Siskin Steel and Supply Co., Inc.

National Labor Relations Board - Board Decisions

Sep 12, 1966

160 N.L.R.B. 1038 (N.L.R.B. 1966)

1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
NOTICE TO ALL MEMBERS OF LOCAL 803, ALLIED ALUMINUM AND INDUSTRIAL UNION
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
We WILL NOT cause or attempt to cause Zoe Chemical Co., Inc., to discrimi-
nate against employees in violation of Section 8(a) (3) of the Act.
WE WILL NOT in any like or related manner restrain or coerce employees of
Zoe Chemical Co., Inc., in the exercise of the rights guaranteed in Section 7 of
the Act.
WE WILL jointly and severally with the above-named Company make whole
Margaret Weber, Esther Hay, Florence Gagan, Mary Di Guiseppe, Madeline
Gioletti, Margaret Pisarra, Elizabeth Enzman, Helen Sujkowski, Rose De
Giacomo, Julia Struffolino, Mary Fink, and Ana Bustos for any loss of pay
suffered by them by reason of the discrimination against them.
LOCAL 803, ALLIED ALUMINUM AND INDUSTRIAL UNION,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If members have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 16 Court
Street, Fourth Floor, Brooklyn, New York 11201, Telephone 596-5386.
Siskin Steel and Supply Co., Inc. and United Steelworkers of
America, AFL-CIO. Case 10-C-4-6035. September 1l, 1966
DECISION AND ORDER
On November 26, 1967, Trial Examiner Lowell Goerlich issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. Thereafter, the General Counsel and Respondent filed
exceptions to the Trial Examiner's Decision and supporting briefs,
and Respondent also filed a reply brief to the General Counsel's
exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown andZagoria].
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 entire
record in this case. including the Trial Examiner's Decision, the
exceptions, and the briefs, and hereby adopts the findings, conclu-
160 NLRB No. 78
SISKIN STEEL AND SUPPLY Co. 1039
sions, and recommendations of the Trial Examiner only insofar as
they are consistent with the Decision herein.'
1. The complaint alleged and the Trial Examiner concluded that
Respondent since January 12, 1965, refused to bargain in good faith
with the Union, in violation of Section 8(a) (5) of the Act. We do
not believe, however, that the record establishes that the Respondent
unlawfully refused to bargain prior to May 18, 1965.
As set forth in detail in the Trial Examiner's Decision, the Union
was certified as the exclusive bargaining representative of Respond-
ent's employees on July 6, 1964. Thereafter, the parties bargained
collectively and, on October 9, executed a contract effective retro-
actively from July 6, 1961, until July 6, 1965. The contract contained
a wage-reopening clause which the Union could invoke by giving
notice 60 days prior to March 16, 1965, and under which the Union
was free to strike after March 16, 1965, if no agreement on wages had
been reached. The Union notified the Respondent by letter dated Jan-
uary 12, 1965, of its desire to open contract negotiations on wages.
The parties commenced negotiations on February 8, when the Union
requested a 25-cent-an-hour wage increase. Respondent refused to
grant any wage increase, and on March 17, the Union struck. On
May 5, the Union mailed to Respondent notice of termination of the
original contract, and requested negotiation of a new contract. On
May 18, the Union presented Respondent with a proposed new con-
tract, which included a provision for a 25-cent wage increase, where-
upon the Respondent expressed doubt that the Union represented a
majority of its working employees, then composed entirely of non-
strikers and striker replacements, and refused to bargain until this
question was settled. In all, the parties had by that time held six
collective-bargaining sessions, the Union demanding a 25-cent wage
increase and the Respondent refusing any increase.
The Trial Examiner rested his conclusion that Respondent did not
bargain in good faith prior to May 18, 1965, on a number of factors
including an evaluation of the provisions of both the 1964 contract
and, the 1965 proposals; Respondent's allegedly inconsistent bargain-
ing positions; alleged failure to provide negotiators with authority to
bind the Respondent; failure to meet at appropriate times; and cer-
tain statements made prior to the 1964 election and the 1965 strike.
We conclude, however, that certain of these findings are not sup-
ported by the record, and that those that are so supported do not
establish= this alleged violation.
Initially, we find little or no support in the record for the, Trial
Examiner's expressed "serious doubt" that employees received any
1 The Respondent 's request for oral argument is hereby denied ' as, in our opinion, the
record, exceptions, and briefs adequately present the issues and the positions of the pasties.
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
economic gains in the 1964 contract. This finding is based on testi-
mony of a single employee, White, and there is nothing in the record
to establish that his situation is representative of the other employees
affected by the 1964 contract which, as the record shows, provided
for increased benefits in areas other than those about which White
testified. In any event, since it is clear that the Respondent's position
in both the 1964 and the 1965 negotiations was not so predictably
unacceptable as on its face to demonstrate the Respondent's bad
faith,2 the Trial Examiner's consideration of the substantive provi-
sions of the 1964 contract and his speculations as to concessions and
counter-offers which, in his view, the Respondent could or should
have made in the 1965 ne(rotiations, were contrary to the Supreme
Court's admonition that "the Board may not, either directly or indi-
rectly, compel concessions or otherwise sit in judgment upon the sub-
stantive terms of collective bargaining agreements."
Nor do we consider bad faith to have been established by the
reasons advanced by the Respondent for its position on the economic
issues between the parties during negotiations, or by the fact that it
advanced different reasons for its position in 1964 from those
advanced in 1965.4 In this latter -connection we note that external
circumstances bearing on the negotiations were different in 1965 from
those present in 1964.
The signatures of both Garrison and Mose Siskin, Respondent's
president and vice president, were required for the execution of a
final agreement, and these officials took their customary consecutive
2-week vacations while the 1965 negotiations were in progress. The
record shows, nevertheless, that Respondent was represented at all
meetings by its counsel, Spears, the manager of Respondent' s steel
division, Pregulman, and one of the Siskins, and there was frequent
telephone contact between the Siskins during their respective vaca-
tions.5 Moreover, the Respondent did not delay or postpone any meet-
ings; nor did it ever refuse to meet. Indeed, on March 16, the night
before the strike, when Garrison Siskin returned from vacation,
Respondent's counsel offered to bring Mose Siskin to a meeting, but
his offer was rejected by the union representative. We therefore can-
not agree that Respondent failed to provide representatives with
authority to negotiate or failed to meet at reasonable times.
a See N.L.R.B. v. Reed & Prince Manufacturing Company, 205 F 2d 131, 139 (C.A. 1),
cert. denied 346 U.S. 887.
a N.L.R.B. v. American National Insurance Co., 343 U S. 395, 404
* Cf. Empire Terminal Warehouse Company, 151 NLRB 1359, affd 355 F 2d 842
(C.A.D.C.).
See Rice Lake Creamery Company, 131 NLRB 1270, enfd 302 F.2d 908 (C A.D.C ),
cert. denied 371 U.S. 827; Midwestern Instruments , Inc, 133 NLRB 1132 Cf Joe Wheeler
Electric Membership Corporation, 153 NLRB 1291, and Han-Dee Spring & Mfg. Co., Inc,
132 NLRB 1542.
SISKIN STEEL AND SUPPLY CO. 1041
In these circumstances , antiunion statements made by management
more than 6 months before the filing of the charges herein, prior to
the Union 's certification and prior to the successful negotiation of the
1964 contract ," and Mose Siskin 's isolated remarks in March 1965 pre-
dicting a strike, do not establish that Respondent was determined to
provoke a strike in order to destroy the Union's status as bargaining
representative of the employees:
For the reasons hereinabove set forth, we find, contrary to the Trial
Examiner , that the record does not establish by a preponderance of
the evidence that Respondent unlawfully refused to bargain between
January 12 and May 18, 1965, or that the strike which commenced
on Mar6h '17 was caused by Respondent 's unfair labor practices.
2. As indicated above, on May 18, 1965 , Respondent 's counsel ques-
tioned the Union's 'contmuing majority status and flatly ' refu'sed to
.bargain further until this question was settled. This position was
reaffirmed by Respondent 's counsel in a letter to the Union dated
May 25, and no further meetings were held . The certification year
expiredJuly 6, 1965 . The Trial Examiner concluded that Respondent
unlawfully refused to bargain on May 18, 1965 , because this was dur-
ing the certification year. The Trial Examiner also concluded that
even if the strike of March 17, 1965 , commenced as an economic strike,
it would = have been converted to an 'unfair labor practice strike on
May 18. We agree with the Trial Examiner in this respect and find
that, by refusing to bargain on and after May 18, the Respondent
violated Section 8 (a) (5) and (1) of the Act and that the strike
became an unfair labor practice strike on that date.'
REMEDY
Havulg,fouild that Respondent has unlawfully refused to bargain
with the-certified Union since May 18, 1965, we find that the usual
remedy provided by the Board will effectuate the policies of the Act
in the circumstances of this case. ,
s Our dissenting colleague 's reference to the preelection comments of respondent officials
and his conclusion that the 1965 negotiations proved the Respondent 's intention to carry
out those "predisclosed intentions" to get rid of the Union , in our view give inadequate
consideration to the intervening 1964 negotiations . As a result of these negotiations, Re-
spondent did agree to increased benefits , granted a 5-cent wage increase , albeit subject to
an early reopener , and did execute a full contract with the Union. There are thus other
elements in the "totality of Respondent 's conduct " that tend to contravene the unlawful
inferences our colleague would draw from the preelection and precontract statements
in 1964.
We are not warranted , of course, in finding bad faith from the inception of the re-
opened wage negotiations in 1965 on the sole basis of the Respondent 's persistent refusal
of a wage concession.
7 Cf. Ray Brooks̀ v. N.L.R .B., 348 U S 96 ; Reliance Clay Products Company, 115 NLRB
1736; Capitol Aviation, Inc., 152 NLRB 745 Although the United States Court of Appeals
for the Seventh Circuit refused to enforce the Board's decision in Capitol Aviation, Inc.,
355 F .2d 875, we respectfully adhere to the position stated in the Board ' s Decision in
that case.
257-551-67-vol. 160-67
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As the unfair labor practices committed by the Respondent on
May 18, _1965, converted thQ strike into an unfair labor practice strike
on that date, Respondent will be ordered to reinstate , upon applica-
tion, all strikers who had not been permanently replaced before
May 18, 1965, and make them whole for any loss of earnings they
may suffer as a result of the Respondent's failure, if any, to reinstate
them upon such application. Backpay, if any, shall be computed with
6 percent interest per annum thereon, in accord with the Board's cus-
tomary practice. F. W. Woolworth Company, 90 NLRB 289, and Isis
Pluiabing & Heating Co., 138 NLRB 716.
[The Board adopted the Trial Examiner's Recommended Order
with the following modifications :
[1. Substitute a period for the comma and delete the remainder of
the sentence after the words "such activities" in paragraph 1('b).
[2. Substitute the following for paragraph 2(b) :
[" (b) Upon application, offer reinstatement to all strikers who were
not permanently replaced before May 18, 1965, and make them whole
for any loss of pay suffered as a result of any failure to reinstate
them, as provided in the section of the Board's Decision entitled
`The Remedy.'"
[3. Delete the final sentence and substitute the following:
["IT IS FURTHER ORDERED that the complaint herein be, and it hereby
is, dismissed insofar as it alleges that the Respondent engaged in
unfair labor practices other than as found herein by the Board."
[4. Delete the second and third paragraphs of the attached notice
and substitute the following :
[WE WILL, upon application, reinstate all strikers who were not
permanently replaced before May 18, 1965, and make them whole
for any loss of pay suffered as a result of any failure to reinstate
them.
[WE WILL NOT interfere with, restrain , or, coerce our employees
in the exercise of their right to self-organization, to form labor
organizations, to join or assist the above-named Union, or any
other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such
activities.]
MEMBER BROWN, dissenting, in part :
Unlike my colleagues, I would affirm the Trial. Examiner's finding
that Respondent's refusal to bargain dates from the, commencement
of wage reopener negotiations on January 12, 1965, and his resultant
SISKIN STEEL AND SUPPLY CO. 1043
conclusion that the ensuing walkout of March 17, 1965 , was an unfair
labor practice strike from its inception . In my opinion , the substan-
tiality of the Trial Examiner 's finding of subjective bad faith is to be
reviewed in accordance with well-established principles defining the
Board 's role in evaluating the "state of mind " of a party to collective
bargaining . Experience has shown that bad-faith allegations which,
as here, place in issue the motivation of an employer in the course of
negotiations are rarely susceptible to determination on the basis of
direct evidence . Therefore the "ultimate issue [of] whether the Com-
pany conducted its bargaining negotiations in good faith involves a
finding of motive or state of mind which can only be inferred from
circumstantial evidence ." 8 Furthermore , the existence or nonexistence
of substantial record support for the inference drawn by the Trial
Examiner herein is to be ascertained by considering the various
indicia of bad faith in combination , rather than in a fashion limiting
the scope 'of inquiry to whether or not such indicia independently dis-
close an unlawful bargaining objective . As ably expressed by Justice
Frankfurter :
A determination , of good faith or want of good faith normally
can rest only on an inference based upon more or less persuasive
manifestations of another 's state of mind . The previous relations
of the parties , antecedent events explaining behavior at the bar-
-gaining table, and the course of negotiations constitute the raw
facts" for reaching such a determination 9
With these principles in mind, I am satisfied that the Trial Exam-
iner's inference of overall bad faith is supported by substantial evi-
dence. Briefly, the record shows the Respondent , prior to certification
of the Union, made various statements to an employee plainly reveal-
ing a predisposition to get "rid " of the Union . At that time , Respond-
ent also indicated that it would not give the Union "anything," that
there would be a strike , and that employees who supported the strike
would be replaced. In 1965, during the critical reopener negotiations,
Respondent, in a manner consistent with its,predisclosed intentions,
refused to make a single concession on' the sole issue open for dis-
cussion, but gave shifting reasons for its flat denial of any increase,
while conceding that it was not pleading "inability to pay." 10
Respondent 's contrived effort to undermine the Union culminated
with its breaking off of reopener negotiations and its unlawful, with-
drawal of recognition within the certification year. Broadly stated,
8 N.L.R.B v. Reed & Prince Manufacturing Company, 205 F.2d 131, 139-140 (C A. 1),
cert. denied 346 U.S. 887
N.L.R B. v. Truitt Mfg. Co, 351 U.S. 149, 155 (concurring opinion ) N.L.R.B. v. Local
833, U.A.W. ( Kohler Co .), 300 F.2d 699, 706 (C.A.D.C.).
10 Cf. Boulevard Storage & Moving Co, Inc., 152 NLRB 539, 541.
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these. are the "raw facts" relied upon by the Trial .Examiner in con'-
eluding that Respoilcient, from January 12, 1965, engaged in a course
of conduct "tailored to effect a riddance of the Union." In my
opinion, they adequately portray an overall design to act upon a pre-
disclosed intention of defeating a newly certified bargaining agent, by
taking a position at the bargaining table calculated to forestall agree-
ment, and precipitate a strike thereby enabling .replacement of union
adherents, in order to establish a seemingly legitimate ground for a
subsequent withdrawal of recognition.h1
In the face of such a record, to reverse the Trial Examiner's bad-
faith finding is to disregard the totality of Respondent's conduct,
including "[t]he previous relations of the parties, antecedent events
explaining' behavior at the bargaining table, and the course of nego-
tiations." In this regard, I note particularly my colleagues' unex-
plained finding, that.,Respondent's refusal to agree to any wage
increase during the i96,5. wage negotiations was "not so predictably
unacceptable as on its face to demonstrate the Respond'ent's bad
faith." While I might agree that, if considered in isolation, Respond-
ent's bargaining position did not "on its face" constitute bad faith,
that factor is nevertheless indicative of bad faith when placed in the
total context. For, both the unacceptable nature of Respondent's posi-
tion and the fact that the parties were fully mindful that a strike
would result therefrom is convincingly demonstrated by a history of
negotiations 12 showing that (1) the Union, in October 1964, agreed
to the interim agreement, which contained the reopener provisions,
when Respondent advised that more time was necessary to consider a
wage increase; (2) a strike was averted in 1964 because of the antic-
ipated reopening for wage negotiations in early 1965; (3) the Union
-promptly notified Respondent in January 1965 of its intention to
reopen the contract with respect to the unresolved, wage issue; and
(4) Respondent repeatedly indicated during said negotiations that
its refusal to agree to any, increase was not founded upon inability
to pay.
In sum, I would affirm the Trial Examiner, who, in what I regard
as a complete and well-written Decision, reviewed the record accu-
3" See e.g. Call, Burnup, and Sims, Inc., 159 NLRB 1661 ; J. A. Terteling & Sons, Inc.
d/b/a Western Equipment Company, 149 NLRB 248, enfd . 357 F 2d 661 ( C A. 9) ; Rhodes-
Holland Chevrolet Co., 146 NLRB 1304.
'a Although negotiations between Respondent and the Union did; on October 9, 1964,
culminate in an agreement with a scheduled expiration date of July 6, 1965 , this factor
in no way detracts from the unlawful pattern of conduct found by the Trial Examiner
herein For , the execution of that contract , in view of its terms, limited duration , and in-
clusion of reopening provisions-while enabling Respondent to continue production in the
face of the nationwide steel strike threatened for May 1965-was obviously a stop gap
accord, did not by any means resolve the basic dispute between the parties, and was hardly
inconsistent with the conclusion , apparent from the entire record, that Respondent's con-
duct during the 1965 negotiations was designed to 'undermine the Union as statutory
bargaining representative.
SISKIN STEEL AND SUPPLY CO. 1045
rately, and. arrived , at his conclusions in a manner consistent with
historical guidelines for determining whether a party to collective
bargaining has assumed a course of conduct ". .. to conceal a purpose-
ful strategy to make bargaining futile or fail," 13 a conclusion which,
for the reasons fully stated in the Trial Examiner's Decision, is
amply warranted on the instant record.
Is N.L.R B. v. Herman Sausage Company, Inc., 275 F.2d 229, 232 (C.A 5).
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
On charges .filed by the United Steel Workers of America, AFL-CIO, herein
called the Unioii, 'the General Counsel of the National Labor Relations Board on
behalf of the Board by the Regional Director for Region 10, on July 2, 1965,
issued a complaint and notice of hearing against the Siskin Steel and Supply Co.,
Inc., herein referred to as the Respondent . The complaint alleged that the Respond-
ent had engaged and was engaging in unfair -labor practices affecting commerce
within the meaning of Section 8(a) (1) and ( 5)' of the National Labor Relations
Act, as amended , herein called the Act. The Respondent filed timely answer to the
complaint denying that it had engaged in or was engaging in the unfair labor practices
as alleged. '
.
The principal issue which is before Trial Examiner Lowell Goerlich is whether
the Respondent engaged in a course of conduct which failed to measure up to the
good -faith bargaining requirements of Section 8(a)(1) and (5) of the Act. Certain
independent 8(a)(1) violations are also involved.
On the issues framed by the complaint and answer and pursuant to notice this
case was heard by me in Chattanooga , Tennessee , on September 8 and 9, 1965. At
the hearing the General Counsel, the Respondent , and the Charging Party were rep-
resented by counsel . Each party was afforded full opportunity to present evidence
relevant to the issues , call, examine and cross -examine witnesses , to present oral
argument , to file proposed findings and conclusions , and to file briefs . Briefs
were submitted by the General Counsel, the Respondent , and the Charging Party, all
of which have been duly considered by me.
On the record as a whole and from my observation of the witnesses , I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT COMPANY
The Respondent , Siskin Steel and Supply Co., Inc., is now, and has been at all
times material herein , a Tennessee corporation with an office and place of business
located at Chattanooga , Tennessee , where it is engaged in the sale and distribution
of steel products. During the 12 months immediately preceding the filing of the com-
plaint herein , the Respondent sold and shipped steel products valued in excess of
$50,000 directly from its Chattanooga , Tennessee , plant to customers located outside
the State of Tennessee . The Respondent admits, and I find, that the Respondent is
now and has been at all times material herein , an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Steel Workers of America , AFL-CIO, is a labor organization within the
meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Union was certified on July 6, 1964 , as bargaining representative of Respond-
ent's employees in the following appropriate unit:
All employees of Respondent 's scrap processing and warehouse steel operations
of Chattanooga , Tennessee , including the maid , and all truckdrivers , but excluding
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all office clerical employees , professional employees , inside and outside salesmen,
Siskin Memorial Foundation employees , guards, and supervisors , as defined in the
Act.
Thereafter , a contract was executed on October 9, 1964 , for a term beginning
retroactively on July 6, 1964 , and ending on July 6 , 1965 , The contract contained a
wage-reopening clause which could be brought , into effect by notice 60 days before
March 16 , 1965 , and in the absence of agreement , the Union was free to strike after
March 16, 1965.
The Respondent , Siskin Steel and Supply Co., Inc., is operated by two-brothers,
Garrison Siskin , age 62 , and Mose Si s kin , age 65 . Garrison occupies the office of
president ; Mose is the vice president and treasurer . Their father preceded them in
the operation of the business for whom the brothers commenced working at an early
age. Garrison said he had "worked there since [he] was 6 years old." Each brother
spends long hours in the active management and operation of the business . Garrison
testified , "I never leave when Mose is out of town and he never leaves when I'm out
of town ." Garrison said , "We work harder than anybody down there."
The Respondent 's operations are divided into two divisions , a scrap division and
a new steel division . Garrison , an expert in the handling of new steel, exercises
overall supervision of the new steel division. Garrison 's son-in-law , Mervin Pregul-
man, is the manager of the new steel division .' Mose directs the scrap division to
which are assigned 60 to 65 percent of the Respondent 's employees?
The 'Respondent maintains a normal new steel inventory of around $700,000 which
is turned over in sales every 3 months. Average sales of new steel exceed $55,000 a
week. While the dollar volume of business in the new steel division exceeds that of
the scrap division , the scrap division is the more profitable because , as Garrison
explained ,, "You have less money invested and . . With our company we have
the best, most modern equipment to prepare scrap ." Garrison continued , ". . . we
prepare our scrap quicker , better and, of course , cheaper than any other company in
our line of business . We are at least 10 years ahead of everybody else in this particu-
lar field of operation of scrap." Garrison pointed out that by using its "modern
equipment" it could accomplish as much with two men as its competitors could
accomplish with seven.
The Respondent 's principal scrap customer is the Republic Steel Corporation
located at Gadsden , Alabama, with whom the Respondent has dealt for 38 years.
Gadsden is about 90 miles from Chattanooga and "the river freight rates from Chat-
tanooga are cheaper than any other section of the United States." Republic Steel
Corporation purchases 80 percent of the Respondent 's scrap. In turn , the Respond-
ent is one of Republic 's largest purchasers of new steel and rates "among the first 20
companies in the United States to buy" from it. Garrison said the association with
Republic Steel Corporation is "more like a family arrangement ." Among the Re-
spondent 's new steel customers is included the Tennessee Valley Authority.
The brothers are indubitably successful businessmen who manifest an observable
sense of pride in their achievements . Garrison testified , "there is nowhere else in the
United States where people do these things and if we hadn 't worked like we did, as
hard as we did in '64 , we would have lost at least a half million dollars in '64."
Until the representation election of June 25, 1964 , the Respondent's business had
not been organized . Shortly prior to the election , according to the testimony of
Tolliver White, who had been employed by the Respondent for 15 years, Garrison
Siskin told him that there would be no union in the plant. Tolliver testified, ". . . he
[Garrison Siskin ] went on to tell me that I was a good hand; that I was liked all
right and I kinda had it made. Then, he asked me if I had any insurance on my
house and I said `Yes, sir,' and he wanted to know what kind. I told him fire and
wind and he told me not to burn the house down and he repeated that three or four
times, `Not to burn the house down .' He went ahead and he said , `Now, in case they
do vote this thing in , do you know who the committee is going to be?' I told him,
`No.' He said, `Well, would it be John Watley or Hubert Jackson?', and I don't
remember any others ; but, he said , `Now they don't have any sense to start with
and he wouldn 't talk to them .' I was a smart fellow and he would talk to me-he
wouldn't talk to them to start with. Said ,- he didn 't intend to give us anything , he just
called Bill Clay in and he could say `No' as good as they could . . . so, -he went on
1 Pregulman , testified that the two brothers "make all important decisions" for the
Respondent
2 When business requires , employees are shifted between the two divisions.
'SISKIN STEEL AND SUPPLY CO. ' 1047
and he said, `Now, if you do get it in here, they'd tell me how to get rid of it; he
said that they would want us to go on strike; said they'd have police protection, both
county, city and state, if needed; and, that they would let the people work that
wanted to-they'd write us a letter telling us we could come back if we wished in, a
certain number of days-if we didn't, they'd hire new people in our place and that
would be it as far as they was concerned.'
"Said, later on, maybe they'd have another election and that would be it . . . he
also told me-,,,'. . : the Union could not make you pay overtime or any bonuses' and
he said, `If the Union was voted in, that would definitely be cut out.'
"Then, he told me he was going somewhere down in Georgia to try to help a man-
somebody was in trouble. He didn't know who he was; but, he was going to try to
help him and if we voted the Union in on him, he'd not be able to do things like
that
"Then, he told me again, not to burn my house down." Garrison denied White's
testimony.
This testimony of White is credited for the following reasons: (1) White appeared
as a forthright, unsophisticated, honest witness worthy of belief, whereas Garrison
Siskin was sophisticated, supererogatory, and overanxious to be impressive; (2) Sis-
kin denied any conversation with White at all on the subject which seems improb-
able in the light of White's 15 years' employment with the Respondent, and Pregul-
man's admission that he had discussed the Union with White, whose feelings for or
against the Union were considered persuasive to other employees.
White testified that Pregulman had discussed the Union with him shortly prior to
the election. During the discussion Pregulman said that if White "would stay with
them, that they'd keep [him] on their side, they could win the election; that which-
ever way- [he] went would' be the way the outcome would go." Pregulman told
White that "he was getting" a little more power all along; wouldn't be too long before
he would be taking over. He said that when that happened, [White] wouldn't have
anything to worry about; he would give [him] a boss' job, if [he would] just stay
on their side." Pregulman also indicated that "the bonuses and the overtime [would]
be cut out," if the Union won. Pregulman said, "Mr. Mose and Mr. Garrison
wouldn't let anybody tell them what to do 3 and neither would he when he took
over."
Pregulman admitted the conversation with White and when asked what he said "in
substance" replied, ". . . we have been through two elections and right from the
very start, you've [Attorney Spears] come out and told us what we can and can't,
should and shouldn't do and that we have legal rights just like the other side does
and, you said exactly the same thing to the people when you talked to them."
"And, so always, when I talk to any of these men, I try to stay within the frame-
work of what you [Attorney Spears] told us . . I tried to convince [White] that
joining the Union or being a member of the Union or having a Union at Siskin Steel
wasn't to his advantage, nor was it to ours. And, that employees had a good place
to work and that there was no advantage in it; no advantage in it as far as they
were concerned."
Pregulman's admissions together with the demeanor of White and Pregulman con-
vince me that White should be credited. The testimony of Pregulman establishes that
prior to the. election the Respondent opposed the Union and campaigned against it.
After the certification negotiations were commenced, the parties came to terms,
with the exception of wages. The Respondent's best offer was a 5-cent per hour wage
increase which "the Union simply said was not enough." According to William D.
Spears, the attorney who negotiated for the Respondents, the Siskins took the posi-
tion that "that was all they could or would offer." The Union was told that the
Christmas bonus and some overtime would be eliminated 4 as had been predicted by
Pregulman.
Rather than "to have a strike" the Union proposed a wage reopener which was
accepted by the Respondent.5 It provided that "the Union shall have a right, 60 days
3 Pregulman testified, "I think everybody in this room knows who runs Siskin Steel and
Supply Company."
'White testified without contradiction that these cuts cost him "about 70 cents an
hour " His last bonus had been "about $180 " He had received a bonus for 15 years.
5 Union Representative Crawford testified, without contradiction, ". . . the Company
told us they had some problems ; one particular problem being the need for new warehouse
space ; that as soon as they settled that problem, they would be in a better position to',
give more wage increases and the March 17, `wage opener' was agreed to."
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prior to March 16, 1965, to give notice in writing that they desire to reopen the con-
tract as to wages only. If during this period, no agreement is reached, either party
may take such steps as allowed to him under the law."
The contract executed on October 9, 1964, was to take effect on July 6, 1964, and
continue until July 6, 1965.6
On January 12, 1965, the Union notified the Employer that it desired "to open
contract negotiations on wages." Thereafter, negotiations commenced on February 8,
1965, and continued until May 18, 1965. Since May 18, 1965, there have been no
negotiation meetings of any kind. On March 17, the Union engaged in a, strike.
B. Negotiations
The bargaining meetings held in response to the Union 's request for the wage
reopener followed about the same pattern and as a whole are undisputed as to the
material facts. Present at all the meetings were Attorney Spears, Pregulman, and at
least one of the Siskin brothers for the Respondent, and William H. Crawford, a
steel worker's representative, and a union committee for the Union.
At the first meeting on February 8, 1965, the Union advised the Respondent that
it sought a 25-cent-an-hour, .wage increase because the employees had suffered a
reduction in overtime and.the loss of their Christmas bonus. At the meeting it was
disclosed that Mose Siskin and Garrison Siskin intended to take successive 21/2-week
vacations ending on or about March,16, 1965, with the return of Garrison. Repre-
sentatives of the Union stated that they thought it "highly unusual for the responsible
members of management to be taking off on extended vacations during the 60-day
period before the contract expired." 7 Union Representative Crawford was concerned
because he had been told that to reach an agreement on a contract the presence of
both Mose and Garrison Siskin was necessary.
The Respondent took the Union's proposal under consideration. The next negoti-
ation meeting was set for February 16, 1965.
According to Spears, between the February 8 meeting and the February 16 meet-
ing, he conferred with the Siskin brothers, and in view of the lower wages paid by
the Respondent's competitors and the threat of a national steel strike,8 the Respond-
ent "came to the conclusion that at the time it was not in the best interests of the
Company to make a wage offer."
At the February 16 meeting, the Respondent advised the Union that it would
grant no wage increases, a position which it held throughout the negotiations. Two
reasons for this position were cited by the Respondent which were summarized
in the record by Garrison Siskin: "One reason: We didn't know what basis steel
would do; and two was: We knew that based on the survey we had made of our
competing companies in the same line of business that we were in, that we were
paying from 25 to 40 cents an hour more than they were." 8 Siskin said, "We wanted
to wait until May 1." (Emphasis supplied.) The Union's response to the first reason,
according to Garrison, was, "We were just working on you now; we'll get to them
next ." As to the second reason, the Union replied that it was bargaining with a local
company and the whole steel industry was not involved. Union Representative Craw-
ford reminded the Company, "that one of the reasons the contract was settled back
in October was because the Company stated they were in trouble with warehouse
space and rented space; that they would be able to consider wages in a better light
come March." A discussion ensued as to whether or not the Respondent's com-
petitors should be considered as scrap dealers or new steel dealers. Crawford said
that the Respondent's "wages did not compare in the new steel warehouses as
their competitors and the ones they work jointly with as far as warehousing steel
for the city," and cited several new steel dealers in Chattanooga who paid higher
6 The contract at the insistence of the Respondent contained : "This contract contains
the sole agreement between the parties, and no past practice not included in this contract
is binding on either party " A Christmas bonus was not paid in 1964
7The record discloses that at least one of the Siskins was always available for
negotiations.
6In the Respondent's brief to me it is stated, "It was common knowledge that the con-
tracts in the major steel industry were to expire May 1, and a strike was likely to occur
on that date."
At another point in Siskin's testimony, lie said, "The only reason we didn't make a
counterproposal was we didn't know what our situation would be if there was a steel
strike."
SISKIN STEEL AND SUPPLY CO. 1049
wages. The Respondent insisted that wages paid to scrap dealers should be used
as the comparable standard. On the other hand, the Union claimed that the com-'
parison should be made. with the new steel dealers and those employers who
dealt both in new steel and scrap because the Respondent's employees were inter-
changeable and "because these men did work in the new steel as well," Mose Sis-
kin who was on vacation did not attend the meeting.
At the next meeting held on February 22, nothing was accomplished. Garrison
advised the Union that it had the Respondent's position and "there wasn't any
sense discussing it." Mose Siskin was absent.
A meeting arranged for. March 14 did not occur because of the illness of
Crawford.
Garrison Siskin returned from his vacation on March 16, 1965, around 10.30
a.m. Crawford called Attorney Spears"on March 16, some time around 6 o'clock,
after learning that •Garrison Siskin had returned. According to, Crawford, he
advised Spears that "he had a meeting with the local in a few minutes," and that
if there were not a "monetary offer, there would be a strike the next day." Spears
suggested,a meeting in the morning. However, Crawford said, "In my opinion, it
will be too late." Spears' response was, "Well, I'm sorry. I have done everything I
can; but I am sorry." During the conversation, Spears offered to get Mose Siskin
for a meeting if Crawford thought it was imperative. According to Crawford, he
responded that since no contract could be concluded by the Company unless both
brothers were present, "there was no sense in meeting with, Mr. Mose alone."
Mose and,Garrison attended a charity meeting on the evening of March 16, 1965.
The Union, on the night of March 16, 1965, voted for a strike to commence at
12:0,1 ,a.m., March 17, 1965, the first day it could legally engage in a strike under
the contract.
Garrison Siskin explained that the reason the Respondent refused to grant a
wage increase was "we had lost a lot of money for 2 straight years, '61 and '62, I
think it was in part of '63. and, we were just scared to death, literally. If we did
anything at all to increase our'overhead before May 1, if there was or wasn't going
to be a steel strike, then we would just be hurting ourselves economically." (Empha-
sis supplied.) In anticipation of the steel strike, the Respondent had increased
its new steel inventory which normally averaged $700,000 to $1,800,000 in June
1965. To build this inventory the Respondent had set up credit through a loan of
$1,800 ,000 for which the brothers had pledged their insurance. Garrison Siskin testi-
fied that had the steel strike occurred, the Respondent would have been unable to
dispose of its scrap. Thus, substantial money would have been tied up in an
increased scrap inventory. Moreover, during the period of a steel strike, the price
of scrap usually falls by reason of the surplus which is accumulated. He further
stated that if the strike had lasted 45 days, the Respondent would have exhausted
its new steel supply. Thus, it was necessary to build up a large new steel supply
in order that it could continue its business operations during a period when no new
steel was available.
According to Spears "about 31 men reported for work the morning after the
strike." On that date, March 17, 1965, there were 85 10 employees in the unit.
Thirty-six employees were on checkoff.
On March 18, Respondent directed a letter to each employee, advising them that
"If you do not return to work Monday morning, March 22, Company will take
steps to secure other employees to fill your, jobs."
About a week or two before the strike, Mose Siskin, according to employee Jim
Stone, came to him and said there was going to be a strike. Stone also testified
that the day before the strike Mose Siskin said the same thing to him.li
After the strike commenced, meetings were held on March 22 and 29, April 5,
and May 18 in the presence of a Federal mediator.
At the March 22 meeting the Respondent stated, "That they were not in a
position of granting any wage increases whatsoever." However, in response to a
question asked by a conciliator, the Respondent said that it was not relying on "the
inability to pay." At this meeting Crawford "proposed to the Company at that time
that if the Company would grant a substantial wage increase and made a few other
changes in 'the contract, that the Union was ready to sign a contract for a period
10 A wage increase of 25 cents an hour would have cost the Respondent $850 for a 40-
hour week; an increase of 5 cents an hour would have cost the Respondent $170 for a
40-hour week.
11 Stone's testimony is credited in this respect
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of a year and doing away with the contract termination date of July 6th." The
Company indicated that they would consider the proposal but "they did not think
that they would take it." There was no discussion as to what changes the Union
had in mind. I
At the March 29 meeting , the Company again stated its position that it would
grant no wage increase . Inability to pay was - again denied . As to the Union's sug-
gestion that it extend the contract and negotiate as suggested at the March 22
meeting, the Respondent advised the Union that is was "turning the offer down."
Nothing was accomplished at the April 5 meeting.
On May 5 a notice of termination of the contract was mailed to the'.Employer.
At the final meeting on May 18, 1965, the Union presented the Company ''-with a
contractual proposal , section by section . After listening to the proposal ', Spears
advised the Union that the Respondent did not feel that the Union represented a
majority of the employees and that the Respondent was "refusing to bargain -until
the question was settled ," whereupon Crawford stated that he would have to "turn
it over to [his] legal advisor."
On May 25, after the charges had been filed in the instant case, Attorney Spears
addressed a letter to Crawford in which among other things he said , "I felt, and I
believe correctly , that with all these things pending that until the matter of a major-
ity was determined by the Board that we should suspend further negotiations until
the matter of the Union's majority has been determined by the Board . We feel
that to enter into negotiations at the present time would simply mean that we were
negotiating a contract with a union that does not represent the majority of our
employees ." According to the Respondent , it questioned the Union 's majority because
there were more employees dishonoring the picket line and working for the Company
than on the picket line. On May 15, 1965, there were 78 employees in the unit; 54
employees had not returned to employment at the time of the hearing and remained
on strike.
Spears testified that the request for a wage increase was not discussed at the
May 18 meeting although the Union 's proposal contained a request for a 25-cent-
an-hour retroactive wage increase . Spears also testified that when the probability
of a steel strike was removed on May 1 , the Respondent did not suggest that nego-
tiations be commenced on the wage reopener with such impediment removed.
C. The refusal to bargain on and after May 18, 1965
By letter dated May 5, 1965, the Union requested the Respondent to meet "for
the purpose of negotiating the terms and conditions of a new collective bargaining
agreement ." On May 18, 1965, the Respondent refused the request and by letter
dated May 25, 1965 , advised the Union that it would "suspend further negotia-
tions until the matter of the Union 's majority has been determined by the Board."
The 'certification year and the agreement expired on July 6, 1965. The 60-day
insulated period commenced on May 8, 1965. Hence the refusal to bargain occurred
both within the certification year and the 60-day insulated period.
The Charging Party urges that the Respondent on and after May 18, 1965, "was
guilty of an unfair labor practice by refusing to bargain for a new contract that
would replace the original contract ." In his brief the General Counsel states, "This
position is not opposed by counsel for the General Counsel inasmuch as it appears
that the matter which would provide a basis for the Charging Party's position was
litigated and the complaint in the case was sufficiently broad to cover the Charging
Party's position . See Banner Press, Inc., 153 NLRB 1092 ." Nevertheless , the Gen-
eral Counsel submits that "a general bargaining order issue requiring the Respond-
ent to bargain with the Union ." Under the circumstances it is my opinion that the
point raised by the Charging Party is germane and should be decided herein.
The Respondent 's defense of good -faith doubt as to the Union 's continuing major-
ity is drawn from proof that nonstrikers plus striker replacements exceeded the
strikers on May 18, 1965. This defense of good-faith doubt may not be sustained.
New employees , in this case the striker replacements , "will be presumed to support
a union in the same ratio as those whom they have replaced ." Cf. Laystrom Manu-
facturing Co., 151 NLRB 1482.12
12 In American Seatsng Company, 106 NLRB 250 , 252, the Board said :
A duly elected statutory representative is the representative of a shifting group of
employees in an appropriate unit which includes not only those employees who
approve such relationship , but also those who disapprove and those who have never
had an opportunity to express their choice.
SISKIN STEEL AND SUPPLY CO. 1051
In Reliance Clay Products Company, 115 NLRB 1736, 1747, the Respondent
refused to bargain during the certification year because it had "replaced the striking
employees with permanent replacements." With Board approval I said, "Absent
`unusual ' circumstances, an employer must bargain with a Union certified by the
Board for a period of 1 year following the issuance of the certification. Ray Brooks
v. N.L.R.B., 348 U.S. 96. Alleged, or even actual, loss of majority during the 1-year
period is not such an `unusual ' circumstances as will justify an employer's repudia-
tion of the certified union as the statutory representative of the employees in the
unit which the Board found appropriate." Citing Reliance Clay Products Co., in
Alva Allen Industries, Inc., 154 NLRB 1772, 1773, the Board opined, "The replace-
•ment+of economic; strikers within the certification. year'' does not relieve. an employer
of the duty to bargain in good faith with the. certified representative of its
employees."
Thus during the certification year the Respondent was barred from raising, as a
defense to its refusal to bargain, a good-faith doubt as to the Union's continuing
majority derived from the replacement of its striking employees even though they
are considered as economic strikers. Likewise during the certification year the
Respondent was barred from raising, as a defense to its refusal to bargain, a good-
faith doubt as to the Union's continuing majority derived from the continuation of
nonstrikers in its employment.
In Capitol Aviation, Inc., infra, the Board held that a strike of "not more than
25 out of approximately 60 employees in the unit" with only 12 strikers remaining
at the end of the strike did not support an employer's "good faith doubt as to the
Union's majority status." The Board's decision recognizes that there may be a vari-
ety of reasons why employees, feel,, disinclined . to. endanger-their' job security or
income by striking, but this does not necessarily mean that the nonstrikers do not
prefer that the union continue as their bargaining agent.13
Since neither the replacement of strikers nor the continuation of nonstrikers in
the Respondent's employment can give rise to a cognizable good-faith doubt 14 as
to the Union's majority status during the certification year, the Respondent remained
under a duty to bargain even though the striker replacements and nonstrikers
exceeded the strikers in number. Moreover, in any event, the Respondent was not
relieved of the duty to bargain since at the time of its refusal to bargain an elec-
tion among its employees was not warranted. See N. I. MacDonald & Sons, Inc.,
155 NLRB 67. A question of representation did not exist in the instant case on
May 18, 1965; hence a petition for an election, had one been filed,15 would have
been dismissed. Centr-O-Cast & Engineering Company, 100 NLRB 1507, 1508. For
the "'period during which ... no question concerning representation might validly
be raised, the Respondent was under the duty to recognize and bargain with the
Union.' Otherwise, we should have the anomalous result of an employer being per-
mitted unilaterally to redetermine his employees' bargaining representative at a
time when the Board would refuse to make such redetermination because the time
is inappropriate for such action." Hexton Furniture Company, 111 NLRB 342, 344.
Nonetheless the question remains whether the Respondent, who was under a duty
to bargain, was excused from barganing for an agreement which was to become
effective after the expiration of the certification year and current collective-barganing
agreement.
The Act commands bargaining in good faith in respect to "wages, hours, and other
terms and conditions of employment . . . the negotiation of an agreement .-. . any
question arising thereunder, and the execution of a written contract incorporating
any agreement reached . . ." [Emphasis supplied.] By this language the statute
makes "the negotiation of an agreement" a mandatory subject of bargaining. The
negotiation of an agreement which is to take -effect or remain in effect after the
"Union members sometimes dishonor union picket lines yet do not withdraw their
union membership See Allis-Chalmers Manufacturing Company, 149 NLRB 67.
14 It is noted that a good-faith doubt defense is not available to an employer If it is
raised In the context of illegal union activity (Master Transmission Rebuilding Corpora-
tion & Master Parts, Inc, 155 NLRB 364) which is the circumstance here. See infra
15 The filing of a petition for an election, if cognizable, would not have constituted a
defense to the refusal to bargain because "the filing of a petition for an election does
not suspend an employer's duty to bargain in the absence of evidence showing a good
faith doubt" (Master Transmisswn Rebuilding Corporation it Master,Parts, Inc., supra).
As noted above, the evidence submitted does not support a finding of good-faith doubt in
the instant case.
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
expiration of the certification year 16 is not excepted. This is also true of an agree-
ment which is to take effect or remain in effect after the expiration of 'a current
collective-barganing agreement. A party is only excused from the obligation to bar-
gain in respect to the negotiation of an agreement if it involves "modification of the
terms and conditions contained in a contract for a fixed period if such modification
is to become effective before such'terms and conditions can be reopened under, the
provisions of the contract." Such was not the situation in the instant case. On May 18,
1965, the date upon which the Respondent refused to bargain, the contract between
the Union and the Respondent stood reopened for negotiation in respect to a new
or modified contract. Thus the Respondent's refusal to negotiate in respect to a
new or modified agreement, mandatory subjects of bargaining, was in disregard of
the plain intent of the Act and was in violation thereof. To adopt any other con-
struction of the statute would mean that a party would always be relieved of the
obligation to bargain in respect, to the negotiation of a new or modified agreement
during the term of the agreement whether or not it extended beyond the certification
year. Such a conclusion seems derisory; chances for the settlement of a new or modi-
fied contract before the expiration of the current contract would be markedly less-
ened and the policy of the Act which fosters the elimination of the causes of indus-
trial unrest would be frustrated. Under these circumstances an employer would not
be prevented "from knowing that `if he dilly-dallies or subtly undermines the union
strength' he may erode that strength and relieve himself of his duty to bargain." In
order to avoid an occurrence of this kind the Board has required the employer to
bargain for the full certification year.17
By refusing to bargain during the certification year in respect to the negotiation
of an agreement to become effective after the expiration of the certification year, the
Respondent did not fulfill its statutory obligations and was guilty of a refusal to
bargain.18
Another reason is present in the instant case for requiring the Respondent to
bargain in respect to a contract to take effect after the certification year. By virtue
of the existence of the contract executed on October 9, 1964, the Union was entitled
to exclusive recognition for at least the term of the contract and the Respondent
was obliged to treat with the Union as the majority representative. Shamrock Dairy,
Inc., 124 NLRB 494, 496. The efficacy of such rule is obviously diminished if it
does not contemplate that, as part of the employer's bargaining responsibilities, the
employer will bargain in respect to the negotiation of an agreement to become
effective after the expiration of a current agreement. That such was intended by the
rule is apparent from the fact that the Board has set up a 60-day insulated period 19
"immediately preceding and including the expiration date of an existing contract,
whether or not it includes an automatic renewal clause . .. during which the par-
ties may negotiate and execute a new or amended agreement without the intrusion
of a rival petition," during which period a question of representation is deemed not
to exist. Deluxe Metal Furniture Company, 121 NLRB 995, 1000 (Emphasis sup-
^plied.) If this rule of the Board is to possess vitality the Respondent was obligated
to bargain in respect to a "new contract" or an "amended contract" between May 8
and•July 6, 1965, even though the Respondent, during such period, claimed a loss
of majority due to the replacement of strikers and the continuation of nonstrikers
in its employment. To remove the negotiation of a "new" or "amended" agreement
from the mandatory subjects of bargaining during the 60-day insulated period
"The Board has held that it is an unfair labor practice for an employer to insist upon
an agreement which will expire at the end of the certification year. See Capital Aviation,
Inc, 152 NLRB 745.
17MarJac Poultry Company, Inc, 136 NLRB 785
18I am not unmindful of F W. Woolworth Co, Store No 2367, 146 NLRB 848, which
is deemed to be inapposite
29 The Respondent did not try to test whether a question of representation existed by
filing a petition for an election with the Board prior to the 60-day insulated period even
though the Union's majority was lost, according to the Respondent, iiithin 6 weeks after
the strike commenced on March 17, 1965 "The Act as amended provides in Section 9(c)
(1) (b), a method whereby an employer who doubts the continuing majority status of his
employees' bargaining representative may resolve such doubt by filing a petition .11
J. P. O'Neil, et al . d/b/a J. P. O'Neil Lumber Company, 94 NLRB 1299, 1300 If this
procedure is not open to the employer, the employer has no alternative but to continue
bargaining with the incumbent union. Cf. N. J. MacDonald d Sons, Inc., supra.
SISKIN STEEL AND SUPPLY CO. 1053
would leave little else for bargaining and would contribute to industrial unrest and
strife rather than to encourage the resolution of employer-employee differences
through the processes and procedures of collective bargaining. It was not intended
that the obligation to bargain be held meaningless in this respect; nor was it
intended that the parties be excused from an obligation to bargain once established
during a period in which a representation question does not exist or is not cogni-
zable by the Board. Hence during the 60-day insulated period the parties are obli-
gated to bargain in respect to a "new" or "amended" agreement. To hold otherwise
would allow an employer to bypass the election procedures provided in the Act
and raise a question of representation for the first time during the 60-day insulated
period by claiming a good-faith doubt as to the union's majority status and by a
refusal to bargain. That this was not the intent of the statute is clear from the
language of the Supreme Court in Ray Brooks v. N.L.R.B.,20 348 U.S. 96, 103:
If an employer has doubts about his duty to continue bargaining, it is his
responsibility to petition the Board for relief, while continuing to bargain in
good faith at least until the Board has given some indication that his claim
has merit.
The Respondent's withdrawal of union recognition on May 18, 1965, based upon
an alleged loss of majority resulting from the replacement of strikers and the con-
tinuation of nonstrikers in its employment was the climax to the Respondent's
predetermination not to reach agreement, which it had in mind even prior to the
representation election on June 25, 1964. The Respondent's refusal to bargain on
May 18, 1965, and thereafter, contributed to a continuation of industrial discord
and placed an insurmountable barrier in the path for the settlement of the existing
dispute between the Respondent and the Union. By adhering to such attitude the
Respondent engaged in conduct reasonably calculated to influence its employees
to abandon their concerted activities and to undermine the Union. Such conduct
constitutes interference, restraint, and coercion of employees in the exercise of
their rights guaranteed in Section 7 of the Act, in violation of Section 8(a) (1)
thereof.
Had the strike, which commenced on March 17, 1965, not been an unfair labor
strike ab initio, it would have been converted into an unfair labor practice stnke
on May 18, 1965, by reason of the Respondent's unfair labor practices above
detailed. R. I. Oil & Refining Co., Inc., 108 NLRB 641, 648.
D. The alleged violation of Section 8(a) (5) of the Act prior to May 18, 1965
Section 8(d) of the Act states: ". . to bargain collectively is the performance
of the mutual obligation . . . to confer in good faith . . . but such obligation does
not compel either party to agree to a proposal or require the making of a con-
cession ." This language does not mean , however, that a refusal to make a conces-
sion may not constitute an indicia of the want of good faith.21 " `Good faith' is a
state of the mind ." N.L.R.B. v. Stanislaus Implement and Hardware Com-
pany, Ltd., 226 F.2d 377 (C.A. 9). To assess good faith of a negotiating employer
"is essentially to determine from the record the intention or state of mind of
" In the Brooks case the employer was ordered to bargain with a union which at the
time no longer remained the bargaining representative designated by a majority of its
employees. The Board's Order, affirmed by the Court, provided among other things, that
"if an understanding is reached , embody such understanding in a signed agreement."
Ray Brooks , 98 NLRB 976 , 977. Clearly there was no legal impediment standing in the
way of the execution of an agreement between the Respondent and the Union in the in-
stant case even though the Union ceased to remain the designated bargaining ' representa-
tive of a majority of the Respondent ' s employees Thus, the reason assigned for the
Respondent 's refusal to bargain is suspect.
21 In Ea8t Texas Steel Castings Company , Inc., 154 NLRB 1080 , the Board said that it
may determine motives "based on an evaluation of the bargaining positions taken by the
parties at the negotiating table ." The Respondent had adamantly refused to grant any
general wage increase and instead had proposed a wage provision that would maintain
the existing scale. The Board held that "the proposals here were lacking in concessions of
value and that it would be unreasonable to believe that Respondent tendered such offers
without anticipating their immediate rejection by the Union .". The Board found a violation
of Section 8(a) (5) of the Act.
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[the employer] in the matter of [its] negotiations with the Union" (N.L.R.B. v.
National Shoes, Inc., 208 F.2d 688, 691 (C.A. 2)). Justice Frankfurter in a con-
curring opinion in N.L.R.B. v. Truitt M. Co., 351 U.S. 149, 155, said:
A determination of good faith or want of good faith normally can rest only
on an inference based upon more or less persuasive manifestations of another's
state of mind.
Thus a determination of the manifestations of the Respondent's state of mind is
the pertinent consideration in this case. As was stated in N.L.R.B. v. Stanislaus
Implement and Hardware Co., supra, 380, "An unpretending sincere intention and
effort to arrive at an agreement is required by statute; the absence thereof consti-
tutes an unfair labor practice."
The General Counsel contends that the Respondent's refusal "to agree to any
kind of a wage increase during the reopener was nothing more than a continuation
of its plan to rid itself of the Union" and that the "Respondent's position on wages
was a position taken in bad faith and designed to get rid of the Union, a design
that was carried out almost to perfection."
The Respondent concedes that "Each party was obligated to state its reasons
frankly and to give consideration to proposals of the other party." The Respondent
maintains that it fulfilled this obligation in that it "furnished adequate support for
the Respondent's bargaining position" and that "a wage increase would have been
contrary to ordinary prudence and good business judgment."
Prior to the election on June 25, 1964, the Respondent had expressed its opposi-
tion to its employees' selection of the Union as a collective-bargaining agent and
Garrison Siskin described with almost flawless accuracy what would transpire if
the employees chose the Union as their bargaining representative. Indeed, there is
serious doubt whether the 1964 negotiations which occurred after the election
resulted in any economic gains for the Respondent's employees 22 Employee White
testified without contradiction that he lost 70 cents per hour by reason of the
elimination of the bonus and the overtime. Because of the economic position taken
by the Respondent in the 1964 negotiations, a strike was averted only because the
Union chose to accept a wage reopener which it had proposed rather than to strike
for more than the 5 cents general wage increase offered by the Respondent. The
Union accepted the Respondent's explanation that it "was in trouble with ware-
house space 23 and rented space" and that it "would be able to consider wages in
a better light come March." "Come March" the Respondent advanced new 24 rea-
sons to support its position against further wage increases.
At the commencement of the 1965 negotiation's on January 12; 1965, the Respond-
ent well knew that the wage. reopener was accepted by the Union in lieu of strike
and that absent a wage increase on the reopener the Respondent could reasonably
expect a strike.25 That a strike was anticipated was revealed by Mose Siskin's state-
ment to employee'Stone that a strike would occur. Moreover, it seems unlikely that
the Union and the Respondent's employees, smarting as they were from the loss of
22 In the 1964 contract in addition. to the 5-cent-an-hoar general wage increase, fringe
benefits were given which consisted of an increase in group life insurance from $5,000 to
$8,000 for each employee Vacations were increased from 1 week a year to 2 weeks for
those employees having 5 to 15 years' service, and 3 weeks for those employees having more
than 15 years' service. The Respondent fixed the cost of its insurance and pension plans
at approximately 19 cents per hour which included the fringe benefits in the 1964 contract.
The record does not reveal the cost of the 1964 vacation benefits.
23 The Respondent's warehouse was completed 3 weeks before the strike.
24 These "new" reasons were not mentioned during the 1964 negotiations which, con-
cluded on October 9, 1964, slightly over 4 months before the reasons were advanced for
the first time at the February 16, 1965, negotiation meeting, although, according to Spears'
testimony, the Respondent during the 1964 negotiations was "aware of a possible strike
in the major steel industry in May of 1965." It seems that, if such reasons were other
than pretended, the Respondent would have raised them during the 1964 negotiations.
The Respondent 's failure in this respect gives rise to the inference that the reasons were
seized upon during the 1965 negotiations to screen the Respondent' s true purpose in re-
fusing tooffer -a counterproposal.
za Spears testified that he was not "surprised" when the Union reopened the contract for
the negotiation of wages -
SISKIN STEEL AND SUPPLY CO. 1055
bonuses and overtime, would have accepted the Respondent's bargaining position
without a strike in view of the Respondent's refusal to offer a counterproposal or to
unequivocally make known when a wage increase might be expected. The bargaining
position of the Respondent placed the Union in an apparent dilemma: if the Union
capitulated, it would lose employee support because the Union would be disclosed
as an impotent, useless bargaining instrumentality , and, if the Union engaged in
strike it would risk its destruction as a bargaining agent by the use of such tactics
as were used by the Respondent in the instant case and which were devised by the
Respondent even before the representative election occurred. That the Respondent
was reasonably certain of what would result from its fixed and intransigent bargain-
ing position is evident from Garrison Siskin's discourse with employee White prior
to' the election in which Siskin said that the Respondent would want the employees
"to go on strike" as means of ridding the Respondent of the Union. The obvious
sophistication of Garrison Siskin also warrants such a conclusion.
The Respondent in' justifying its fixed bargaining position presumed that a wage
increase would have a disastrous effect upon the economy of the Respondent. It was
represented that the threat of the steel strike meant additional investments for both
scrap and new steel inventory, and that an increase in wages would impair the
Respondent's competitive position in that the Respondent's wage scale already
exceeded that of its competitors in the scrap business. As explained by Garrison
Siskin, "If we did anything at all to increase our overhead before May 1st, if
there was or wasn't going to be a steel strike, then we would be just hurting our-
selves economically." Garrison observed, "We were just scaied to death, literally" 26
(emphasis supplied) and "the only reason we didn't make a counter proposal was we
didn't know what our situation would be if there were a steel strike." ".. , we
wanted to wait until May! 1st ..." 27
From the testimony of Garrison Siskin, which is confirmed by other evidence in
the record, it seems clear that the Respondent's stated motive for its adamant refusal
to offer a counterproposal was its fear lest economic disaster befall it, if any wage
increase were granted prior to May 1, 1965.
Thus, the issue is presented whether the Respondent's actual motive in refusing
to offer a counterwage proposal stemmed from the fear as stated ("scared to
death, literally,") or from a desire as claimed by the General Counsel, "to rid itself
of the Union."
I am not convinced that the Respondent's motive was as stated or that the rea-
sons advanced by the Respondent for its refusal to make a concession or a counter-
proposal were presented in good faith or "with a desire to reach agreement" 28
with the Union on the issues involved. The Respondent's behavior as a whole re-
flected a refusal to negotiate which directly obstructed and inhibited the actual proc-
ess of discussion and manifested a cast of mind against reaching agreement and
was in violation of Section 8(a)(5) and (1) of the Act. See N.L.R.B. v. Katz, 369
U.S. 736, 747. The Respondent's bargaining position was taken as a device for
depriving the Union of any prestige which might have been derived from a nego-
tiated wage increase and to drive the Union to strike. "Good faith is essentially a
matter of underlying attitudes or motivation " Kohler Co., 128 NLRB 1062. " `Good
faith' is one form of credibility; it means that the motive that actuated the conduct
in question was what the actor ascribes to it, i.e., that what he gives as his motive
was in truth his motive." N.L.R.B.'v. James Thompson & Co, Inc., 208 F.2d 743,
745 (C:A. 2). Thus, a trier of fact must determine whether the Respondent's wit-
nesses on` this subject were testifying "in truth" as to the Respondent's motive. Gar-
rison Siskin was the principal witness on this subject.
Throughout Garrison Siskin's entire testimony his observable behavior evidenced
a consciousness of the concealment of the Respondent's true motive and a lack of
belief in the validity of the reasons advanced. Siskin did not impress me as actually
believing that he was "scared to death, literally" with the prospects of granting some
20 Spears expressed the same concern. He testified , " to push ourselves out, as I ex-
plained to the Union , any further ahead of our competitors that it was dangerous at this
time ...." ( Emphasis supplied.)
21 The steel strike would not have occurred prior to May 1, 1965.
29 "Good faith bargaining" requires the parties to negotiate "with a desire to reach
agreement" (N.L.R.B. v. Insurance Agents' International Union [Prudential Ins. Co.],
361 U.S. 477, 488).
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wage increase before May 1, 1965 . 29 The reasons given by Siskin for the Respond-
ent's bargaining position did not have a "convincing ring." Cf. Capitol Aviation,
Inc., 152 NLRB 745.
I closely observed the demeanor of Garrison Siskin while Siskin was testifying,
and conclude that the motive which actuated the Respondent's bargaining position
was not as described by Siskin. I discredit Siskin 's testimony , to wit : "We had no
other reasons." The failure of the Respondent to disclose honest reasons for its
bargaining position was evidence of bad faith. N.L.R.B . v. Truitt Mfg. Co., 351
U.S. 149 . Moreover the Respondent 's adamant insistence upon its bargaining posi-
tion pervading the entire negotiations reveals that it approached the bargaining
table with a closed mind and a predetermined disposition not to bargain. The
Respondent met with the Union simply for the purpose of projecting the appear-
ance of collective bargaining. Indeed, in viewing the close personal contacts the two
Siskins maintained with the Respondent 's establishment , the fact that they had
planned and paid for vacations in December 1964 which were to occur during a
period in which it was reasonable to believe that bargaining would be reopened on
wages is convincing evidence of the fact that the Respondent had at that time
already determined its course for bargaining. Moreover, upon Garrison Siskin's
return from his vacation on March 16, 1965, the Respondent 's predetermined dispo-
sition not to bargain was again apparent . On the day Garrison Siskin returned
from his vacation, his attorney advised him that the Union was "going to vote to
strike" that evening. Siskin 's response was "There is nothing I can do. If they are
going to strike that night , I couldn 't stop them." Furthermore , instead of meeting
with the Union (Garrison had been on vacation from February 27 to March 15,
1965 ) on March 16, 1965 , to at least explore the possibilities of avoiding or post-
poning the strike , Garrison and Mose Siskin attended a "charity meeting" which
Garrison Siskin said they "had to go to that night ." Garrison Siskin's rejection of a
possibility of avoiding the strike by failing to meet with the Union on the eve of
the strike , lends support to the testimony of employee White in which he quoted
Garrison Siskin as saying that the Respondent would want the employees "to go
on strike ." By abandoning collective bargaining at this juncture, the Respondent
made certain that the strike would occur as planned.
Proof that the Respondent approached the bargaining table with a closed mind
and a predetermined disposition not to bargain in good faith is again revealed in its
failure to open wage discussions with the Union on and after May 1, 1965 , the date
upon which the alleged impediment to offering a counterproposal caused by the
potentiality of a steel strike was removed . The record is barren of any explanation
for this failure unless it is attributed to the fact that at this point the Respondent's
objectives had been substantially achieved ; the strike had occurred and strikers had
been replaced. To have dealt in good faith with the Union at this juncture for the
purpose of evaluating its wage demands in light of the termination of the steel strike
would have worked at cross purposes , for such acknowledgment of the Union would
have contributed to the Union 's prestige and strength which by its bargaining tactics
the Respondent had sought to destroy.
Other considerations confirm a finding that the Respondent 's position on wages
was taken in bad faith and that the Respondent did not furnish adequate support for
its bargaining position . The Respondent asserted that it was "scared to death" at
the prospect of a raise before May 1 , 1965, the date of the antcipated steel strike.
Had the Respondent granted the full wage increase demanded for its 85 employees
it would have amounted to $850 for a 40-hour week . It seems highly unlikely that
an additional burden of $850 per week would have caused economic disaster to a
business grossing over $55 ,000 a week in new steel sales alone and realizing more
profit out of its scrap business than out of its new steel business . The Employer was
apparently well aware of this fact when it refused to stand upon its inability to pay,
although from its reasons given to the Union ("it was dangerous at this time" to
grant a raise-Spears ), the Respondent suggested inability to meet the Union's
2D In the face of this "scare" both Mose and Garrison Sisk-in took separate vacation
cruises. Garrison's vacation extended from February 27 to March 15, 1965. A wage in-
crease for the Respondent 's 85 employees of 5 cents an hour for a 40-hour week would
have amounted to $170 The record does not reveal a plausible explanation for Siskin's
absence on vacation during a period when it seemed expedient for preparations to have
been made for the eventuality of a national steel strike.
SISKIN STEEL AND SUPPLY "C0. 1057
demands.30 Had the Respondent made a counteroffer of 5 cents an hour (which it
refused to make because it did not know what the "situation would be if there was
a steel strike"), the cost for its 85 employees would have been $ 170 for a 40-hour
week . There is no proof in the record that this small increase for the period from
March 16 to July 9 would have jeopardized the financial position of the Respondent
whether or not there was a steel strike on May 1, 1965. Furthermore , it is signifi-
cant in evaluating whether the Respondent advanced true reasons for its intransi-
gence to consider that during the prior negotiations the Respondent had gained as
much as, in some cases, 70 cents an hour from its employees . The Respondent made
no offer to restore any of these losses. Moreover , had the Respondent been moti-
vated by a good-faith desire to reach an agreement with the Union, it could have
well suggested a retroactive application of any future wage increases negotiated.
Nevertheless , the Respondent failed to make any counteroffer . Thus, it seems clear
that the Respondent sought to stall to the point where the Union would lose face
with its employees or be provoked into strike.31
The Respondent 's second reason for its bargaining position concerns the Respond-
ent's claim , as stated by Spears , that "it was dangerous at this time " to push ahead of
the Respondent 's competitors . The Respondent by its own admission had .little to
fear from its competitors . It was 10 years ahead of them in the most profitable
end of its business and enjoyed a "family relationship " with Republic Steel which
purchased 80 percent of the Respondent 's scrap and supplied it with a large quan-
tity of new steel. The Respondent 's second reason seems also specious in that while it
would appear that the Respondent sought to convince the Union of the dangers from
its competitors , incongruously it did not stand on its inability to grant the wage
increase and remain competitive . 32 The reasons advanced by the Respondent were
pretextuous and were advanced for the purpose of projecting an appearance of
bargaining.
I agree with the General Counsel that the Respondent 's course of conduct was
tailored to effect a riddance of the Union.
The Respondent was under a duty to enter into sincere, good -faith negotiations
with the Union with an intent to settle differences and arrive at an agreement. The
Respondent was required to deal with the Union with an open and fair mind and
sincere endeavor to overcome obstacles or differences existing between it and the
Union to the end that employment relations might be stabilized and obstruction to
the free flow of commerce prevented . Instead, Respondent pretended to negotiate
with a completely closed mind and without any intent to reach agreement. By its
unlawful intransigence it aimed to rid itself of the Union . The Respondent's bar-
gaining, motivated as it was, was the antithesis of good-faith bargaining.
Based upon the totality of the evidence , I find that the Respondent engaged in
unfair labor practices in violation of Section 8(a) (1) and ( 5) of the Act , that the
strike which occurred on March 17, 1965 , was caused and prolonged by the Re-
spondent's unfair labor practices , and that the Respondent 's employees engaged in
strike were and are unfair labor practice strikers.
E. The appropriate unit and the Union's majority status
The complaint alleges, the answer admits , and I find that:
All employees of Respondent 's scrap processing and warehouse steel operations of
Chattanooga , Tennessee , including the maid and all truckdrivers , but excluding all
BO The Supreme Court has said :
If such an argument [ the inability to pay an increase in wages] is important enough
to present in the give and take of bargaining , it is important enough to require some
sort of proof of its accuracy.
N L.R.B. v. Truitt Mfg. Co, 351 U.S. 149, 152, 153.
83 While Spears testified that there "was no reason to have a strike during the 'wage
reopener ' because of the fact that within 21/_. to 3 months , the whole thing would be up
again and could be considered by both parties," no alternative was suggested nor did the
Respondent accept the Union's suggestion that the entire contract be opened for
negotiation.
32 ". . . an employer 's claim that it could not grant an increase and remain competi-
tive so as to avoid losses is equivalent to a plea of inability to pay." Boulevard Storage
& Moving Co ., Inc., 152 NLRB 539.
257-551-07-vol . 160-68
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
office clerical employees , professional employees , inside and outside salesmen , Siskin
Memorial Foundation employees, 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; that on July 6, 1964, the Union was certified
by the Regional Director for Region 10 as the exclusive bargaining representative
of the employees in the aforesaid unit, and that the Union has at all times since
that date been such representative 33
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES,UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with the operations of Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
The Board has lately said:
The Board has a particular duty under Section 10(c) to tailor its remedies to
the unfair labor practices which have occurred and thereby effectuate the pol-
icies of the Act. Thus, "depend[ing] upon the circumstances of each case," the
Board must "take measures designed to recreate the conditions and relation-
ships that would have been had there been no unfair labor practice." H. W.
Elson Bottling Co., 155 NLRB 714, 715.
"To re-create the conditions and relationships that would have been had there
been no unfair labor practice" in the instant case would mean literally that the
status quo must be restored as of a date immediately preceding the time when the
Respondent first embarked upon its course of bad-faith bargaining. At that time all
strikers were gainfully employed by the Respondent. There were no striker replace-
ments. On that date, had the Respondent committed no unfair labor practices, it
would have commenced bargaining in good faith with the Union. Under these cir-
cumstances, it is reasonable to assume that the strikers would have remained at
work although it is, of course, speculative whether an agreement would have been
reached without a strike.
The re-creation of the identical conditions and relationships as they existed had
the unfair labor practices not been committed appears to be impossible of achieve-
ment, but there is left the probability of depriving the Respondent in part of the
advantages it has unlawfully gained, one of which has been the reduction of the
Union's bargaining power to almost nothing. By its unfair labor practices the
Respondent deprived its employees of the means of dealing with their employer
with a measure of equality, discouraged collective bargaining, and rendered impo-
tent their utilization of collective action. In this the Respondent flouted the purposes
of the Act. ". . . the avowed and interrelated purposes of the Act are to encourage
collective bargaining and to remedy the individual worker's inequality of bargain-
ing power .. ." N.L.R.B. v. Hearst Publications, Inc., 322 U.S. 111, 126.
To order the employer to bargain in good faith when all union partisans have
been replaced, which same condition will continue until the strike is terminated or
abandoned, means that the Union will commence bargaining without the "bargain-
ing power" which it would have possessed had the unfair labor practices not been
committed. In fact, one of the apparent purposes of the unfair labor practices was
to destroy the Union's bargaining strength by the replacement of unfair labor prac-
tice strikers. Moreover, a bare order to bargain will have a tendency to influence
the Respondent to engage in subtle contrivances to cause bad-faith bargaining to
appear as good-faith bargaining. A bare order to bargain in this case will only
serve to acknowledge the formalities of the law while the Respondent retains full
possession of the fruits of its violations. Cf. Montgomery Ward & Co., Inc. v.
N.L.R.B., 339 F.2d 889, 894 (C.A. 6). Moreover, it is the Respondent who should
bear the brunt of the disentanglement of the consequences of its unfair labor prac-
tices, since it has caused the chain of events which resulted in the deprivation of
rights flowing to the Union and its employees. An appropriate remedy contemplates
that the employer shall not retain the fruits of, his unfair labor practices. Beacon
33 It is noted that a loss of majority coming after the Respondent 's unfair labor prac-
tices would not affect the Union 's majority status. Kohler Co., 128 NLRB 1062, 1068.
The Respondent admits the latter finding only in part.
SISIIN STEEL AND SUPPLY CO. 1059
Piece Dyeing and Finishing Co., Inc., 121 NLRB 953, 963. See also N.L.R.B. v.
Armco Drainage & Metal Products, Inc., 220 F.2d 573 (C.A. 6); Piasecki Aircraft
Corporation v. N.L.R.B., 280 F.2d 575, 591 (C.A. 3) cert. denied 364 U.S. 933. A
remedy which will "effectuate the policies" of the Act in this case calls for a resto-
ration of the Union's bargaining power lost by reason of the Respondent's unfair
labor practices.
Had the Employer not committed unfair labor practices, it is reasonable to
believe that collective bargaining would have matured and that the Respondent's
striking employees would now be enjoying the benefits of employment including the
remuneration flowing therefrom. This they have been denied. Moreover, immedi-
ately after the strike commenced, the Employer advised its employees that if they
continued to strike, that is to say, if they remained unfair practice strikers, they
would be replaced. Thus, it would have been futile for any striker to have offered
to return to work after he was replaced, since the clear intent of the Respondent's
letter was to exclude him from future employment. After the striker was replaced,
any application by the strikers for reinstatement would have been futile and unnec-
essary. Cf. Esti Neiderinan et al. d/b/a Star Baby Co., 140 NLRB 678. On the day
of the strikers' replacement, the Respondent closed its establishment to the strikers
as effectively as if it had shut down the plant. Thus, not only did the Respondent
by its unfair labor practices cause its employees to cease work (which under the
circumstances may be comparable to a constructive discharge), but, by depriving
strikers of their jobs, the Respondent virtually locked out unfair labor practice
strikers to whom it owed a duty to offer work and to continue in its employment.
The unfair labor practice strikers' loss of pay flowed from the Respondent's com-
mission of unfair labor practices and is no different in effect than had the Respond-
ent been guilty of a violation of Section 8(a)(3) of the Act.
Hence, in order that to some extent the bargaining power of the Union destroyed
by the Respondent's unfair labor practices may be restored, and, in order that the
unfair labor practice strikers who lost pay by reason of the Respondent's unfair
labor practices may be reimbursed, and, in order to effectuate the policies of the
Act, I recommend, in addition to a bargaining order and the posting of notices, that
the Respondent make whole each unfair labor practice striker for loss of earn-
ings 34 he has suffered by paying to him a sum of money equivalent to the amount
he would have normally earned from the date he was replaced by another employee
until such time as the Respondent has complied with the Recommended Order
herein , less net earnings during said period, to be computed on a quarterly basis in
the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289,
and shall include interest at the rate of 6 percent per annum, to be computed in
the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of the Act.
2. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
3. All employees of Respondent's scrap processing and warehouse steel opera-
tions of Chattanooga, Tennessee, including the maid and all truckdrivers, but exclud-
ing all office clerical employees, professional employees, inside and outside sales-
men, Siskin Memorial Foundation employees , 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. At all times since July 6, 1964, the Union has been the duly certified collective-
bargaining representative of the Respondent's employees in the aforesaid unit.
5. By refusing on and,since January 12, 1965, to bargain with the Union as
exclusive representative of the employees in the aforesaid appropriate unit, the
The Act does not specifically limit the Board's power to order backpay to any specific
violation of the Act . Section 10 ( c) of the Act provides :
If upon the preponderance of the testimony taken the Board shall be of the opinion
that any person named in the complaint has engaged in or is engaging in any such
unfair labor,practice , then the Board . . . shall issue . . on such person an order
requiring such person . . . to take such affirmative action including reinstatement
of employees with - or without back pay, as will effectuate the policies of the Act.
As unfair labor practice ' strikers, the strikers in the instant case are entitled to
reinstatement.
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a)(1) and (5) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and
upon the entire record in this case, it is recommended that Respondent, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain with the United Steel Workers of America, AFL-CIO,
as the exclusive representative of the employees in the appropriate unit.
(b) In any like or similar manner interfering with, restraining, or coercing its
employees in the exercise of their right to self-organization, to form labor organi-
zations, to join or assist United Steel Workers of America, AFL-CIO, or any other
labor organization; to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purposes of collective bar-
gaining or other mutual aid or protection, or to refrain from any or all such activ-
ities, except to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment as authorized in
Section 8(a)(3) of the Act.
2. Take the following affirmative action which it is found will effectuate the poli-
cies of the Act:
(a) Upon request, bargain with the Union as the exclusive representative of the
employees in the appropriate unit and, if an understanding is reached, reduce it to
writing and sign it.
(b) Make whole each unfair labor practice striker for any loss of pay he may
have suffered by reason of the Respondent's unfair labor practices in accordance
with the recommendations set forth in "The Remedy" herein.
(c) Preserve and, upon request, make available to the Board and its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records relevant or necessary to
the determination of backpay due and related rights provided under the terms of
this Recommended Order.
(d) Post at its Chattanooga, Tenessee, establishment, copies of the attached
notice marked "Appendix." 35 Copies of said notice, to be furnished by the Regional
Director for Region 10, after being duly signed by Respondent's representative,
shall be posted by it 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
Respondent to insure that said notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 10, in writing, within 20 days from
the date of this Decision, what steps the Respondent has taken to comply herewith 36
IT IS RECOMMENDED that the complaint be dismissed insofar' as it alleges viola-
tions of the Act other than those found in this Decision.
se In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice . In the further event that the Board 's Order Is enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
86In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read, "Notify said Regional Director , in writing , within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our employees that:
WE WILL, upon request, bargain collectively in good faith with United Steel
Workers of America , AFL-CIO, as the exclusive representative of all employees
MILLWRIGHTS LOCAL UNION NO. 1102, CARPENTERS 1061
in the bargaining unit described below with respect to rates of pay, hours of
employment and other conditions of employment, and, if an understanding is
reached, WE WILL embody such understanding in a signed contract. The bargain-
ing unit is:
All employees of the employer's scrap processing and warehouse steel op-
erations of Chattanooga, Tennessee, including the maid and all truckdrivers,
but excluding all office clerical employees, professional employees, inside
and outside salesmen, Siskin Memorial Foundation employees, guards,
and supervisors as defined in the Act.
WE WILL make. whole, each unfair, labor practice striker for any loss of pay he
may have suffered•by reason of our unfair labor practices.
WE WILL NOT in any other manner interfere 'with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor organi-
zations, to loin or assist the above-named or any other labor organization. to bar-
gain collectively through representatives of their own choosing, or to engage in
other concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities except to
the extent that such rights may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as authorized in Sec-
tion 8(a)(3) of the Act.
SISKIN STEEL AND SUPPLY.CO., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 528
Peachtree-Seventh Building, 50 Seventh Street NE., Atlanta, Georgia 30323, Tele-
phone 526-5741.
Millwrights Local Union No. 1102, United Brotherhood of Car-
penters and Joiners of America, AFL-CIO; Carpenters District
Council of Detroit , Wayne and Oakland Counties and Vicinities,
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO and Don Cartage Company
Millwrights Local Union No . 1102, United Brotherhood of Car-
penters and Joiners of America, AFL-CIO; Carpenters District
Council of Detroit, Wayne and Oakland Counties and Vicinities,
United Brotherhood of Carpenters ' and Joiners of America,
AFL-CIO; Detroit and Wayne County, Oakland and Macomb
Counties, Michigan Building and Construction Trades Council
and John Quinn . Cases 7-CD-97-1 and 2 and 3-1 and 5. Sep-
tember 13,1966
DECISION AND DETERMINATION OF DISPUTE
The instant proceeding under Sectioli 10(k) of the National Labor
Relations Act, as amended, was initiated by charges filed by Don Car-
tage Company, hereinafter called Don Cartage, and John Quinn, an
individual, alleging that Millwrights Local Union No. 1102, United
160 NLRB No. 89.