S & M Manufacturing Co.

National Labor Relations Board - Board Decisions

Jun 20, 1967

165 N.L.R.B. 663 (N.L.R.B. 1967)

S & M MANUFACTURING CO.
S & M Manufacturing Company and
Miscellaneous & Allied Division of Union,
Local 80-A, Distillery , Rectifying , Wine and
Allied Workers International Union of
America, CLC, AFL-CIO. Case 30-CA-247.
June 20, 1967
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On April 15, 1966, Trial Examiner Eugene E.
Dixon issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
further found that the Respondent had not engaged
in certain other unfair labor practices alleged in the
complaint and recommended that these allegations
be dismissed. Thereafter, the General Counsel and
the Respondent filed exceptions to the Decision and
supporting briefs.
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.
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 briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner but only to the extent that they are
consistent herewith.
1. We find, in agreement with the Trial Examiner,
that the Respondent violated Section 8(a)(1) of the
Act when Foreman Papp made the coercive
statement to employee Kescenovitz that the
Respondent would not enter into a contract with the
Union.
2. We disagree with the Trial Examiner's finding
that the Respondent did not refuse to bargain in
good faith in violation of Section 8(a)(5) of the Act.
The Respondent and the Union have enjoyed a
collective-bargaining relationship for some 18 years,
with its most recent contract expiring on August 31,
1964. Negotiations for a new contract began in
August and reached an apparent impasse. At a
meeting on January 17, 1965, the union membership
voted 37 to 6 to strike, and on January 20 the
employees did go out on strike. Negotiations
continued during the strike although the Respondent
continued to operate with replacements. In mid-
April it appeared that a contract settlement had
been reached, but the union membership rejected
the contract proposed and the strike was resumed.
663
On June 16, the Respondent submitted another
contract proposal to the Union but conditioned its
offer upon acceptance that day. As found by the
Trial Examiner, the terms of the proposed contract
were discussed and agreed upon at a meeting that
day. The union membership voted to accept on
Sunday, June 20, but thereafter the Respondent
notified the Union that the contract offer had
expired. Harry Maim, Respondent's president,
testified that when he was informed by the
Company's attorney that the contract had been
ratified by and was acceptable to the Union, he told
him that the Company was no longer interested in
signing that contract. About mid-September the
Union abandoned the strike and gave notice to the
Company that 12 remaining strikers intended to
return to work.
While concluding that the Respondent did not
engage in good-faith bargaining, the Trial Examiner
nevertheless dismissed the refusal to bargain
charge, because he found that as of March 23, 1965,
the Union no longer represented a majority of the
employees and therefore the Respondent had no
obligation to recognize the Union or bargain
collectively with it. He based this finding on the fact
that as of March 23, 1965, 15 striking union members
had been replaced by the Respondent; that as of this
same date 10 union members had voluntarily
resigned from the Company, and 4 other strikers had
returned to work and had notified the Union in
writing of their withdrawal from the Union; and that
since the union membership at the time the strike
started on January 25, 1965, did not exceed 47, a loss
of 29 members as of March 22 would leave the Union
without a majority of the 47 employees in the unit.
We do not agree that the "resignation" of 10
employees who were union members precludes their
being counted for purposes of determining the
Union's majority status. When a striker resigns to
take another job, it does not automatically eliminate
him as a striking employee, absent unequivocal
evidence of intent to permanently sever his
employment relationship; nor does it relieve an
employer of his obligation to reinstate him upon
application when the strike is over if he has not been
replaced.
In a letter to the Board's Regional Office from the
Respondent's attorney, Van Horne, dated
August 24, the following comment was made:
. . . 10 employees who had gone on strike
had voluntarily signed termination letters.
These letters were required by their subsequent
employers before they were hired. S & M felt that
a man's livelihood and family took precedence
over strike problems and therefore gave the
employees termination letters so they could
work elsewhere. [Emphasis supplied.]
The foregoing letter clearly establishes that the
Employer knew that the resignations of these
employees was a prerequisite to securing even
165 NLRB No. 59
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interim employment elsewhere. This does not
establish, however, that these employees had
necessarily made a decision permanently to
terminate their employment should they
subsequently be offered reemployment. In these
circumstances and absent any other evidence of a
permanent employment termination, we find that
mere submission of their "resignations" did not
constitute an unequivocal abandonment of their
status as strikers or of their right to further
employment with the Respondent.' The record does
not indicate that these 10 employees were in fact
replaced, and they should, therefore, properly be
included in determining the Union's majority status.
Accordingly, we find, contrary to the Trial
Examiner, that the Union retained its majority and
its status as bargaining representative of the
employees.
We further find that the strike on January 20,
1965, although economic in its inception, was
converted to an unfair labor practice strike on
June 16, 1965. On that day the Respondent
submitted to the Union a contract, with the condition
that this contract "is subject to approval and
acceptance on June 16, 1965, only. The terms and
provisions shall be considered rejected beyond that
date." However, the Respondent knew at the time of
its offer that, even if it was acceptable to the Union's
chief negotiators, as it proved to be with only minor
modifications, it was subject to ratification by the
union membership. The ratification procedure was
used by the Union earlier, when the Easter contract
proposal was taken back to the union membership
for ratification. As the parties were negotiating as
late as 3:30 p.m. in the afternoon , it is readily
apparent that Respondent could not reasonably
expect the Union to notify its membership and get
ratification of the contract proposal that same day.
Accordingly, we find that Respondent's conditional
offer in these circumstances was so unreasonable as
to constitute bad-faith bargaining. Moreover,
Respondent's failure and refusal to accept its own
contract proposal, when it was ratified by the union
membership 4 days later, indicates that Respondent
was not really interested in reaching an agreement
and is additional evidence of its bad faith. In view of
the foregoing, and the Respondent's violation of
Section 8(a)(1), we find that the Respondent as of
June 16, 1965, refused to bargain in good faith in
violation of Section 8(a)(5) and (1) of the Act, and
i See The Fafnir Bearing Co , 73 NLRB 1008, 1017; Republic
Steel Corporation , 62 NLRB 1008, 1029
2 See Getlan Iron Works, Inc., 155 NLRB 1052, Dickten &
Masch Mfg Company , 129 NLRB 112
3 The employees ' notice of intention to return to work was in
the following form
TO S & M MANUFACTURING CO.
The undersigned members of the M .A D of Union Local
80A, D R W A W I U of CLC, AFL-CIO , does hereby notify
the S & M Manufacturing Co, 2901 W. Mill Rd , Milwaukee,
thereby also converted the strike into an unfair labor
practice strike.2
On September 15, 1965, the Union sent the
Respondent a letter stating that on September 12 the
union membership voted to withdraw the pickets
and accept the contract proposal submitted by the
Employer on June 16, 1965, thereby considering
such proposal as an effective and binding contract.
Enclosed with that letter were separate notices by 12
employees of their intention to return to work.3 We
find it unnecessary to consider or adopt the Union's
contention that their belated acceptance of the
Employer's earlier contract proposal made it a
binding contract. Inasmuch as the notices of intent
to return to work were unequivocal on their face and
indicated no reservation with respect to the
Employer's acceptance of the Union's position vis-a-
vis the existence of a binding contract, we find that
they constituted unconditional offers to return to
work. As the record shows that six of these
employees had been replaced prior to June 16,' we
shall order that the remaining six employees, who
were not replaced prior to that date,5 be offered
immediate and full reinstatement to their former or
substantially equivalent positions, dismissing, if
necessary, any employees hired to replace them on
or after June 16, 1965.
THE REMEDY
As we have found that the Respondent has
unlawfully refused to bargain in good faith, we shall
order the Respondent to cease and desist therefrom,
and to bargain in good faith, upon request, with the
Union and if an understanding is reached, to embody
such understanding in a signed agreement.
In view of our conclusion that Respondent's
refusal to bargain on June 16, 1965, converted the
strike into an unfair labor practice, we shall order
the Respondent to offer to Francis Cullen, Charles
Papp, Roy Parket, Edwin Borden, Richard
Karstaedt, and Jovan Obradovich immediate and full
reinstatement to their former or substantially
equivalent positions, without prejudice to their
seniority and other rights and privileges, and make
them whole for any loss of earnings they may have
suffered by reason of the discrimination against
them by payment to each of them of a sum of money
that each would normally have earned as wages for
the period beginning 5 days after September 16,
Wis., of his intention to return to work
Dated at Milwaukee, Wis , this 4th day of Sept. 1965
Name of Employee
' Those employees who had been replaced were Fred Rieck
and Edward H Brunn, replaced on March 19; William Melved,
R.A Yueuger, and Vincent Guimond, replaced on March 22, and
Richard A Beyer replaced on April 29
s Francis Cullen, Charles Papp, Roy Parket , Edwin Borden,
Richard Karstaedt, and Jovan Obradovich
S & M MANUFACTURING CO.
1965, the date of receipt of their offer to return to
work, until the date of reemployment, less their net
earnings during such period, in the manner
prescribed in F. W. Woolworth Company, 90 NLRB
289, and with interest in the manner set forth in Isis
Plumbing & Heating Co., 138 NLRB 716.
Further, we shall order that the Respondent, upon
application, offer the remaining strikers who were
not replaced prior to June 16, 1965, reinstatement to
their former or substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges, dismissing, if necessary, any
employees hired on or after June 16, 1965. We shall
also order that Respondent make whole those
strikers who are entitled to reinstatement for any
loss of pay they may suffer by reason of the
Respondent's refusal, if any, to reinstate them, upon
request, by payment to each of them of a sum of
money equal to that which he normally would have
earned as wages during the period beginning 5 days
after the date on which he applies for reinstatement
and terminating on the date of the Respondent's
offer of reinstatement, such loss to be computed in
the manner set forth in F. W. Woolworth Company,
supra. Interest at the rate of 6 percent per annum
shall be added to the backpay to be computed in the
manner set forth in Isis Plumbing & Heating Co.,
supra.
CONCLUSIONS OF LAW
1. S & M Manufacturing Company at all times
material herein has been an employer within the
meaning of Section 2(2) of the Act.
2. Miscellaneous & Allied Division of Union,
Local 80-A, Distillery, Rectifying, Wine and Allied
Workers International Union of America, CLC,
AFL-CIO, at all times material herein has been a
labor organization within the meaning of Section 2(5)
of the Act.
3. All production and maintenance employees of
the Company employed at its Milwaukee,
Wisconsin, plant, excluding superintendents,
assistant superintendents , general foremen,
nonworking foremen, clerical employees, draftsmen,
technical engineers, guards, and supervisors as
defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. By interfering with, restraining, and coercing
its employees in the exercise of rights guaranteed
them by Section 7 of the Act, as found above,
Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
5. By refusing to bargain in good faith with the
Union, the Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(5) and
(1) of the Act.
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
665
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
S & M Manufacturing Company, Milwaukee,
Wisconsin, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Telling employees that they will not enter into a
collective-bargaining agreement with Miscellaneous
& Allied Division of Union, Local 80-A, Distillery,
Rectifying, Wine and Allied Workers International
Union of America, CLC, AFL-CIO, or any other
union.
(b) Refusing to bargain in good faith with said
Union as the exclusive bargaining representative of
its employees in the above-described unit.
(c) In any like or related manner, interfering with
the efforts of the exclusive representative of its
employees to bargain collectively in their behalf.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the
Union as the exclusive bargaining representative of
its employees in the appropriate unit described
above, with respect to wages, rates of pay, hours of
employment, or other conditions of employment, and
if an understanding is reached, embody such
understanding in a signed agreement.
(b) Offer Francis Cullen, Charles Papp, Roy
Parket, Edwin Borden, Richard Karstaedt, and
Jovan Obradovich immediate and full reinstatement
to their former or substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges.
(c) Make whole Francis Cullen, Charles Papp,
Roy Parket, Edwin Borden, Richard Karstaedt, and
Jovan Obradovich for any loss of pay they may have
suffered, in the manner set forth in the section of
this Decision entitled "The Remedy."
(d) Upon application, offer to the Respondent's
striking employees reinstatement to their former or
substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, and
make them whole for any loss of pay , in the manner
set forth in the section of this Decision entitled "The
Remedy."
(e) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(f) Notify the aforementioned strikers if presently
serving in the Armed Forces of the United States of
their right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(g) Post at its plant at Milwaukee, Wisconsin,
copies of the attached notice marked "Appendix."s
Copies of said notice, to be furnished by the
Regional Director for Region 30, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by it to
insure that said notices are not altered, defaced, or
covered by any other material.
(h) Notify the Regional Director for Region 30, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
MEMBER BROWN, dissenting:
I dissent from my colleagues' rejection of the Trial
Examiner's recomme6_da1i6ri that the complaint's
8(a)(5) allegation be dismissed. The validity of that
allegation turns on the Union's representative status
on June 16, 1965, when, it is found, Respondent
refused to bargain in good faith. But, considering
Respondent's hirings to that date, including
replacements for strikers, and the withdrawal of
strikers from the Union, I am not satisfied that the
General Counsel has sustained his burden of proving
majority status as of the critical date. This
prerequisite for a finding lacking, I am compelled to
conclude that Respondent did not refuse to bargain
in violation of the Act. Nor do I believe that the
circumstances of this case, including the absence of
any allegation or finding of an 8(a)(3) violation,
warrant the reinstatement-with-backpay order
entered by my colleagues.
8 In 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 tell our employees that we will
not sign a collective-bargaining contract with
Miscellaneous & Allied Division of Union, Local
80-A, Distillery, Rectifying, Wine and Allied
Workers International Union of America, CLC,
AFL-CIO, or any other union.
WE WILL NOT refuse to bargain collectively
with Miscellaneous & Allied Division of Union,
Local 80-A, Distillery, Rectifying, Wine and
Allied Workers International Union of America,
CLC, AFL-CIO, as the exclusive representative
of our employees.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce our employees
in the exercise of the right to self-organization,
to form , join, or assist the aforesaid Union or
any other labor organization , to bargain
collectively through representatives of their
own choosing , and to engage in other concerted
activities for the purpose of collective
bargaining or other mutual aid or protection,
and to refrain from any and all such activities,
except to the extent that such right may be
affected by an agreement requiring
membership in a labor organization as a
condition of employment , as authorized by the
Act.
WE WILL bargain collectively in good faith
with Miscellaneous & Allied Division of Union,
Local 80-A, Distillery , Rectifying , Wine and
Allied Workers International Union of America,
CLC, AFL-CIO, as the exclusive representative
of our employees in the appropriate unit
described below, with respect to wages, rates of
pay, hours of employment, or other conditions
of employment , and if an agreement is reached,
we will incorporate such agreement in a signed
agreement. The bargaining unit is:
All production and maintenance employees
of the S & M Manufacturing Company,
Milwaukee , Wisconsin , plant , excluding
superin_t_endents , assistant superintendents,
general foremen , nonworking foremen,
clerical employees , draftsmen, technical
engineers, guards, and supervisors, as
defined in the Act.
WE WILL offer to the employees named below
immediate and full reinstatement to their
former or substantially equivalent positions
without prejudice to any seniority or other rights
and privileges previously enjoyed, and make
them whole for any loss of pay suffered as a
result of the discrimination.
Francis Cullen Edwin Borden
Charles Papp Richard Karstaedt
Roy Parket Jovan Obradovich
WE WILL offer to our striking employees,
upon their application, reinstatement to their
former or substantially equivalent positions
without prejudice to their seniority or other
rights and privileges, dismissing, if necessary,
any employees hired on or after June 16, 1965,
to replace these employees, and we will make
such employee whole for any loss of pay
suffered by him as a result of our failure to
reinstate him within 5 days after his application.
S & M MANUFACTURING CO.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of the
aforesaid Union or any other labor organization.
S& M MANUFACTURING
COMPANY
(Employer)
Dated By
(Representative) (Title)
Note: We will notify the above-mentioned
striking 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 Service 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.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, Room 230, 744 North Fourth Street,
Milwaukee, Wisconsin 53203, Telephone 272-3866.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE E. DIXON, Trial Examiner : This proceeding,
brought under Section 10(b) of the National Labor
Relations Act, as amended (61 Stat . 136), herein called the
Act, was heard at Milwaukee , Wisconsin , October 26
through 29 , 1965. The complaint dated August 27, 1965,
was based upon charges filed July 2 and August 17, 1965,
and was issued by the Regional Director for Region 30
(Milwaukee , Wisconsin ) on behalf of the General Counsel
of the National Labor Relations Board (herein called the
General Counsel and the Board ). It alleged (as amended at
the hearing) that Respondent had engaged in and was
engaging in unfair labor practices by various specified
conduct including its failure to bargain in good faith with
Miscellaneous & Allied Division of Union, Local 80-A,
Distillery , Rectifying , Wine and Allied International Union
of America , CLC, AFL-CIO (herein called the Union) as
the collective - bargaining agent of its employees in an
appropriate unit.
In its duly filed answer Respondent denied the
commission of any unfair labor practices.
Upon the entire record and from my observation of the
witnesses , I make the following:
FINDINGS OF FACT
1. RESPONDENT ' S BUSINESS
Respondent is a Wisconsin corporation engaged in the
manufacture of metal products with its office and plant
' Although Respondent denied the allegation of the complaint,
admissions elsewhere in its answer clearly negate such denial
2 The appropriate unit was comprised of all production and
maintenance employees of the Respondent, excluding
667
located in Milwaukee , Wisconsin . During the calendar
year preceding the issuance of the complaint , which is a
representative period, Respondent purchased and
received goods and materials from points outside the State
of Wisconsin valued in excess of $50,000 . At all times
material herein Respondent has been an "employer," as
defined in Section 2(2) of the Act, engaged in "commerce"
and in operations "affecting commerce" as defined in
Section 2 (6) and (7) of the Act.
II. THE LABOR ORGANIZATION
At all times material herein the Union has been a labor
organization within the meaning of Section 2(5) of the Act. I
III. THE UNFAIR LABOR PRACTICES
A. The Alleged Refusal to Bargain
For well over a decade Respondent had recognized and
entered into yearly contracts with an independent union,
known as S & M Company Union, Inc., representing an
appropriate unit of its employees.' In 1963 or early in 1964,
the Union retained Attorney Milton S. Padway to
represent it. In May 1964 on Padway's advice the
Union's name was changed to "Metal & Steel Fabricators
No. 16." Shortly after this the Union notified the Company
of its desire to open negotiations for a new contract, the
current one expiring on August 31. Apparently at this
point the Company retained the law firm of Roemer and
Ropella to represent it and notified the Union that the
negotiations would have to await the return of Ropella
from military reserve duty some 2 weeks away.
Negotiations began in August. At the outset the Union
submitted to the Company various provisions which it
wanted in a contract, but did not submit a complete
contract proposal as such. Except for a subsequent
document from the Union involving research on pension
plans and one contract proposal in August, all of the other
submissions by the Union were counterproposals or
counteroffers.
In the first two negotiating meetings , Ropella appeared
on behalf of the Company. According to Padway's
undenied and credited testimony, he had an
understanding with Ropella that any agreement reached
would be retroactive to September 1. Subsequently, he
received a letter from Ropella withdrawing this
commitment unless agreement was reached by
September 30. After meeting twice with the union
bargaining committee, Ropella turned over the task of
representing Respondent to an associate, Attorney R. Dirk
Van Horne. According to Van Horne's testimony he was
told by Ropella on taking over that as far as he was
concerned there had "been no agreement on any specific
point" and was instructed to "take a fresh look at it."
According to Van Horne whatever may have gone on in the
first two meetings meant nothing.
Negotiations continued to the latter part of the year
when an impasse was reached and when the Union called
in Federal Mediator Sanders. On January 17, the Union
held a membership meeting in which two votes were
taken-(1) a vote of 37 to 6 to strike and (2) a vote of 41 to 2
to affiliate with the Charging Party, Local 80-A of the
Distillery Workers.
superintendents , assistant superintendents , general foremen,
nonworking foremen, clerical employees , draftsmen , technical
engineers, guards, and supervisors as defined in the Act
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On January 20, the employees went out on strike 100
percent strong; of 47 men who walked out only 2 or 3 did
not belong to the Union. Negotiations continued during the
strike and the Company continued to operate with
replacements. In a March 8 meeting the Company and the
Union had come to an agreement on a $25 retroactive
payment to each striker. According to Van Horne the offer
had been made on the basis of the mediator's assurance
"that the Union would then sign the contract if the
company would agree to this item of retroactive pay." No
contract resulted, however, and the strike continued.
Thereafter, in mid-April it appeared that a settlement
had finally been reached. After a negotiating meeting on
Good Friday morning, and a series of telephone calls
between the parties the following day, Padway informed
Van Horne that the members would accept the contract as
explained to them, and Van Horne agreed to put it in
written form. Pursuant to these preliminaries the
picketing ceased and two or three strikers went back to
work the following Monday.
It was not until the end of that week (on April 24) that
the Union received the complete written contract as
promised by Van Horne. According to Padway the
contract as submitted did not reflect what had been agreed
to. "Certain significant changes" had been made and
provisions included which had not been discussed. For
example, super seniority was provided for employees who
had crossed the picket line. The "no lock-out clause" was
missing. A clause was included whereby the Union agreed
that current employees would "not be displaced or
replaced by returning strikers." A provision also reserved
to the Company "the right to deny reemployment to any
employee whose action ... indicated a disregard and
disrespect for company property." The Company further
reserved to itself the right for 90 days "to adjust the work
schedules and the shifts on a reasonable basis without
regard to seniority." Also pending charges by both sides
before the Board were to be withdrawn. Padway also
testified about conveying to Van Horne in one of their
many telephone conversations that the Union "insisted on
. $25 retroactivity pay to each employee," and that Van
Horne had indicated that although he "agreed with it ...
he still had to go to the company" about it.
The membership rejected the contract as submitted by
Respondent. It appears that the contract was rejected
essentially for two reasons: These involved the provision
regarding reinstatement of the strikers and the absence of
any provision for retroactive pay. Padway's position on the
witness stand was that agreement had been orally arrived
at on all phases of the contract. Van Horne, while testifying
that he too thought an accord had been reached, denied
that any accord had been reached on the question of
retroactive pay.'; At any rate no contract was signed and
the strike thereupon was resumed.
In mid-June another attempt to reach agreement was
made. About this matter, Van Horne testified as follows:
Well, the next major contact, that has been referred to
many times, occurred on the 16th of June. The first
actual beginnings to this thing, I think occurred
somewhere around the week-about a week
preceding that time, and again I had heard from
Commissioner Sanders and he had asked if the
Company still wanted to find the solution to the strike.
The sum and substance of these conversations, was
that the Union would agree to the April contract if the
Company would present it.
Now, I ask Commissioner Sanders if the Union had
requested this meeting, and he said, "no."
I then asked him if he had assurance that the Union
was going to arrive ready and willing to sign the
contract. He assured me on several occasions,
because in every conversation I had with Mr.
Sanders, this is one of the questions I asked him. He
assured me that the Union had expressed a desire to
sign the contract that had been rejected in April if the
Company would bring it with them.
I specifically asked Commissioner Sanders whether
the Union was expecting a proposal. He informed me,
"No." I told him then that I was very glad because the
Company had no intention at all of making a proposal,
and we had felt that throughout 9 months of
negotiating, that the only proposal that had come in
from the Union was the August proposal, and since
then we had proceeded to spend a minimum of 2
hours per meeting, while Mr. Padway sat down with
the committee and achieved the counter-proposal, I
told him this was extremely costly to the Company
and as far as I was concerned it was a total waste of
time having to sit there and look at Harry Malin.
Mr. Sanders assured me that the Union was ready and
willing to sign that contract if the Company would
bring it. He also asked me whether he could have it
ready by the 16th.
The contract was prepared by Van Horne, but was not
ready until noon of the 16th when it was delivered to
Padway's office. Padway was out to lunch at the time,
however, and did not see it until he returned at about
1 o'clock. To what extent he examined the document at
that time does not appear, but it is clear that members of
the union negotiating committee did not see it before they
appeared at the conciliator's office for the scheduled
meeting that afternoon between the parties. The contract
itself was essentially the same contract that had been
offered by the Company in April. There were, however,
some minor differences between the two. Moreover, the
current contract contained the following provision:
This contract has been prepared at the request of the
Federal Mediation and Conciliation Service. It is
subject to approval and acceptance on June 16, 1965,
only. Its terms and provisions shall be considered
rejected beyond that date.
What happened when the parties convened appears from
Van Horne's testimony as follows:
About 3:30 or so we went in and one of the questions I
asked initially was whether we were all ready to sign
the contract. It was at that point that Mr. Padway, I
believe, indicated that he had not had much time to
look at it. I told him (that) in my opinion he had 2
months to look at it because this was almost word for
word the identical contract that they had turned down
in April. At that point, one of the other committee
I In view of Padway's testimony that Van Horne "still had to go
to the company" about the retroactive pay I am inclined to credit
Van Horne here.
S & M MANUFACTURING CO.
members spoke up and said that they hadn't a chance
to look at it either because it had come on such short
notice.
I then asked him, (Union President Cullen) did he
have authority to sign the contract, and he assured
me, "Oh, yes, yes I have got the authority." At that
point, I believe Commissioner Sanders ushered Mr.
Malm and I out of the room and proceeded to spend
some time talking to the Union. He then came back
and talked with us and we went back in there and
discussed a few points that the Union felt about things
that should be changed in the contract.
Notwithstanding the foregoing testimony Van Horne
further testified that he had announced at this meeting
that "this contract was not a proposal" and that
Respondent "Had no intention at all of discussing it." The
contract, which was received in evidence, contained
several handwritten notations. As to some of these
notations Van Horne testified that he had no knowledge or
could recall no agreement thereon. On some, however, he
acknowledged that agreement had been reached.
It appears from Van Horne's further testimony that just
before the meeting broke up Respondent asked whether
the Union was ready to sign the contract. On this basis
Van Horne admitted on the stand that he assumed that
agreement had been reached on the hand written
notations. Van Horne also testified that in a subsequent
telephone call about the meeting Padway "made a
comment referring to the changes that were agreed to ...
supposedly had been agreed to." Moreover, in a letter to
the Union dated July 1 Van Horne stated that the
Company had "carefully analyzed your proposal of
June 21, 1965, wherein the Union adopted as its own the
company proposal of April 24, 1965."
According to the direct testimony of Harry Malm,
Respondent's president, the union representatives at this
meeting were sure they could sign the contract but flatly
refused to do so. According to Malm, he had no
recollection of Union President Cullen saying that the
contract had to be ratified by the membership nor did he
recall Attorney Padway so indicating. On cross-
examination Malm admitted that agreement had been
reached on the terms of the contract that day and that
Cullen had said that he would sign but wanted ratification
by the membership, before doing so. It further appears
from Malm's testimony that he was fully aware from past
practice that this was the customary and necessary
procedure.
On the basis of the foregoing evidence there is no
question in my mind and I find that regardless how
Respondent chooses to characterize the contract it
submitted to the Union on June 16, it was a contract
proposal. I further find that regardless what Respondent's
intent was as to negotiating or not negotiating on that
occasion, the terms of its proposal were discussed and all
agreed upon at that meeting.
When the union officials demurred to signing the
contract without the ratification of the membership they
asked the company representatives what would happen if
' Van Horne testified without denial and credibly that in this
conversation, he told Padway that the contract the Company had
submitted "was not subject to any changes, and that if the Umor
669
the Union brought the contract back at a later date . To this
Van Horne replied ". . . I don't know what is going to
happen. We are here to sign this contract today ... I don't
know what the union is going to do. I have no control over
what you people do ... I can 't give you any assurances at
all as to what is going to happen if you decide to bring this
contract back ." In this connection the notes that Van
Horne took during this meeting revealed the following
comment : "Union will vote. If they do agree to it the
Company will consider signing it. Never refused to
bargain."
In a union meeting on Sunday, June 20 , the membership
voted to accept the contract . On the following day (after
failure to reach him sooner), Padway called Van Horne on
the telephone to inform him of the Union 's action .4 On the
following day, June 22 , confirming the telephone
conversation , Padway wrote Van Horne in part as follows:
The Union, Local 80-A, Miscellaneous and
Allied Division , BRW & AW, AFL-CIO, has been
directed as a result of a vote taken at the meeting of
the members on Sunday , June 20 , 1965, to accept the
agreement with the S & M manufacturing company as
discussed and presented on June 16 , 1965, at the
office of the United States Department of Federal
Mediation. The proper officials of the Union have
afixed their signatures to the copy of the contract that
I have in my possession , and we await word from you
as to the company's position.
On the same day, Van Horne had written to Padway (their
letters apparently crossing in the mail) as follows:
In response to your telephone call of Monday,
June 21 , 1965, . you indicated that the Union
membership had indorsed as their own, the contract
that the Company proposed for June 16. Even though
by its own terms, the June 16 contract had expired
that date.
The Company feels that they must have some time to
analyze the Union proposal. I am confident that we
will be able to provide an answer no later than
June 30.
On June 24, Van Horne wrote Padway:
In response to your letter dated June 22, I would
appreciate your providing me with a copy of the exact'
wording that exists in the contract, or any change has
been made from the wording that was effective
June 16, 1965. I am sure that you would prefer there
be no later misinterpretations as to what was or what
was not an agreement between the parties. In as
much as the company's submitted contract also
expired on June 16, I feel before I would authorize
their signing anything they would have to see the
actual document. As I indicated in my letter of
June 22, the Company will need some time to
determine their action.
If the contract with changes is acceptable, I am sure
we would all wish to get together for an actual signing
of the contract as opposed to the Union signing one
copy and the Company signing a different copy.
had a new proposal . . . that was an entirely different matter."
Padway thereupon indicated, "that as far as he was concerned
this could be considered a proposal then "
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On June 25, Padway replied to Van Horne, referring to his
request for "the exact wording that exists in the contract
resulting from negotiations and agreed upon on June 16,
1965, before Commissioner Sanders" and setting forth the
language requested. At no point after receipt of this letter
did Respondent make any claim that the foregoing
language brought up new matter not agreed to in that
meeting.
On July 1, Van Horne again wrote the Union as follows:
The S & M Manufacturing Company has carefully
analyzed your proposal of June 21, 1965, wherein the
Union adopted as its own the Company proposal of
April 24, 1965. As you know, the April 24 contract was
prepared for signing on June 16 (per page 25a) at the
request of Commissioner Sanders of the Federal
Mediation and Conciliation Service. It expired
without signature on that date.
The Company at this time feels that present
conditions do not warrant acceptance of this proposal.
It is therefore deemed rejected.
In his testimony Harry Malm stated that when he was
informed by Van Horne that the contract had been ratified
by and was acceptable to the Union, he told Van Horne
that the Company was "no longer interested in signing that
contract." He also testified that he believed that he had
asked Van Horne at this time whether the Company could
legally sign the contract because of an investigation
Respondent claims to have made on June 17 or 18 which
led it to believe the Union no longer represented a majority
of the employees, a matter which will be examined in some
detail below.
In early August, according to Van Horne's testimony,
Conciliator Sanders asked him if he thought "submitting
another proposal would achieve anything." Van Horne
said that he "doubted it, but at that point [was] willing to
try just about anything in order to effectuate a solution to
the strike.", Accordingly, he submitted another contract
proposal to the Union by mail on or about August 8. This
offer had an automatic time limitation of about a week. No
reply to the Company's offer was made by the Union.
About mid-September the Union abandoned the strike and
gave written notice to the Company on behalf of the 11
remaining strikers of their "intention to return to work."
Additional Findings and Conclusions Regarding the
Refusal to Bargain
The complaint as issued, alleged that Respondent
rased to bargain in good faith "at all times material and
more part icularly on June 16,__1965_,_ by submitting a
proposal with a 1-day acceptance limitation ; on June 21
by refusing to sign the agreement it submitted and agreed
to on June 16; and on or about August 11, when it
questioned the Union's majority status and withdrew
recognition of the Union.
At the beginning of the hearing, the General Counsel
moved to amend the complaint by adding two incidents of
, It is clear that long before this date , the Union had lost the
strike and that any effect it was having on Respondent's
operations was no more than minimal . As of June 16, 1965, after
the strike had been in progress 6 months, Respondent's work
force had increased almost 40 percent over what it was when the
strike started
6 There was no objection to the amendment
r In this connection , the General Counsel relies on: (1) the
8(a)(1) conduct alleged to have occurred in the latter part
of March 1965.6 In his brief, the General Counsel argues
that from the beginning, the Respondent "engaged in
negotiations with no intention of reaching agreement on a
contract that any self-respecting union would settle for,"
and that "the negotiations were designed to undermine the
Union, and by prolonging the bargaining sessions over a
long period of time, sap its strength to a point where it
would capitulate to a contract offering very little
additional benefits to the employees, over and above what
they were already receiving."7
Notwithstanding this position by the General Counsel,
he makes the following contention in his brief:
It is the added contention of the General Counsel that
Respondent's 8(a)(1) and (5) conduct converted the
economic strike of January 20 to an unfair labor
practice strike, and that all employees who were not
replaced as of April 1 (the approximate time of the
8(a)(1) statements) are entitled to reinstatement
immediately in instances where they have
unequivocally asked to be reemployed and as to
others who have not made such a request, upon their
unequivocal requests for reemployment.
While the General Counsel's position as to when the
refusal to bargain commenced is not entirely clear to me
either from his brief or from his pleadings, I take it from
the above contention that his claim is that the strike was
an economic strike until April 1. With such assumption it
would follow, of course, that the General Counsel
concedes that up to that point, Respondent's bargaining
was conducted in good faith and not in violation of Section
8(a)(5) of the Act. I find such to be the fact and any
contention by the General Counsel to the contrary, I
believe has not been proved by a preponderance of the
evidence.
It is apparent that not withstanding the implications in
the General Counsel's brief as to the alleged overall bad-
faith bargaining here, the keystone of his contention in this
respect involved the contract submitted by Respondent for
signing on June 16 and the surrounding circumstances
thereof. I have already noted my conclusions as to
Respondent's claims that the contract was not an offer or
proposal and that there was no negotiation on it. As an
additional defense to the charges here, the Respondent
would have me believe that the reason it would not sign the
contract when requested by the Union on June 21 was
because between June 16 and June 21 it had developed a
genuine doubt that the Union any longer represented a
majority of the employees.
As to this matter, Van Horne testified that on the Friday
after the Union refused to sign the June 16 contract he
went to the company premises where he "sat around and
commiserated with" Malm, presumably about the failure
to get the Union to sign the contract. Then, in a moment of
"unlawyer-like ... pique" he decided to check his own
and the company files to see "whether the Union did or did
not represent a majority of the employees." On the basis of
this investigation he and Malm developed "a strong
initial delay in starting negotiations by reason of Ropella's military
service, (2) the implication that any progress made prior to Van
Horne's taking over from Ropella was set aside (there was,
however, no evidence revealing that any progress whatsoever had
been made ), and (3 ) Van Horne 's testimony that Respondent's
negotiators "never do agree to one clause at a time and later on
picking up other ones We must agree to a complete agreement."
S & M MANUFACTURING CO.
suspicion that the Union did not represent a majority of the
employees."
Malm's testimony about this on direct examination was
as follows: On June 17 or 18 Van Horne came to the plant
and "wanted to see if ... the Union actually represented"
the employees. They thereupon checked payroll records,
termination letters, and replacements," and developed the
feeling that the Union did not represent the employees. In
addition to this, according to Malm in his contacts working
with the employees "there was an indication ... that they
weren't interested in that Union representing them."
On cross-examination Malm testified that when Van
Horne had informed him on June 21 that the Union had
accepted the contract and wanted the Company to sign, he
asked Van Horne (because of their majority "findings") if
the Company could " legally sign the contract." When
asked what his reply had been to the Union's letter of
June 22 seeking the Company's signature on the contract,
he answered:
My response to the letter was as we had indicated
before: We checked our records to see whether they
truly represented, and-that did not have any
response as far as this contract was concerned any
longer.
As for the five exhibits (R 7, 8, 9, 10, and 11) referred to
671
clear that their claim that as of June 18 or 19 they
entertained a good-faith doubt that the Union represented
a majority of the employees is not to be credited. Based on
Van Horne's testimony alone I have no hesitancy in
reaching this conclusion. At no time in the many
opportunities that were presented between the parties did
he raise this question." While Van Horne may have been
young and inexperienced enough to have engaged in what
he described as "unlawyer-like ... pique" there is no
question in my mind that he was experienced enough to
have raised the basic question of Respondent's obligation
to bargain with the Union vis-a-vis the matter of majority
representation had he realized (as he claimed he did) that
there was such a question. One only has to read Malm's
testimony on this point (or to have heard him testify) to
preclude the slightest suggestion of doubt in this
connection.
Notwithstanding the foregoing finding and its obvious
corollary that Respondent was not acting in good faith by
refusing to sign the contract that had been agreed upon in
the June 16 negotiations, it does not follow under the
circumstances here that Respondent thereby violated
Section 8(a)(5) of the Act.
One of the essential elements in establishing such a
violation is proof that at all material times10 a majority of
above, Malm testified that he had requested their the employees in the bargaining unit is represented by the
preparation "at about the same time" and that they were Union c aiming recognition and seeking a contract. Here
" "all prepared and obtained at about the same time. When
he was asked when that time was he replied that he had
"asked them to get this information ... about June 16 or
18." He was then asked if it was his testimony that
Respondent's Exhibits 7 through 11 were prepared about
June 17 or 18 and he replied, "The information on there,
yes." When pressed for a more specific answer he
equivocated with inquiry of his own and finally answered,
"Well, I don't know if it was a duplicate that I looked at, or
what it was at the time and after the time that it was. If it
was this specific piece of paper, I am not sure." Twice
thereafter when asked specifically if Respondent's 7
through 11 had been prepared on June 17 or 18, Malin sat
mute. When Malm was then asked by the Trial Examiner
when those documents had been prepared he asked that
the question be repeated; then he testified that he did not
know. After considerably more probing, Malm finally
admitted that he had received the exhibits in question
within the previous week.
On the basis of the foregoing testimony of Van Horne
and Malm considered in the context of what transpired
between the Union and the Company from June 16 on, it is
3 Respondent introduced into evidence through Malm five
exhibits listing (a) the names and dates of employees replaced
during the strike (R 7), (b) the names of employees who returned
to work during the strike (R 8), (c) the names and dates of
employees voluntarily terminating their employment with
Respondent (R 9), (d) the number of strikers remaining (R 10), and
(e) the names of employees as of June 16, 1965, and the dates they
were hired . These exhibits , according to Malm, were prepared at
his request by the company accountant , Ollie Desotell , and are
undated
9 In letters from Van Horne to the Regional Office dated July 13
and August 6 about the negotiations, he made no mention of a
doubt regarding the Union 's majority Indeed , in the August 6
letter he gave two reasons why the Company had refused to sign
the contract when requested to do so by the Union on June 21,
neither of which involved any question as to the Union's
representative status
10 Where recognition of a union as bargaining agent has been
accorded for years without certification , the current contract can
the General Counsel has failed to prove this essential
element and the evidence shows that at no time material
did the Union represent a majority.
Thus, the evidence shows'' that as of March 23, 1965,
15 striking union members had been replaced by
Respondent.12 As of this same date 10 union members had
voluntarily resigned from the Company. In addition, four
other strikers had returned to work by this date and had
written notifying the Union of their withdrawal from it.13
Since the union membership at the time the strike started
did not exceed 47, it is clear that a loss of 29 as of March 22
would leave it without a majority unless it could make up
the loss by replacements-a matter which I will discuss in
a moment.
If the General Counsel assumes that the 10 resignations
referred to above should not be counted as loss to the
Union for purposes of computing the majority, I do not
agree with him. The general rule is that simply because
the striker takes another job it does not eliminate him as a
striking employee nor does it remove an employer's
obligation to reinstate him when the strike is over if he has
not in the meantime been replaced. However, when a
be assumed to have been lawful ; i.e , that when entered into the
Union represented a majority. This majority is presumed to
continue at least until the end of the contract term unless there is
evidence to rebut the majority. Shamrock Dairy, Inc., 119 NLRB
998 Here , of course , the contract had expired and, as will be
shown, the evidence clearly rebuts the majority
11 The evidence upon which I rely is the Resp Exhs. 7 through
9, all of which were received without objection but reserving the
right to the General Counsel to check them against the company
records. Since no question has been raised about them I assume
that they accurately reflect those records
12 According to the exhibit from which this figure is taken 16
strikers had been replaced as of this date, but 2 were supposedly
not union members. However , one of the two, Ray Jessmon, had
signed the Union 's application for certification with the Charging
Union and as pointed out by the General Counsel presumably was
a union member
13 By the end of April four other employees had returned to
work and had also withdrawn from the Union
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
striker specifically indicates to the employer that he is
terminating the employment relationship14 I believe that
he thereby eliminates any obligation the employer may
have to him as a striker and also eliminates himself as a
member of the bargaining unit.
As previously indicated, Respondent continued to
operate during the strike with replacements and by mid-
June had 65 people working-an increase of about 40
percent over the complement of employees at the time the
strike started. The General Counsel argues that when the
strike began since "the Union represented 100 percent of
the 47 employees, and thereafter received withdrawals
from but 8 members, it is clear that the Union represented
at all times material herein, no less than 83 percent of the
work force."
In support of this contention the General Counsel relies
on Laystrom Manufacturing Co., 151 NLRB 144, which
holds that in a situation involving employee turnover "new
employees will be presumed to support a union in the
same ratio as those whom they have replaced." The
General Counsel's reliance on that case is misplaced.
There the union won a Board-conducted election in March
1962, by a vote of 17 to 13. A 2-year contract was entered
into running until June 2, 1964. On March 16, 1964, the
union requested bargaining for a new contract. The
company refused to recognize the union at that point
claiming a good-faith doubt that the union any longer
represented a majority. The basis of this claim was that
since the election 16 employees had terminated their
employment and 8 had been newly hired. No strike was
involved. It was in this context that the Board held that
"employee turnover standing alone, does not provide a
reasonable basis for believing that the Union had lost its
majority since the prior election" and reiterated its long-
held rule "that new employees will be presumed to
support a union in the same ratio as those whom they have
replaced."
Clearly the principle voiced in Laystrom does not apply
to the facts at hand. Here, we have people crossing a
picket line to take jobs formerly held by the picketers. One
could hardly presume that these people support the Union
or would join it. Indeed, the presumption would seem to be
just the opposite. It follows therefore that it was the
responsibility of the General Counsel as part of his burden
of proof to establish the majority status of the Union to
show if he could that the employees hired by Respondent
during the strike supported the Union. This he did not do.
Accordingly, I find that as of March 23, the Union no
longer represented a majority of the employees and that at
that point the Respondent no longer had an obligation to
recognize the Union or bargain collectively with it.
B. The Alleged Interference, Restraint, and Coercion
Michael Kescenovitz was called as a witness by the
General Counsel and testified as to two conversations with
'" The record is not particularly clear about these terminations
The exhibit listing the terminations is simply entitled "S and M
Manufacturing Company Employees Voluntary Terminations "
The exhibit was identified by Malm as containing a list of "the
employees who requested and signed voluntary termination
letters " I have no doubt, particularly in the absence of any
contrary contention by the General Counsel, that these
terminations completely severed the employment relationship
There was testimony by several of the eight who left the strike and
went back to work, that they did so because they were unable to
secure interim employment elsewhere unless they severed their
connection with Respondent and made commitments to stay
agents or supervisors of Respondent, alleged by means of
an amendment to the complaint at the hearing to have
been coercive within the meaning of Section 8(a)(1) of the
Act. The first of these two conversations took place with
Foreman Frank Papp on a Saturday afternoon late in
March or early in April, on the picket line as employees
were coming out from work. According to Kescenovitz,
Papp stopped to talk to him about "hunting and so forth."
Then Papp said, "You know, Mike, when Duke went back
to work15 you guys lost the strike." Papp went on to say,
"Why don't you guys give up? Why don't you come back
to work? We are not going to sign a contract with you
people."
The second conversation was later that same afternoon
with David Malm, who was employed by Respondent as a
saleman and who was the son of Everett Malm,
Respondent's secretary-treasurer and who was also
himself a member of Respondent's board of directors. The
conversation started after an exchange between the two
regarding Malm's tearing down union picket signs. At
Malm's invitation, Kescenovitz got into Malm's car, where
for an hour or so, they discussed the strike situation.
About this conversation, Kescenovitz testified as follows:
. It was a private conversation between him and I.
We talked and he said that in the beginning of the
strike they were going-they should have given us the
union contract, but as of now they could not give us a
union contract and will not give us the union contract
because of the fact that if we came back to work
under the union contract, the people that went across
our picket line to work for them at that present time
that their jobs would be vacant and we would fill them
up again, and if we ever would decide to go on
strike-the people who signed the union
contract-that they could not get any more people to
come back and work for them, which I said, "If I were
in your place, I agree with you."
There was a lot of conversation back and forth, and he
told me how the company was started. I always liked
working in S & M and that sort of conversation, and
that was the main thing. He told me to come back to
work, and I said, "I can't come back to work because
I owe these men I am working with something. I can't
break the picket line," and he told me I don't owe
them anything.
In his testimony, Foreman Papp admitted having a
conversation with Kescenovitz and testified that he had
asked him "why don't you come in and work?"
Kescenovitz replied that he would not work with scabs.
Papp then said, "Mike, we are working with those guys
and we got no trouble there, and we got some other guys
coming in and they all work with them. There is no hard
feelings." When Kescenovitz apparently reinterated his
permanently in the new employment they were seeking In a letter
to the Regional Office from Van Horne dated August 24 the
following comment was made
10 employees who had gone on strike had voluntarily
signed termination letters These letters were required by
their subsequent employers before they were hired S & M
felt that a man's livelihood and family took precedence over
strike problems and therefore gave the employees
termination letters so they could work elsewhere
is Duke was the nickname of Francis Cullen, the union
president The reference to his going back to work was about his
taking a lob with another employer during the course of the strike
S & M MANUFACTURING CO.
refusal to work with the people then working, Papp
continued, "Mike, we are never going to sign a contract
that they are going to get those guys in there because those
guys won't save your job. You guys walked out of your job
and those guys saved your job and they got very nice boys
working in there right now and I don't think we are going
to get rid of those guys." From his further direct
testimony, elicited essentially on leading questions '16 it
would appear that what he told Kescenovitz (and to some
other employees also by his own admissions) was that
Respondent would never sign a contract which would get
rid of the people currently working in the plant. On cross-
examination, he testified that Van Horne when talking to
him about testifying had told him that "he was accused of
things, something I did not say." He was then asked if Van
Horne had not suggested that what he actually had told
Kescenovitz was that Respondent would never sign a
contract that would require the replacement of strikers
and his answer was, "Mr. Van Horne told me that." On
redirect examination, Papp denied that Van Horne had
told him anything along this line and testified that Van
Horne had told him to tell the truth.
David Malm admitted having had a conversation with
Kescenovitz about which he testified as follows:
We got around to talking about the Union. At this time
they had affiliated it with Local 80-A, and I asked him
about the Union, and I said, "where did you dig up
this Union anyway? I mean I was under the
impression that it had nothing to do with the
fabrication business." And he said, "Well, that was
Mr. Padway's idea, and he told us in order to make
the strike effective we had to obtain a Teamster's
(ban) and Trucking (ban) on the Company and this
was the first Union we could get into to have our
charter approved." And I said, "Okay." I asked him if
that was the only reason, and he said, "yes," that was
the only reason he knew of at the time. He didn't
know of any others. We continued to talk about a few
other things. I would say the questions came
up-well, he asked me a few questions. I don't
remember exactly what he did say, but they were in
reference to if the Company really wanted to settle a
strike, and I said, "Yes they do. We are only
concerned with one thing and that is getting
production out, and we really didn't care about
holding any grudges or anything against anybody." He
said he heard that the Company didn't want to sign
with that particular union.
I said, well, there was no truth to that. I said I thought
the Company would not sign a contract-any type of
contract-with a union that demanded a union shop
or closed shop. I don't know the correct legal
terminology, but it would be where the employees
would have to join the Union to work at S & M. I said
these were my own thoughts.
He asked me why, and he didn't quite agree with me
at the time, and I told him, "Well, since the strike we
have hired a considerable number of people, and in
my opinion it wouldn't be fair to these people to have
to be forced to join a union in order to continue at S &
M when they joined when there was no union."
673
Well, we discussed it back and forth and by the time
we left I am sure,-at least he told me he agreed with
me on that point . Oh, we talked about a few other
personal things , and we parted friends.
Malm specifically denied flatly saying that the Company
would never sign a contract with Local 80 -A. On cross-
examination he reiterated that he had told Kescenovitz
that the Company would not sign the contract where
employees would be forced to join the Union in order to
work for the Company . He also testified on cross-
examination that when the Union was independent they
had had this kind of a contract clause.
Of the foregoing , I credit Kescenovitz and find that
Papp made the flat statement that Respondent would not
enter into a contract with the Union and that the statement
was coercive within the meaning of Section 8(a)(1) of the
Act. Stafford Trucking, Inc., 150 NLRB 1036. As to
whether or not Malm's statements to Kescenovitz were
also violative of the Act I deem it unnecessary to decide
since I would recommend an 8(a)(1) order here on Papp's
comment alone. Normally in such a circumstance an order
would not be recommended on the grounds that the
incident is isolated and in effect de minimus. Here,
however, notwithstanding that no violation of Section
8(a)(5) of the Act occurred as a result of Respondent's
conduct , its bad faith in its later dealings with the Union is
so apparent that I believe an 8(a)(1) order is fully justified.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations
described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow
thereof.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) of the Act, I
shall recommend that it cease and desist therefrom and
take certain affirmative action designed to effectuate the
policies of the Act.
Upon the basis of the foregoing findings of fact, and
upon the entire records in the case, I make the following:
CONCLUSIONS OF LAW
1. S & M Manufacturing Company at all times material
herein has been an employer within the meaning of
Section 2(2) of the Act.
2. Miscellaneous & Allied Division of Union, Local
80-A, Distillery , Rectifying , Wine and Allied Workers
International Union of America , CLC, AFL-CIO, at all
times material herein has been a labor organization within
the meaning of Section 2(5) of the Act.
3. By interfering with , restraining , and coercing its
employees in the exercise of rights guaranteed them by
Section 7 of the Act, as found above, Respondent has
1e From his testimony it was apparent that Papp was of some
foreign extraction and his command of the English language was
not the best.
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged in unfair labor practices within the meaning of 5. Respondent has not, as alleged in the complaint,
Section 8(a)(1) of the Act. engaged in unfair labor practices within the meaning of
4. The aforesaid unfair labor practices are unfair labor Section 8(a)(5) of the Act.
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.)