business located in Miami, Florida, where it is engaged
in the manufacture, distribution, and sale of water heaters. In the course and
conduct of business operations Respondent annually purchases goods valued in ex-
cess of $50,000 which are delivered to its place of business in Miami, Florida, from
States of the United States other than the State of Florida. There is no issue herein
concerning jurisdiction and I find that the evidence adduced satisfies the Board's re-
quirement for the assertion of jurisdiction.
II. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America , AFL-CIO, hereinafter called the Union, is a
labor organization within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
This is one of those cases where the witnesses for the General Counsel are
thoroughly and completely contradicted by witnesses for the Respondent and factual
findings depend to a large extent upon credibility resolutions.
The crux of one of the major credibility issues concerns the reasons for the layoff
of employees on June 17, 1960. The General Counsel contends that the employees
were "locked out" because they joined or assisted the Union, or engaged in other con-
certed activities. Respondent contends they were laid off because they engaged in a
slowdown beginning on June 16, 1960. This issue involves the credibility of the
principal witnesses for each party and a resolution thereof requires a choice between
discordant versions of the witnesses.
It is almost without dispute that the employees were told that they were being
laid off because of their slowdown of production. Nevertheless, they (the employees)
did not challenge the statements that they were engaging in a slowdown. When Re-
spondent accused the Union of being responsible for the slowdown the Union denied
responsibility and that there was a slowdown by the employees at the time they were
told they were being laid off did not challenge the statements that they were engaging
in a slowdown. Having observed the witnesses and analyzed the evidence herein it
appears to me that if there had not been a slowdown the employees would have raised
an issue with respect to this matter at the time of the layoff and the fact that they
did not warrant a finding and conclusion that there was in fact a slowdown.
If there was a slowdown the next logical question is why. The main reason sug-
gested by the record is that it was to force Respondent to engage in good-faith bar-
gaining and to accept the contract terms sought by the Union (several witnesses so
testified) and that it was caused by the Union (several witnesses so testified). An
additional reason for believing and finding that the Union caused the slowdown is
the testimony of several witnesses that practically all of the production and mainte-
nance employees engaged in such conduct simultaneously, as if by prearranged sig-
nal, and from observation of the witnesses and analysis of the record (both sworn
testimony and written documents) I believe it highly improbable that Respondent's
officials or its employees brought about such a situation. On the other hand, there
is both direct and indirect evidence warranting a finding that the Union brought it
about.
In addition to the foregoing, the absence of evidence establishing that Respondent,
prior to June 16, engaged in activity proscribed by Section 8(a)(1) of the Act,
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
independent of whatever it may have done during the contract negotiations (the
absence of independent 8(a)(1) activity) and Respondent's efforts to get the em-
ployees to perform their work properly and efforts to get the employees to come
back to work immediately after the layoffs tend to negate the contention that
Respondent locked out its employees because of their union or concerted activity.
Furthermore, any finding that Respondent locked out its employees to force the
Union to accept contract terms sought by Respondent would have to be based upon
inference from the record as a whole and I believe such an inference not warranted
herein. The record does not establish that Respondent was anxious to obtain a writ-
ten contract of any kind, either on his own terms or on the Union's terms. On the
other hand, the record does reveal that the Union was anxious to obtain a written
contract and was rather insistent that Respondent accept some proposals which
Respondent did not want to accept.
It follows from the foregoing that I am finding and concluding that there was a
slowdown to force Respondent to engage in good-faith bargaining and to accept the
Union's proposals and that the layoffs were because of this slowdown.
The Facts 1
On April 20, 1960,2 the Union was certified by the National Labor Relations
Board as the exclusive bargaining representative of Respondent's employees in a
production and maintenance unit 3 and on May 2 a series of negotiations looking
toward a collective-bargaining agreement began.
At the first meeting the Union submitted a proposed contract to Respondent. After
examining the document the Respondent (Leo Schor, president of Respondent) re-
quested that he be given an opportunity to examine it more closely and the parties
agreed to meet the following day. At the meeting on May 3 Respondent advised
the Union that Respondent believed it should seek advice and guidance from an
attorney and there was only a limited discussion of contract terms at this meeting.
Several days later Respondent advised the Union that Respondent had engaged Dan
P. S Paul of the firm of Paul & Sams. Shortly thereafter a meeting was scheduled
for May 18 in Attorney Paul's office.
When the parties met on May 18 Respondent then presented its own contract pro-
posal. The union representatives did not consider Respondent's document a good-
faith offer and rejected it in insulting and vulgar language. One of the union repre-
sentatives was so aroused that he (Nicholas Fayad) instructed a subordinate union
official (Carlos Suarez) to put plan number "two" into effect.4 Nevertheless. the
parties continued their discussions, using the Union's proposal of May 2 as a basis
for bargaining. Agreements were reached on some, but not all, items. The meeting
lasted about 2 hours and was terminated at lunch time. Attorney Paul was not avail-
able for an afternoon session or for a session the following day and reiected the
Union's suggestion that the parties meet after 5 p.m. A suggestion that the parties
meet without Attorney Paul being present was rejected by Respondent's president
(Schor).
At a union meeting held on or about May 19 Carlos Suarez, a staff representative
of the Union who had been present at prior negotiation meetings, told the employees
that to obtain the contract terms sought by the Union the employees should exert
pressure on Respondent and engage in a slowdown movement.5 The following day
11 will state in narration what I believe and find to be the facts as revealed by the
evidence adduced. All evidence on disputed points is not described so as not to burden
unnecessarily this report However, all has been considered and, where required, resolved.
In determining credibility In this proceeding I have considered inter alia• the demeanor
and conduct of witnesses, their candor or lack thereof ; their apparent fairness, bias, or
prejudice ; their interest or lack thereof ; their ability to know, comprehend, and under-
stand the matters about which they have testified ; whether they have been contradicted
or otherwise Impeached ; the interrelationship of the testimony of witnesses and the
written evidence presented; and consistency and inherent probability of the testimony.
3 All of the events In this case occurred In 1960.
3 The certification followed a consent election conducted on April 12 in which 29 ballots
were cast for the Union and 8 ballots against the Union. There were approximately
40 employees eligible to vote.
4 Respondent's president, Schor, so testified, the union official accused of making this
remark (Nicholas Fayad) categorically denied making it Suarez did not testify con-
cerning this matter.
5 Ernesto de la Torre, Jose Camejo, Roberto Cosco Palaez, and Victor Tomas Marrero
so testified. Suarez testified that the discussions at the meeting on May 19 were limited
to nomination of officers and that no mention was made of the negotiations between the
RALEIGH WATER HEATER MFG. CO., INC. 83
(Friday, May 20) practically all of the production and maintenance employees
simultaneously engaged in a slowdown. Upon inquiry, Eugene R. Olive, Respond-
ent's foreman, was told by Rinaldo Gonzalez, vice president of Local 5963 (the Local
having jurisdiction over Respondent's employees), that "the reason for the slowdown
was that the Union had advised that it was the only way to get Mr. Schor to sign the
contract, and so, therefore, we were all to slow down." Similar comments were made
to President Schor by Salvador Velazquez, president of Local 5963 and one of the
union negotiators .6 The slowdown continued through May 20 and was resumed on
Monday, May 23. On Friday, May 20, Respondent sent the Union a telegram and
at the same time posted a copy thereof on its bulletin board. The telegram reads as
follows:
This is to advise you that unless our employees immediately cease the slowdown
which began this morning and which your representatives advise us is union
directed we will be forced to lay off all employees who participate in such
misconduct.
On Monday, May 23, Respondent sent the Union a telegram reading:
Despite my advice to you on Friday the slowdown directed by you has con-
tinued this morning accordingly we will lay off all employees who participated
in such misconduct effective noon today Monday 5-23-60 please advise me
when these men will be willing to return to work and perform their normal
duties without a slowdown unless I receive such advice from you by noon
Wednesday 5-25-60 I will be forced to replace the employees guilty of such
misconduct by other permanent employees.
At the close of the business day on May 23, the employees were given their pay
and told "not to come back to work if they was going to continue the slowdown.
And if they was willing to come back without the slowdown to come back the fol-
lowing morning, that they could come back to work then."
On Tuesday, May 24, immediately prior to the beginning of the workday, Nicholas
Fayad, a staff representative for the Union, appeared at Respondent's plant and told
the employees that "everything was all right for them, that he fixed it," and that
the employees should return to work. The employees then went back to work and
worked at their normal rate of production.
On the same date that the employees returned to work (on May 24) the Union
sent Respondent a telegram reading as follows:
We are in receipt of your telegram advising us that your employees have been
locked out of your plant this organization categorically denies that they have
caused any slowdown of production or the disruption of normal operation of
your business out of deep concern for the welfare of your employees, their
families, and in most cases their only source of income a concern that we
trust that you also share we stand willing to negotiate any differences or mis-
understandings that may exist at the present time your employees of course
want to continue their employment we have and will continue to bargain in
good faith for your employees as the bargaining agent certified by the National
Labor Relations Board we must point out that we feed that this lockout is in
violation of the National Labor Relations Act and we are contemplating filing
a charge with the National Labor Relations Board we trust that you will give
this matter your immediate and serious consideration and look forward to a
long relationship that will prove mutually beneficial for your business and for
your employees respectfully
On May 26, 1960, negotiations looking toward a collective-bargaining contract
were resumed. On this date the parties met in the offices of Attorney Paul. After
some opening remarks by Oakley Mills, a staff representative for the Union who
was making his first of a series of appearances at the negotiation meetings involved
herein, the parties discussed the various paragraphs of the Union's proposal of
Union and Respondent and denied that he told the employees to engage in a slowdown.
I find the facts to be as stated above.
6 Olive and Schor so testified Gonzalez did not testify in this proceeding . Apparently
he was in Cuba at the time of the hearing in this matter. Velazquez categorically denied
that he ever told Schor that the employees had been instructed to engage in a slowdown,
that he ever told the employees to engage in a slowdown, that he ever engaged in a
slowdown, and that he was aware that any slowdown of employees of Respondent had
taken place. I find the facts to be as set forth above.
641795-63-voL 186-7
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
May 2 but little was accomplished except that the sections previously agreed upon
were initialed (by each side) as approved. This meeting broke up about noon
when Attorney Paul said he had another meeting to attend. It was suggested that
the parties get together in the evening but Attorney Paul rejected this suggestion
saying that he was not going to get into an endurance contest with the Union.
Another meeting was held in Attorney Paul's office during the morning of the fol-
lowing day, May 27. At the opening of this meeting an argument ensued concern-
ing matters other than contract terms which resulted in a breakdown of negotiations,
and, ultimately, adoption of a suggestion by Respondent's president (Schor) that he
(Schor) meet alone with Union Staff Representative Mills in an attempt to expedite
a contract.
During the latter part of May and the early part of June Messrs. Schor and Mills
met privately on five occasions.? During the series of meetings Schor and Mills
discussed the various articles and sections of the Union's proposal of May 2 and
reached agreement concerning some, but not all, of the terms and conditions of
employment sought by the Union. Near the end of this series of negotiations Mills
submitted to Schor a redrafted contract which included some terms and conditions
of employment which had been discussed but upon which accord had not been
reached.8 After discussing this contract proposal Schor told Mills that because of
the issues still not resolved and some of the language in the document under con-
sideration which would probably require some clarification he (Schor) wanted
advice and counsel from his attorney (Dan Paul). Thereafter, on or about June 14,9
Union Staff Representatives Fayad, Suarez, and Mills met with Attorney Paul at
the Biscayne Terrace Hotel in Miami, Florida. Schor was at a hospital visiting his
father who was ill and consequently did not attend this meeting. He attended all
other negotiation meetings. As stated in the Union's brief "the meeting was
acrimonious." When the union representatives endeavored to discuss the contract
terms presented to Schor at the conclusion of the Schor-Mills series of negotiations
Respondent (through Attorney Paul) repudiated and rejected all prior commitments
except to reoffer the Union the contract terms originally submitted by the Respondent
on May 18.10
On the same date that Respondent repudiated and rejected prior commitments and
after such action, a meeting of Respondent's employees was held at the Union's
office. At that time the employees were informed of the action noted above and,
for the second time, advised (by Suarez and Rinaldo Gonzalez) to exert pressure
on Respondent and engage in a slowdown movement."
On June 15 Foreman Olive conferred with employee Angel Diaz about some
work Diaz was doing and in the course of this conversation asked Diaz if there was
going to be another slowdown like there had been in May. Diaz responded that if
Mr. Schor did not sign a contract there would be "much trouble" for him.12
On June 16 Respondent's production and maintenance employees again engaged
in a slowdown movement which was almost identical to the May slowdown. Re-
spondent sent a telegram to the Union advising that unless the employees "immedi-
ately ceased the slowdown which began this morning" Respondent would be "forced
to lay off all employees who participate in such misconduct." A copy of this tele-
° On or about May 27 and 31 and June 1, 2, and 7
8Inter alia provisions concerning top seniority for union officers, overtime after 8 hours,
union membership and checkoff of union dues, and wages
8 Respondent offered evidence consisting of testimony by Schor that a bargaining meet-
ing was held on June 8 and an exhibit introduced into evidence while Attorney Paul
was testifying purporting to be notes of a bargaining session held on June 8 tending to
establish that a negotiating meeting was held on that date It is noted that in its brief
Respondent sets forth the dates it contends bargaining sessions were held and that June 8
Is not one of the dates listed. In any event, upon careful analysis of the record and
inherent probability I accept the contention of the General Counsel that no negotiating
meeting took place on June 8.
1° Based upon the testimony of Mills and Payad and the fact that Paul's testimony
with respect to what transpired at this meeting is limited to a denial that he "at any
time in any collective bargaining session ever said that nothing has been agreed to" or
"words of similar import."
"There is a direct conflict of evidence between the testimony of witnesses for the
General Counsel and witnesses for the Respondent as to whether a slowdown movement
was suggested. I find the facts to be as noted above
12 There is a direct conflict of evidence between Olive and Diaz. Diaz denied making
the statement attributed to him by Olive. The facts noted above are based upon Olive's
testimony, which I credit.
RALEIGH WATER HEATER MFG. CO., INC. 85
gram was posted on Respondent's bulletin board on the same date. The Union
did not reply to this telegram. Respondent's president (Schor) asked Rinaldo
Gonzalez, vice president of the local having jurisdiction over Respondent's em-
ployees, the reason for the slowdown and was told that "the Union told us to go on
a slowdown so that we could get you to sign a contract." Schor advised Gonzalez
that if the slowdown did not end, the men would be discharged and that Respondent
had so advised the Union and Gonzalez replied that he had seen the telegram posted
on the bulletin board and realized this. Salvador Velazquez, president of the local,
also indicated to Schor that the slowdown was inspired by the Union.13
The slowdown continued on Friday, June 17, and at noon on that date the
employees who had engaged in the slowdown were called together, paid off, and
told there was no more work for them as they had been engaging in a slowdown.14
Foreman Olive testified that no one challenged the statement that they had been
engaging in a slowdown. Only one witness testified to the contrary. Jose Santalla
testified that when the employees were informed that they were being laid off because
of the slowdown "they [the employees] said we have not been in it." In the light
of the entire record, inherent probabilities, and observations of witnesses I credit
Olive's testimony rather than Santalla's on this issue.
After the employees left the plant on June 17, some of them went to the union
hall where they obtained picket signs 15 and they then returned to the plant and
picketing commenced that afternoon. Picketing continued until about July 12, 1960.
Two pickets were stationed in front of the plant and two in back and the remainder
of the employees waited across the street for their turn to picket. Respondent
contends the pickets engaged in illegal activities. This matter will be considered
in a separate section of this report.
On Saturday, June 18, Respondent mailed to the employees laid off on June 17,
a letter which reads as follows:
DEAR MR. __________:
As you know, you were laid off at Noon, Friday, June 17, 1960, for partici-
pating in a slowdown. This is the second time within a month that the Union
has directed such a slowdown in complete disregard of its legal obligation
to bargain in good faith.
If you desire to return to work and to perform your job without participating
in any slowdown please report for work not later than 8 a.m. Tuesday, June 21,
1960.
If you do not return to work by this time, the Company will be forced to
exercise its rights under the National Labor Relations Act, to fill your job with
another permanent employee.
Sincerely,
A copy of the form letter quoted immediately above was sent to the Union with
a covering letter advising the Union that the enclosed letter had been sent to all
employees who were laid off and that the Respondent was willing ,to resume negoti-
ations. After an exchange of telegrams, in which no mention of Respondent's
reinstatement offer was made, a negotiation meeting was scheduled for June 23
at 5 p.m.
One of the issues in sharpest focus in this case is whether on Monday and Tuesday,
June 20 and 21, the employees were deterred from returning to work because the
doors of Respondent's plant were closed or whether the doors were open but the
men did not return to work and instead continued picketing to force Respondent
to bargain in good faith and to accede .to the Union's demands. Witnesses for the
General Counsel testified the doors were closed and this deterred them from returning
to work. Witnesses for Respondent testified the doors were open and Respondent's
officials were on hand to welcome back the employees but the employees did not
come back but rather continued picketing. On this issue, as on the issue of whether
13 See footnote 6. Velazquez testified that about 30 minutes before the layoff he
(Velazquez) and Gonzalez were informed by Schor that there was going to be a layoff
because of the slowdown and at that time both he (Velazquez) and Gonzalez denied that
there was a slowdown. I find the facts to be as stated above.
14 Twenty-six of the approximately thirty-one production and maintenance employees
were laid off Each of these except Octavio Mir is named in the complaint as having been
laid off.
15 The signs had been made up at the time of the May layoff and read as follows,
"Please ! Don't take our jobs. We have been locked out. Local 5963 United Steel
Workers of America, AFL-CIO."
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there were slowdown movements and for similar reasons (from the "congeries of
facts," 16 observations of witnesses and inherent probability), I am resolving credi-
bility against the General Counsel.
On June 23, the parties met at the Biscayne Terrace Hotel. Union Staff Repre-
sentative Mills and a committee of two employees (Velazquez and Gonzalez)
represented the Union and Messrs. Schor and Paul were present for Respondent. At
the opening of this meeting Mills endeavored to get Schor to admit that he and
Schor had "reached an agreement on almost an entire contract" and "to get along
with our work and get these people [the laid-off employees] back in ,the plant where
they belong." Schor remained silent even when Attorney Paul remarked "there is
nothing agreed to . . . as long as there is anything in the contract proper that has
been presented, not agreed to, as long as there is anything, there is no agreement"
Paul kept insisting that there were no agreements until there was agreement on
an entire contract and Mills kept insisting that there was agreement on practically
all terms and conditions of employment and tried, unsuccessfully, to get to discussion
of the clarifying language which Schor had earlier indicated he desired. Mills
sought reinstatement of employees laid off on June 17 but Attorney Paul refused
stating that some of the employees had been "taken back" and others had been
replaced and that Respondent had a "full complement of workers." The record
reveals that none of the employees laid off returned to work prior to June 30, that on
that date three employees returned (Rafael Canes, Victor Tomas Marrero, and
Armando Santiago) and that by that date Respondent had been able to get only
one or two replacements. The record further reveals a stipulation purporting to
reveal the numbers of poduction and maintenance employees during the weeks
between June 17 and October 28. However, the Trial Examiner is not relying upon
this stipulation because it is obviously not in accord with the other evidence in this
case. For instance, the stipulation reveals that there were 31 employees the week
ending June 17 and 24 employees on the week ending June 24 whereas the record
reveals that there could not have been 24 employees as of that date.
Another negotiation meeting was scheduled for June 30 but Mills became con-
fused about the time and was late in arriving. By the time he arrived Paul and
Schor had left the meeting place.
As noted above, three employees were reemployed on June 30. At the time of
their reemployment Respondent unilaterally increased their pay. The increase was
in the amount previously offered the Union during the negotiations.
On July 1the Union filed the initial charge in this matter.
The next negotiation meeting took place in the presence of Federal Mediator
McAllister on July 7. Various articles of the Union's contract proposal were dis-
cussed but the main accomplishment was a sharpening of the issues in dispute. The
Union again asked Respondent to reinstate the employees laid off on June 17 and
Respondent again refused stating that they (the employees) had been replaced and
adding that the matter was before this Board and Respondent would await this
Board's decision. There is some confusion as to whether in fact Respondent had
a full complement of employees and as to whether the comment about awaiting this
Board's decision had reference to further bargaining as well as to the reinstatement
request. In the light of subsequent events it appears probable that the statement
about awaiting this Board's decision did not have reference to further bargaining
and I so find. As noted above there is considerable confusion as to whether in fact
the employees laid off on June 17 had been replaced. I believe and find that Re-
spondent had ,the burden of establishing this matter and that it failed to do so. See
New Orleans Roosevelt Corp., 132 NLRB 248.
The testimony of witnesses (on .both sides) concerning the reemployment of Jose
Santalla, Roberto Vico, Nester Noriega, Alberto Cortez, and Arnesto de la Torre is
confusing and not in accord with a written document received in evidence pursuant
to a stipulation (a document purporting to list the names of employees laid off, their
weekly rate of pay, their hourly rate, the dates they were reinstated, and the hourly
rate at which they were reinstated-General Counsel's Exhibit No. 25). Neverthe-
less, it does appear and I find that at the time the picketing ceased Santalla, Vico,
Noriega, and Cortez informed Respondent that the picket line was being abandoned
and sought reinstatement on behalf of themselves and the other pickets. Schor
told them that because of replacements he could not take care of the other pickets
and suggested that they (the four employees) not worry about the others and asked
them if they wanted work. Upon receiving an affirmative reply and assurances that
these employees were abandoning the Union, Schor offered them work which they
accepted. Each of these employees was reemployed at a higher rate of pay than he
10 N L.R.B. v. Link-Belt Company, 311 U.S. 584, 588.
RALEIGH WATER HEATER MFG. CO., INC. 87
had been receiving. In all instances except one (Cortez) the wage rate given was
the wage rate offered by Respondent to the Union during the negotiations. Cortez
was given a higher wage rate. The employees reinstated were required to sign
slips promising that they would not engage in another slowdown.
The next negotiation meeting was held on July 15. At the opening of this meeting
Union Staff Representative Mills informed Respondent that the Union was ready
to concede some of the points in dispute and asked the Respondent to outline the
disputed points. Respondent stated that Mills was aware of the points in dispute
and there was no reason to repeat them. Nevertheless, Respondent proceeded to
list rapidly the points still in issue and Mills offered to concede on some points and
asked if Respondent could do anything on the others. Respondent refused stating
that the plant was in operation, that Respondent was not going to give anything and
that it was a waste of time continuing "talking to you [Mills]." The meeting ended
on that note.
The next (and last) negotiation meeting took place on July 29. At this meeting
the Union sought concessions from Respondent on the issues still in dispute and
reinstatement of the employees laid off on June 17. Respondent stated that it was
not willing to do either and that its position was that until the unfair labor practice
charges pending before this Board were disposed of Respondent would not be
willing to enter into "any collective bargaining contract with the Union" and the
meeting thus ended.
On October 7, Respondent laid off six employees, including Vico, Noriega, and
Santalla (each of whom had been laid off on June 17 and reemployed when the
picketing ended). Vico and Noreiga have not been reemployed since October 7. In
1961 Noriega was asked by Respondent whether he wanted to go back to work and
replied in the negative. Santalla was reemployed, but the record does not reveal
when, and again laid off on October 21 along with seven other employees. He was
again employed by Respondent on November 7. Respondent's president, Schor,
testified (and there is no evidence to the contrary) that there was a decrease of sales
in September and October and that the October layoffs were because of the decline
in business and Santalla testified that at the time of his layoff he asked why he was
being laid off and was told because work was slow. The only evidence tending to
establish that Vico, Noriega, and Santalla were laid off because of their participation
in the picketing mentioned in this report (as alleged in the complaint) consists of
the evidence already alluded to herein and testimony concerning a conversation
between Santalla and Noriega regarding their union activities which may have been
overheard by Respondent's officials. I believe this insufficient to support the allega-
tions of the complaint.
Picket Line Misconduct
At the hearing in this matter, Respondent, for the first time, asserted that the
employees named in the complaint engaged in misconduct during the picketing.
However, the significance of this assertion is not apparent. For instance, nowhere
(not even in its brief) does Respondent specify the individuals that Respondent
denied, or that should be denied, reemployment because of misconduct and it is
obvious from the record and the brief that Respondent did in fact reemploy many
of those accused of misconduct and offered reemployment to others after they
allegedly engaged in misconduct. In view of the foregoing, I believe that I should not
resolve the factual issues concerning misconduct and on my own declare that spe-
cific individuals may not be eligible for reinstatement. In the circumstances in-
volved herein, none of the acts complained of are sufficiently serious to warrant
such action.
Conclusions
As noted above, this is one of those cases where the parties engaged in a lengthy
series of bargaining conferences and exchanged and discussed contract proposals.
It has long been settled law, however, that the mere fact that the parties meet and ex-
change proposals and discuss them does not of itself establish that they have bar-
gained in good faith. Such conduct, to quote from some of the decided cases, may
well amount only to "surface bargaining" or "shadow boxing" or "giving the union
a run around." 17 The question for decision herein is whether the totality of Re-
spondent's conduct reveals that it went through the motions of negotiations as a
pretense with no sincere desire to reach an agreement. Stated another way, whether
17 N.L.R B. v. Whittier Milla, at al., 111 F. 2d 474, 478; Stonewall Cotton Milla, Inc. v.
N.L.RB., 129 F. 2d 629, 631 (C.A. 5), cert. denied 317 U.S. 667; N.LR.B v. Athens
Manufacturing Company, 161 F. 2d 8 (C.A. 5).
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent has met the obligation imposed by the Act "to meet at reasonable times
and conferring good faith."
On the basis of the foregoing findings of fact I conclude that Respondent gave
mere lipservice to its obligation to bargain and engaged in surface bargaining by
going through the motions of collective bargaining without any real intent of con-
summating an agreement.is That such is the situation is revealed by Respondent's
repudiation of prior commitments and attempts to begin negotiations de novo and
by Respondent's unwillingness to enter into any collective-bargaining agreement until
the unfair labor practice charges filed by the Union were disposed of by this Board-
by Respondent's conduct, inter alia, at the negotiation meetings held on June 14 and
thereafter. Respondent's evasion of the obligations imposed by the Act is further
revealed by its unilateral granting of wage increases while going through the motions
of bargaining.
When the employees rejected Respondent's "opportunity to return to work" and
continued picketing they became strikers. Respondent contends that they became
"economic strikers" (see Respondent's brief page 37) but I cannot accept this con-
tention because, as noted above, the June 16 slowdown and the picketing thereafter
was brought about by Respondent's repudiation and rejection of prior commitments
and was to force serious and conscientious consideration of the Union's proposal.
In this light I find and conclude that the employees became unfair labor practice
strikers. As unfair labor practice strikers they were entitled to reinstatement upon
application. As noted above, such an application was first made on June 23 and
renewals were made thereafter but Respondent did not honor these requests. Even
if the employees were deemed economic strikers they still are entitled to reinstate-
ment and backpay since the offer to return to work was made before any substantial
number of them, if any, had been replaced. The record reveals that by June 30 Re-
spondent had been able to get only one or two replacements.
IV. THE REMEDY
Having found that Respondent has engaged in unfair labor practices in violation
of the Act, I recommend that Respondent, to effectuate the policies of the Act,
cease and desist therefrom and take the affirmative action hereinafter specified.
Having found that Respondent engaged in several distinctive acts constituting
violations of Section 8(a)(1) and (5) of the Act and believing that the record
discloses an attitude of opposition to the statute's purposes I recommend that Re-
spondent cease and desist from engaging in the conduct found violative of the Act
and from in any other manner refusing to bargain.
Having found that Respondent's employees are unfair labor practice strikers and
entitled to reinstatement on and after June 23, 1960, the date of their unconditional
application for reinstatement, I recommend that Respondent, if it has not already
done so, offer to those employees who went on strike on June 21 full reinstatement
to their former or substantially equivalent positions, dismissing, if necessary, em-
ployees hired since June 23 to replace them. If, after the dismissal of replacement
employees, there are not enough positions available for all the workers entitled to
reinstatement, available positions should be distributed among them, without dis-
crimination because of their union membership, activity, or participation in the strike,
on basis of a seniority system, or any other nondiscriminatory practice with respect
to work assignments previously followed by the Respondent in the conduct of its
business. The employees for whom no work may be immediately available, after
such distribution, should be placed on a preferential hiring list, with priorities de-
termined on the basis of the seniority system or other nondiscriminatory system
previously followed by the Respondent in the conduct of its business; they should
be offered reinstatement thereafter in accordance with such a list as positions be-
come available and before other persons are hired for the work. Reinstatement, as
recommended in this report, should be effectuated without prejudice .to the seniority
of the employees or any of their other rights and privileges. It is also recommended
that Respondent reimburse all the employees entitled to reinstatement for any loss of
pay they may have suffered by reason of Respondent's discrimination with respect
to them, by a payment to each of a sum of money equal to the amount which each
normally would have earned as wages during the period from June 23, 1960, the
date of Respondent's refusal to reinstate, to the date of Respondent's offer to re-
instate the employees or place them on a preferential hiring list in the manner
described above, less his net earnings during that period. Such pay losses shall be
computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289.
18 See N L R B. v. Herman Haulage Company, Inc., 275 F. 2d 229 (C.A. 5).
WALDO ROHNERT CO. 89
ULTIMATE FINDINGS AND CONCLUSIONS
In summary, the Trial Examiner finds and concludes:
1. The evidence adduced in this proceeding satisfies the Board 's requirements for
the assertion of jurisdiction herein.
2. United Steelworkers of America, AFL-CIO, is a labor organization within the
meaning of the Act.
3. The following employees of Respondent constitute a unit appropriate for the
purposes of collective bargaining within the meaning of the Act.
All production and maintenance employees employed at Respondent's plant
located in Miami, Florida, but excluding office employees , guards and watchmen,
service personnel , professional and supervisory employees as defined in the Act.
4. At all times since on or about April 20, 1960, the Union has been the ex-
clusive representative of all the employees in the aforementioned unit for the pur-
poses of collective bargaining with respect to rates of pay, wages, hours of employ-
ment, and other conditions of employment.
5. The evidence adduced establishes that Respondent refused to bargain in good
faith and thereby engaged in unfair labor practices within the meaning of Section
8(a) (1) and (5) of the Act by repudiating prior commitments and attempting to
begin negotiations de novo, by expressing an unwillingness to enter into any
collective -bargaining agreement until the unfair labor practices charges filed by the
Union were disposed of by this Board and by unilaterally granting wage increases
while going through the motions of bargaining.
6. The strike which lasted from June 21 , 1960, to on or about July 12, 1960, was
an unfair labor practice strike.
7. The strikers mentioned in the preceding paragraph made unconditional appli-
cation for reinstatement on June 23 and thereafter which Respondent failed and
refused to honor thereby engaging in unfair labor practices within the meaning of
Section 8 (a) (1) and ( 3) Of the Act.
8. The aforesaid activities are unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Waldo Rohnert Co. and Freight , Construction , General Drivers,
Warehousemen and Helpers Local Union No. 287, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America , Independent . Case No. 20-CA-2139.
March 5, 1962
DECISION AND ORDER
This proceeding is brought under Section 10(b) of the National
Labor Relations Act. Upon a charge filed by the Freight, Construc-
tion, General Drivers, Warehousemen and Helpers Local Union No.
287, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Independent, herein called the Union,
the General Counsel of the National Labor Relations Board by the
Regional Director of the Twentieth Region issued a complaint dated
October 18, 1961, against Waldo Rohnert Company, herein called
Respondent, alleging that Respondent had engaged in and was en-
gaging in unfair labor practices affecting commerce within the mean-
ing of Section 8(a) (1) and (5) and Section 2(6) and (7) of the Act,
as amended. Copies of the charge, complaint, and notice of hearing
were duly served upon Respondent.
136 NLRB No. 5.