Southwest Engraving Co.

National Labor Relations Board - Board Decisions

Aug 4, 1972

198 N.L.R.B. 694 (N.L.R.B. 1972)

694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
L.E.M., Inc., d/b/a Southwest Engraving Co. and
Towell Printing Co. and International Brotherhood
of Bookbinders, AFL-CIO
L.E.M., Inc., d/b/a Southwest Engraving Co. and
Towell Printing Co. and Shirley Thome, Petitioner
and International Brotherhood of Bookbinders,
AFL-CIO. Cases 14-CA-5743 and 14-UD-55
August 4, 1972
DECISION, ORDER, AND DIRECTION
On June 24, 1971, Trial Examiner Gordon J. Myatt
issued the attached Decision in this proceeding.
Thereafter, the Charging Party filed a Motion To
Reopen Record and supporting affidavits and
exceptions and a supporting brief, the General
Counsel filed exceptions and a supporting brief, and
the Respondent filed cross-exceptions and a support-
ing brief.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, conclusions, and recommendations
only to the extent consistent with our Decision
herein.
The complaint alleges that Respondent violated
Section 8(a)(1), (3), and (5) of the Act by refusing to
discharge employees at the request of the Union and
by failing to recall strikers to the jobs occupied by
the employees whose discharges were requested.
Respondent contends that the Board is without
jurisdiction as this is a question of contract interpre-
tation and that the Board should defer to the
grievance and arbitration procedure embodied in the
collective-bargaining agreement between Respon-
dent and the Union. We agree with Respondent's
contention that this dispute is essentially a dispute
over the terms and meaning of the contract between
Respondent and the Union. For that reason, we find
merit in Respondent's exceptions that the dispute
should be resolved pursuant to the contract and we
shall dismiss the complaint.
The Union was certified as bargaining representa-
tive of Respondent's approximately 20 unit employ-
ees on September 2, 1969. Following unsuccessful
negotiations for a contract, the employees struck on
November 20, 1969. During the strike which lasted
until June 18, 1970, some employees returned to
work and some permanent replacements were hired.
In February 1970, while the strike was still in
progress, Respondent interviewed Robert Posey, an
applicant for a supervisory position. At that time
Respondent's president hired Posey but agreed that
he would not report for work until it was time for
him to take summer vacation from his current job.
198 NLRB No. 99
As a condition of Posey's employment, Respondent's
president, Matt, agreed to hire Posey's wife, Peggy.
Posey began working for Respondent in July and his
wife began on August 17, 1970, after the strike had
terminated. -
When the strike terminated on June 18, the Union
and the Respondent negotiated a contract. This
contract, which contained a union-security clause,
was signed on June 24 and was made retroactive to
June 18. Also at this time the Union informed Matt
that the strikers were ready to return to work but that
a few would not be available. Matt in turn informed
the Union that he had hired the Poseys who would
not report for work until later. Pursuant to a request
of Respondent, the Union sent a letter on July 31,
listing the names and current addresses of striking
employees available to return to work.
A union deauthonzation petition was filed on
August 13 by Shirley Thorne, one of the replace-
ments.
The Union informed Respondent by letter of
August 20 that employees Malone and Ben Sarver
had failed to tender an initiation fee and periodic
dues pursuant to the collective-bargaining agreement
and requested that Respondent immediately dis-
charge these individuals. On August 25, at a meeting
with the union officials and by letter, Respondent
refused to accede to the request to discharge Malone
and Sarver, stating that a UD petition had been filed
and until the matter was disposed of by the Board it
would refrain from taking any action which "might
be construed as an unfair labor practice." On the
same day, August 25, the Union, for the same reason,
requested the discharge of Thorne, Wynell Defoe,
Edith Defoe, Schmidt, Hodgins, and Kathleen
Sarver. Respondent answered on August 26 that it
would not discharge these employees, giving the
same reason it had to the previous request.
The Union sent a letter to the Respondent on
September 4, informing the Respondent that it was
not paying its employees the wage rates set forth in
the collective-bargaining agreement, that it had
refused to effect the discharge of employees request-
ed by the Union, and that the Union intended to
grieve the matter under the contract. Thereafter, on
September 24, Matt met with the union officials and
restated his above cited reasons for not discharging
the employees. He further stated that the grievance
was brought too late, that under the contract it
should have been brought by July 29. At that point
the union officials adjourned the meeting and the
grievance was not again brought up.
On October 15, the Union sent a letter to Matt
requesting the discharge of Peggy Posey for failure to
tender initiation fees and periodic dues. Respondent
answered the Union on October 21, refusing to
SOUTHWEST ENGRAVING CO.
discharge Posey for the same reason it had refused to
carry out the other discharges.
On November 19, the UD election was held with
all 21 ballots being challenged either by the Union,
the Respondent, or the Board agent.
The Trial Examiner dismissed the Respondent's
contention that the Board lacked jurisdiction to
decide the case, stating that a union-security provi-
sion was a valid term and condition of employment
and to alter such a provision unilaterally by failing to
give effect to it, in certain circumstances, is a
violation of Section 8(a)(5). However, he also found
that Respondent did not violate the Act in this
instance, because there was no probative evidence in
the record that any of the replacement employees
whom the Union requested be discharged received
notification from the Union regarding their obliga-
tions under the union-security provisions of the
contract to tender their dues and fees. As Respon-
dent was under no obligation to discharge these
employees due to the Union's failure to perform its
fiduciary duty, the Respondent was also not obliged
to recall replaced strikers to fill vacancies which
would have been created had it carried out the
discharges. Thus he also dismissed the 8(a)(3)
allegation.
The Trial Examiner also found that Respondent
hired Peggy Posey on August 17, after the strike had
ended, and that she was doing the work of a replaced
striker. The failure to recall a striker rather than hire
Peggy Posey, he found, violated Section 8(a)(1) in
that it discouraged employees from exercising their
protected right to strike. This action also violated
Section 8(a)(3) in that it discriminated against
striking employees because of their activities on
behalf of the Union.
The Trial Examiner rejected the Union's conten-
tion that Respondent violated Section 8(a)(1) and (3)
by altering its layoff policy and allowing supervisors
to perform work the striking employees had per-
formed, prior to the strike, as such allegation was not
supported by the record. The record showed that the
steps along this line which had been taken were
sufficiently justified by the decline in business and
were not taken to avoid recalling strikers.
As the Board is not deciding the merits of this
dispute, we do not adopt the Trial Examiner's
finding that Respondent violated Section 8(a)(1) and
(3) by hiring Peggy Posey and assigning her to work
which had been done by striking employees prior to
the strike. We shall, however, find that she was
eligible to vote in the election. The Board in the past
has held that if an employer makes a commitment to
an applicant for a striker's job, we will normally
695
regard that hire as a legitimate replacement even
though the striker requests reinstatement before the
replacement actually begins to work.' Although Mrs.
Posey did not report to work until August 17,
Respondent had made the commitment to give her a
job during the previous February, at the same time
her husband was given a commitment for a job as a
supervisor. We, therefore, find that Peggy Posey was
a legitimate replacement for a striker and we shall
overrule the challenge to her ballot.
We will not herein decide whether Respondent was
obligated to discharge the replacements upon request
of the Union, because of their failure to tender dues
and fees under the union-security clause. Neither will
we decide whether Respondent was obliged to recall
strikers to fill the vacancies left open had Respon-
dent discharged these replacements. Although we do
not agree with the Respondent that the Board lacks
jurisdiction to decide this controversy, we do believe
that the dispute is based on the parties' interpretation
of the contract, and would be best resolved through
the grievance procedure provided for in the parties'
contract.
In Collyer Insulated Wire, 192 NLRB No. 150, a
majority of the Board set forth its belief that disputes
over interpretation of the contract can best be
resolved through the use of the method provided for
in the contract itself, where such contract contains
grievance-arbitration procedures. We also set forth
fully the considerations which led us to that
conclusion. In the instant case, it is not necessary for
us to reiterate those considerations, but rather to
apply them to the present facts.
In article V of the contract made effective on June
18, 1970, the parties included a fully detailed
procedure whereby grievances concerning the mean-
ing, interpretation, or application of the agreement
shall be determined according to grievance machin-
ery, culminating in arbitration upon the failure of the
preceding steps of the procedure to resolve the
dispute.
Also included in the contract is a lawful union-
security provision, stating that, as a condition of
employment, an employee must be or become a
member of the Union the 30th day following the date
of the agreement, or following the beginning of such
employment, whichever is later. It is clear that any
obligation which the Respondent might have had to
abide by the request of the Union to discharge the
employees emanated from the union-security clause
in the contract. Absent such a clause, there would be
no obligation for the Respondent to effect the
discharges. Indeed, Respondent may well have been
e H & F Bench Co, 188 NLRB No 98, citing Anderson, Clayton & Co,
Foods Division, 120 NLRB 1208
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in violation of the Act had it acceded to such a
request absent the contract clause.
Because the dispute apses over the alleged failure
to honor the contract, we believe it is consistent with
Federal labor policy, and with the intent of Congress,
for the Board not to decide the controversy on its
merits but to defer to the grievance-arbitration
procedure provided by the parties in article V of the
contract.
The UD Election
The union deauthorization election in Case
14-UD-55, which was consolidated with the com-
plaint case , took place on November 13, 1970. The
Union challenged the ballots of Edith Defoe, Wynell
Defoe, Ben Sarver, Kathleen Sarver, Mae Schmidt,
Shirley Thome, and Peggy Posey, on the grounds
that these employees should have been discharged,
prior to the election, under the union-security
provision of the collective-bargaining agreement.
We have not decided the issue of whether these
employees should have been discharged under the
union-security provision of the contract, but have
deferred the matter to be resolved through the
grievance-arbitration provisions of the contract.
However, since these seven employees were in the
employ of the Employer on the date of the election,
and were therefore part of the unit for which the
election was conducted, we shall overrule the
challenges to them and direct that their ballots be
opened and be counted.
The Employer challenged the ballots of replaced
strikers Alma Buehler, Dorothy Cadwalender, Mil-
dred Campbell, Shirley Chaplin, Dora Donovan,
Wilma Kearby, Viola Loos, Lennie Norment, Har-
riet Romero, Mary Shepard, Carolyn Walts, and Iris
Wedig.
We agree with the Trial Examiner, for the reasons
given by him, that these replaced strikers were in the
unit and eligible to vote in the election conducted
within 12 months of the commencement of the strike.
We shall therefore overrule the challenges to their
ballots and direct that their ballots be opened and
counted. In agreement with the Trial Examiner we
shall sustain the challenge to the ballot of Marvin
Walts and shall not direct that his ballot be opened
and counted.
We disagree with the Trial Examiner' s recommen-
dation that the challenge to Thaycel Allison be
overruled. Allison received a letter of recall advising
him that a position was open in "plant maintenance"
and directing him to report to, work on October 5.
We believe that had Allison thought that the work
being offered him was more in the line of equipment
maintenance, for which he was not capable, than in
the janitorial line of maintenance, for which he was
capable, he had an obligation to at least inquire of
the Employer what work would be expected of him.
Rather, Allison did not respond at all to the offer.
This we find to be a rejection of the reinstatement
offer. Further, we do not believe that the offer of a
job as "plant maintenance man" was an ambiguous
offer under the circumstances. We therefore sustain
the challenge to Allison and we will not direct that
his ballot be opened and counted.
REMEDY
Without prejudice to any party and without
deciding the merits of the controversy related to
Respondent's failure to discharge employees at the
request of the Union, we shall order that the
allegation in the complaint herein be dismissed, but
we shall retain jurisdiction for a limited purpose. We
are aware that the parties herein have not resolved
their dispute by the contractual grievance and
arbitration procedure and that, therefore, we cannot
now inquire whether resolution of the dispute will
comport with the standards set forth in Spielberg
Manufacturing Company.2 In order to eliminate the
risk of prejudice to any party we shall retain
jurisdiction over this dispute solely for the purpose of
entertaining an appropriate and timely motion for
further consideration upon a proper showing that
either (a) the dispute has not, with reasonable
promptness after the issuance of this Decision, either
been resolved by amicable settlement in the griev-
ance procedure or submitted promptly to arbitration
or (b) the grievance or arbitration procedures have
not been fair and regular or have reached a result
which is repugnant to the Act.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed; provided,
however, that jurisdiction in this proceeding is
hereby retained for the limited purposes indicated in
that portion of our Decision and Order herein
entitled "Remedy."
DIRECTION
It is hereby directed that the Regional Director for
Region 14 shall, pursuant to the Rules and Regula-
tions of the Board and within 10 days from the date
2 112 NLRB 1080
3 Collyer Insulated Wire, 192 NLRB No. 150.
SOUTHWEST ENGRAVING CO. 697
of this Decision , open and count the ballots of E.
Defoe , W. Defoe, P. Posey, B. Sarver , K. Sarver, M.
Schmidt , S. Thome, A. Buehler , D. Cadwalender, M.
Campbell, S. Chaplin, D. Donovan , W. Kearby, V.
Loos, L. Norment, H. Romero , M. Shepard, C.
Walts, and I . Wedig, and thereafter issue and serve
on the parties a tally of ballots, and issue the
appropriate certification.
IT IS FURTHER DIRECTED that Case 14-UD-55 be,
and it hereby is, referred to the Regional Director for
Region 14 for further proceedings pursuant hereto.
MEMBERS FANNING and JENKINS, dissenting:
We do not agree with our colleagues that the
dispute which arose over Respondent's refusal to
honor the request of the Union to discharge the
striker replacements is a matter better resolved
through the grievance-arbitration procedure provid-
ed for in the contract . Nor would we dismiss those
allegations of the complaint for that reason.
In separate dissents in Collyer Insulated Wire,4 we
fully explained our beliefs that the Board should not
abdicate the authority given to it by Congress under
Section 10(a) of the Act to resolve unfair labor
practices , merely because the contract between the
parties happens to contain grievance-arbitration
provisions . These need not be reiterated here,
especially as this case does not fall within even the
outermost limits of the Collyer opinion.
In contrast to the majority position herein, it is our
opinion that the dispute between Respondent and
the Union does not evolve from an interpretation of
the union -security clause of the contract , but rather
from an interpretation of the law . In its letters of
August 25 and 26 and October 21, 1970, wherein the
Respondent refused to discharge the individuals
named by the Union as having failed to join the
Union, Respondent gave as its reasons:
"Please be advised that a UD petition has been
filed with the National Labor Relations Board case
No. 14-CA-5743."
"Until such time as the National Labor Relations
Board disposes of this matter the Company must
refrain from taking any action which might be
construed as an unfair labor practice."
At a meeting between Respondent 's officials and a
representative of the Union, on September 24, 1970,
Respondent restated the same reason for not
honoring the Union's request.
Clearly, Respondent 's refusal to honor the union-
security clause was not based on its interpretation of
the union-security clause, but rather on its own
interpretation of Board law and policy. A determina-
tion as to Respondent 's propriety in so interpreting
these is not a question which can properly be placed
before an arbitrator . The "expertise" in this situation
is certainly not the unique province of an arbitrator.
Under Section 8(d) of the Act, the duty to bargain
collectively means that no party to a collective-
bargaining agreement shall terminate or modify that
agreement except under specified conditions. Such
unauthorized modification or termination of the
contract constitutes a refusal to bargain under
Section 8(a)(5). Respondent's actions herein definite-
ly did have the effect of not only modifying the
contract, but terminating a clause in the contract.
Whether such a modification or termination of the
contract , under the circumstances present herein,
violated the Act, is a determination which Congress
not only authorized, but obligated the Board to
make , regardless of whether such a violation may
also have been a breach of contract subject to
remedy in the courts.
Further , the majority is herein deferring the dispute
to be resolved under the grievance procedure, when
in fact the grievant may be powerless under that
procedure to submit the dispute . Under article V,
section 1, of the contract , it is clear that an employee
has a right to file a grievance through the grievance
procedure, but it does not state that a union has such
a right . Further , section 2 of article V recites the
obligation to bring a grievance within 10 working
days (5 working days in a case involving discharge),
following the incident causing the grievance "or it
will be considered void as a grievance."
At the September 24 meeting between the parties,
following the Union's September 4 statement of
intent to file a grievance , Respondent showed its
intent to rely upon the time limitation of section 2 of
the grievance procedure . At that time, Respondent's
official stated that the Union was late in bringing the
grievance , as it should have been submitted by July
29. The Union thereafter did not pursue the matter
any further under the grievance procedure.
In view of the parties ' reluctance to resolve the
dispute under the grievance procedure ; the presence
of a real question as to whether the dispute can be so
resolved ; and, most significantly, the fact that the
dispute does not involve an interpretation of the
contract , we believe that the majority is in error in
refusing to decide this case on its merits, and in
dismissing the complaint.
We are in agreement with the Trial Examiner, for
the reasons given by him , that Respondent violated
Section 8(a)(1) and (3) of the Act by hiring Peggy
Posey on August 17, after the strike had terminated,
rather than recalling a striker to work . The majority's
reliance on H. & F. Binch Co. 5 and that line of cases
is misplaced under the circumstances of the instant
4 192 NLRB No 150
5 188 NLRB No. 98.
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
case. In Binch (where we constituted the majority),
the employer actively recruited the' replacements
during the strike to do the work of the strikers. Also,
there was only a short time between the recruiting
and the start of work by that replacement, although
the strike had terminated in the interim.
In the instant case, Peggy Posey was promised a
job in February, while the strike was in progress, not
because Respondent intended to use her as a
permanent replacement for a striker, but because it
was necessary to give her a job in order to secure her
husband's services as a supervisor. Although Mrs.
Posey's husband began work in July, she did not
begin until August 17 (2 months after the strike
terminated).
We stated in Binch that the question of what
constitutes a real commitment will vary with the
circumstances of each situation. Under the present
circumstances, we do not believe Respondent's
commitment in February to Posey made her a
legitimate replacement for a strikers
6 As we would find that Peggy Posey should not have been hired on
August 17, we would also not count her ballot in the election of November
13
Also, as we have not herein decided on its merits the dispute involving
the application of the union-security clause, we do not decide whether the
ballots of those employees whose discharge was requested should be opened
and counted
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GORDON J. MYATT, Trial Examiner: Upon a charge filed
on August 14, 1970,1 by International Brotherhood of
Bookbinders, AFL-CIO (hereinafter called the, Union)
against L.E.M., Inc., d/b/a Southwest Engraving Co. and
Towell Printing Co. (hereinafter called the Respondent),
and upon an amended charge filed August 26, a complaint
and a notice of hearing was first issued by the Regional
Director for Region 14 on September 30. A series of
amended charges were filed over the following months and
the Regional Director caused the complaint to be amended
accordingly. A union-security deauthorization petition was
filed on August 13 by Shirley L. Thorne, an individual, in
Case 14-UD-55 and an Order directing an election was
issued on October 27. The election was held on November
13 and all voters were challenged variously by the Union,
the Respondent, and the Board agent conducting the
election. On February 12, 1971, the Union filed a third
amended charge and on February 16, 1971, the Regional
Director issued an amended complaint and notice of
hearing. Finally, on February 17, 1971, the Regional
Director issued a Report on Challenged Ballots and an
Order consolidating the unfair labor practice case with the
union-security proceeding and directed that all matters be
heard and resolved by a Trial Examiner.
This consolidated proceeding was tried before me in St.
Louis, Missouri, on March 22 and 23, 1971. All parties
were represented by counsel and afforded full opportunity
,to be heard and to introduce relevant evidence on all of the
tissues involved. Briefs were submitted by all counsel and
they have been fully considered by me in arriving at any
decision in this matter.
Upon the entire record herein, including my evaluation
of the testimony of the witnesses, based upon my
observation of their demeanor and upon consideration of
the relevant evidence pertaining thereto, I make the
following:
FINDINGS OF FACT
I. JURISDICTIONAL FINDINGS
The Respondent is a Missouri corporation engaged in
the business of manufacturing , selling, and distributing
steel die engraving and embossing printing .2 The Respon-
dent's plant is located in a section of the city of St . Louis,
Missouri, described as Forest Park . During the year ending
December 31, 1969 , the Respondent in the course and
conduct of its business operations purchased and caused to
be delivered to its Forest Park plant materials and supplies
valued in excess of $50 ,000; a major portion of which were
delivered and transported to the plant directly from points
located outside the State of Missouri . The balance of the
materials and supplies were received from other enterprises
located within the State of Missouri , but were delivered to
said enterprises directly from points located outside of the
,State.
The Respondent admits , and I find , that it is and has
been at all times material herein, an employer within the
( meaning of Section 2(6) and (7) of the Act.
r
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Bookbinders , AFL-CIO, is
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Major Issues To Be Resolved
The major issues presented by this consolidated proceed-
ing basically are:
1. Whether on the basis of the facts detailed below the
Respondent violated Section 8(a)(5) of the Act by refusing
to discharge, upon request by the Union, employees hired
as permanent strike replacements because they failed to
oin or tender union dues pursuant to union-security
provisions contained in the collective-bargaining agree-
ment.
2. Whether the Respondent violated Section 8(a)(3)
and (1) of the Act by failing to discharge the strike
replacements pursuant to the union-security clause and
recall strikers on whose behalf the Union made an
i Unless otherwise indicated, all dates herein refer to 1970
2 The complaint alleged that the Respondent was also engaged in
letterpress and offset punting, but the evidence indicated that the
Respondent disposed of all of its letterpress and offset machinery and was
no longer engaged in this kind of work.
SOUTHWEST ENGRAVING CO. 699
unconditional offer to return to work after the termination
of an economic strike.
3. Whether the Respondent violated Section 8(a)(3)
and (1) of the Act by allegedly hiring an employee prior to
the termination of the strike when said employee did not
commence work until after the strike had ended.
4. The final issue concerns the eligibility of the strike
replacements and the strikers to vote in the union-security
decertification election held on November 13.
B. The Operative Facts
On September 2, 1969 , the Union was certified by the
Board as the exclusive collective -bargaining representative
for the employees of the Respondent.3 The Union and the
Respondent attempted to negotiate a collective -bargaining
agreement but were unsuccessful and the employees went
on strike on November 20, 1969 . Prior to the strike the
Respondent 's operation consisted of both offset and
letterpress printing and engraving and embossing work.
The shop personnel consisted of approximately 20 employ-
ees plus the plant superintendent . The Respondent's
president , Lester E . Matt, also performed many duties in
the shop . The plant superintendent, Kirkland, was a
salaried employee who had been hired approximately a
month before the strike commenced . In terms of responsi-
bility, experience and duties in the shop the personnel prior
to the strike were:
Marvin Waits-Waits was the Respondent 's most experi-
enced pressman and capable of operating and setting up
any machine in the plant . In addition to setting up work,
Waits could mix any kind of ink and handle any kind of
operation required of a pressman . Because of his experi-
ence and ability the Respondent relied upon Waits to set
up the work for other employees and to troubleshoot when
the other employees were having difficulty with their
machines or work .4
Lennis Norment-Norment was an hourly paid employee
who had a number of duties . He handled the papercutting
operation in which stock was cut down to the size needed
for a particular job. Matt also performed this operation on
occasion . In addition Norment was an experienced layout
man and thoroughly familiar with all of the machinery in
the plant . Approximately 65 percent of Norment's time
was devoted to repairing the various presses and maintain-
ing the plant equipment . Norment was also responsible for
seeing that the plant was cleaned up on Saturdays.5
Larry Miller-Miller was an offset pressman who was
being trained prior to the strike as a cameraman producing
plates for the Respondent 's lithographic operation.
3 The bargaining unit was described in the certification as follows
All production and maintenance employees, including porters, shipping
and receiving clerks and truckdnvers at the Employer's St Louis,
Missouri, facilities excluding office clerical employees , guards, watch-
men, professional employees, salesmen and supervisors as defined in
the Act
Matt testified that he considered Waits a supervisor because he could
assign work to other employees Waits was an hourly paid employee, and
from his testimony it is evident that he was a leadman at best The other
employees looked to him for assignment of work if their jobs were
completed or for assistance when they ran into difficulty Beyond this Waits
had no other authority over the employees and asserted none of the
responsibilities normally associated with one in a supervisory position For
this reason , I do not credit Matt 's testimony that Waits was a supervisor and
Garry Crayne-This employee was an apprentice press-
man with little or no experience in the trade. He was only
employed a week prior to the strike.
Ben Sarver-This employee was an embossing pressman.
He was capable of setting up presses and mixing certain
kinds of ink. His experience was not nearly as extensive as
that of Waits.
Carolyn Waits-The wife of Marvin Waits. She was
originally hired by the Respondent as an embossing press
feeder. Sometime prior to the strike this employee was
being instructed by her husband on how to set up and
change the dies on the larger embossing presses. At the
time of the strike she was able to perform these setup duties
without direct supervision, except for inspection of her
work as it was being run.
Anna S. Chaplin-This employee was an embossing press
feeder who had prior experience with other engraving
companies before working for the Respondent. She
devoted the majority of her time on the smaller presses on
which letterheads were run and was capable of setting up
these machines and changing the die wipes. Chaplin could
also mix certain basic inks, although she could not change
colors.
Harriet Romero-A press feeder who was also trained to
set up the automatic hand feeding machines. This
employee, along with C. Waits and Chaplin, was being
trained by the Respondent prior to the strike to do set up
work.
Mary Shepard-An embossing press feeder who was also
being trained to do setup work and was able to set up the
smaller presses.
Alma Buehler-An inspector and packer who also helped
to gather the product together for shipping. In addition to
these duties, Buehler ran the automatic feed machine and
was able to set it up and change the dies.
Kathleen Sarver-a press feeder and inspector. She was
apparently capable of performing limited setup duties.
Iris Wedig-An inspector and a packer who also was a
feeder on the letterpress machinery.
Dorothy Cadwalender, Viola Loos, Wilma Kearby-These
three employees were embossing press feeders and inspec-
tors. They were not capable of setting up the presses, but
fed the stock into the machines and inspected the finished
product; their own as well as that of others.
Mildred Campbell, Dora Donovan- These two employees
were primarily inspectors of engraving work and they
performed a duty called "catching." This consisted of
gathering work and laying it out separately to dry before it
iwas bundled for shipment.
find that he was simply a more experienced employee who acted in the
capacity of a leadman in the plant.
5 As in the case of Waits, the Respondent claimed that Norment was a
supervisor It is evident from Norment's testimony and from Matt's
description of his duties, that this employee was not a supervisor Because of
his ability to repair the machinery and keep it operating and because of his
skill as a layout man, it was apparent that the employees relied on Norment,
as they did Waits, when they were having difficulty or when the machines
were not operating properly In my judgment , this does not make Norment
a supervisor . The fact that he was responsible for seeing that the plant was
cleaned on Saturdays simply indicates that he may have asserted some
supervisory authonty over a few employees once a week This is not
sufficient, however, to make him a supervisor within the meaning of the Act.
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Victoria Nash-An apprentice feeder on the embossing
machines who also performed the gathering work. At the
time of the strike Nash was being taught to perform limited
'setup work.
Thaycel Allison-An employee of limited capabilities
whose primary function until September 1969 was to make
pickups and deliveries. The Respondent cut back on this
operation in September 1969, and required customers to
bring and pick up their work. Allison then worked as a
general handyman, assisting in packaging material for
shipment by United Parcel and performingjamtorial duties
around the plant.
Two other employees, Britton and Martin, worked in the
shop prior to the strike. However, at the trial the parties
agreed to strike the names of these employees and there is
no evidence as to what their duties were in the plant.
Another employee, Mildred Myers, was a press feeder
prior to the strike. After the strike started, Myers, who
continued to work in the plant, was made a supervisor.
The strike against the Respondent lasted until June 18.
Prior to the termination of the strike Ben and Kathleen
Sarver abandoned the Union's cause and returned to work
for the Respondent. The Respondent also hired permanent
replacements for some of the striking employees while the
strike was in progress. The replacements were Edith Defoe,
Wynell Defoe, Mae Schmidt, and Shirley Thome. Each of
these individuals were hired as embossing press feeders and
inspectors. In an effort to get additional working capital
the Respondent sold all of its offset and letterpress
equipment to another printing concern located in the same
building. The Respondent had no control or interest in the
company that bought the machinery and completely
discontinued the offset and letterpress printing operations.
Matt testified that the business declined during the strike
and did not pick up until shortly before December, due to
Christmas card work. He stated it then dropped after the
seasonal work and only picked up temporarily at the time
of the trial. According to Matt, the gross sales of
Respondent in 1970 were $130,000 as contrasted to
$186,000 in 1969. In order to adjust to the decline in
business Matt first reduced the workday from 8 hours to 7
hours. He subsequently reduced the workweek from 5 to 4
days. He did not, however, lay off any of the replacement
employees .6
In February, while the strike was still in progress, Matt
interviewed an experienced pressman who was then
employed by an engraving firm in Tennessee. This
pressman, Robert Posey, was applying for a supervisory
position in the plant. Matt testified that he hired Posey but
agreed that he would not report to work until it was time
for him to take his summer vacation on his current job.
Matt stated that he agreed to these terms because it was the
practice of Posey's then employer to give annual bonuses
6 This contrasted to the policy followed by the Respondent prior to the
strike When business was slow the Respondent normally laid off the junior
employees and recalled them when the work increased
7 Although the International Union is the Charging Party herein, the
contract was signed by the Respondent, the International Union, Local 18
of the International Union (which handled the male employees), and
Bindery Women's Union Local No 55, of the International Union (which
dealt exclusively with female employees in the unit). For the sake of brevity
in this decision, the two constituent Locals and the International Union will
be referred to collectively as "the Union "
to the employees when they went on vacation. In order not
to forfeit the bonus, Posey insisted that he would not
assume duties at the Respondent's plant until he was
scheduled to go on vacation. It was also arranged between
Posey and Matt that Posey's wife, who likewise worked for
an engraving concern in Tennessee, would be hired by
Matt. Posey began working for the Respondent in July as
one of the supervisors in the plant. He had authority to
hire, discharge, and assign work and was a salaried
employee.
On June 18 the Union terminated the strike and met with
Matt in order to negotiate a collective-bargaining agree-
ment . Matt testified that the union officials asked him for a
list of the replacements who had been hired during the
strike. They also told Matt that the strikers were ready to
return to work but that a few would not be available. Matt
testified that he informed the Union that he had hired two
people from out of town who had to wind up their affairs
and would report to work at a later date. He was referring
to Robert and Peggy Posey.
Matt met with the union officials on June 24 at which
time a collective-bargaining agreement was signed.? This
agreement contained a union-security clause which re-
quired all employees in the unit to be or become members
of the Union and to maintain a union membership in good
standing as a condition of continued employment. The
contract also contained a management rights clause.8 Matt
also testified that he informed the Union at that time that
two other individuals had been hired by Myers and that he
was not aware of this on June 18. These individuals were
informed by Myers that they would be called to work by
the Respondent at a later date. It subsequently developed
that neither of these individuals were ever told to report to
work by the Respondent.
On July 31, Timmermann, secretary-treasurer of Local
18, sent a letter to Matt listing the names and current
addresses of the striking employees who were available to
return to work. Matt testified that he did not receive the
Union's letter, however I do not credit him in this regard.
To the contrary, I find that Matt requested the information
and did in fact receive the Union's response.
On August 13 a UD petition was filed with the Regional
Office by employee Shirley Thorne. The purpose of this
petition was to request an election concerning the desire of
the unit employees to rescind the union security provisions
contained in the collective-bargaining agreement executed
June 24.
On August 17, Peggy Posey began working for the
Respondent. She was hired as an embossing press feeder
8 The management rights clause stated as follows-
The management of the Company's plant, including the right to
relieve employees from duty for lack of work or other justifiable causes
and to discipline and discharge for just cause (subject to Article V of
this Agreement ), to hire , promote , transfer and assign employees to
their duties, to direct the working force, to plan and schedule
production , to determine what constitutes efficient plant operation, to
adopt and enforce responsible plant rules and regulations , is vested
exclusively in the Company, except as modified by this Agreement
[Article V related to the grievance procedure].
SOUTHWEST ENGRAVING CO.
and inspector. However she was also capable of operating
a pantograph machine 9 and the Respondent utilized her
services on this equipment as well. Matt testified that the
regular engraver to whom he subcontracted his work was
ill, and he decided to use P. Posey on the pantograph in
order to reduce the backlog of engraving work. Under
examination by Counsel for the General Counsel he stated
that Posey spent a small percentage of her time on this type
of work. On direct examination by his own counsel,
however, Matt testified that Posey spent 80 to 90 percent of
her time in the engraving room. Other than Matt's
conflicting testimony, there is no evidence concerning the
amount of time spent by this employee on the pantograph
as contrasted to the amount of time she worked as a feeder
and inspector.
On August 20, Timmermann sent a letter to Matt
advising him that Malone 10 and Ben Sarver had not joined
the Union pursuant to the collective-bargaining agreement
and had failed to tender an initiation fee and periodic dues.
The Union asked the Respondent to immediately dis-
charge these individuals. On August 25, the Respondent,
both at a meeting with the union officials and by way of a
letter, refused to accede to the request to discharge Malone
and Sarver. The Respondent stated that a UD petition had
been filed and until the matter was disposed of by the
Board it would refrain from taking any action which
"might be construed as an unfair labor practice."
Also on August 25, the secretary-treasurer of Local 55,
Shanahan, sent a similar letter to Matt requesting the
discharge of Thome, Wynell Defoe, Edith Defoe, Schmidt,
Hodgins, and Kathleen Sarver. The Respondent replied to
this request the following day in a letter stating that it
would not discharge the employees for the reason that the
UD petition had been filed and was pending before the
Board.
Malone, who was performing the janitorial work around
the plant left the Respondent's employ sometime in
August. The Respondent hired a succession of high school
students to come in on Saturday to clean up the plant and
perform janitorial work. On September 4, Timmermann
and Shanahan sent a joint letter to Matt stating that the
Respondent was not paying the employees the wage rates
set forth in the collective-bargaining agreement and had
refused to effect the discharge of the employees requested
by the Union. The letter stated that it was the intent of
both Locals to grieve the matter under the contract. Matt
subsequently met with the union officials on September 24,
but they were unable to arrive at any agreement on the
matter.
On September 14, Kiser, a pressman hired in March
during the strike, left the Respondent's employ. On
September 30, R. Posey sent a letter to Allison stating that
9 The pantograph was located in the engraving room It was used to
reduce designs from master plates to smaller die for use on presses This
equipment had not been operated by unit employees prior to the strike as
the Respondent subcontracted out its engraving work
10 Malone was a student who worked on Saturdays performing janitorial
work However on July 6, Malone, who was then out of school, apparently
became a full-time employee performing the duties which had been
performed by Allison prior to the strike
11 Allison testified that he understood the letter to mean that the
Respondent wanted him to work as a maintenance man on the presses and
701
the Respondent had an opening for a " plant maintenance
man." Allison was asked to report to work on October 5.11
Myers sent a recall letter to Marvin Waits on October 3
informing him that the Respondent wanted him to report
to work immediately upon receipt of the letter. Waits
responded in a handwritten note stating that he had found
other employment and did not wish to return to work for
the Respondent at that time. The Respondent then hired
another pressman, Jones, who later quit.i2
On October 15 Shanahan sent a letter to Matt requesting
the discharge of Peggy Posey. The Union' s letter was
similar to the prior letters and the stated reason for request
was that Posey had not joined the Union. Matt replied to
the Union's letter on October 21 and refused to discharge
Posey for the reasons stated previously in response to the
prior discharge demands.
On November 13 the UD election was held in the plant.
The Union challenged the ballots of E. Defoe, W. Defoe,
Peggy Posey, Ben Sarver, Kathleen Sarver, Schmidt, and
Thorne. The Union's challenges were based on the fact that
these employees should have been discharged under the
umon-security provision of the collective-bargaining agree-
ment. The Employer challenged the ballots of 12 of the
striking employees who appeared to vote. The Employer
took the position that the strike had terminated on June 18,
prior to the election and the strikers were ineligible to vote,
even though they may have been entitled to be placed on a
preferential hiring list.13 In addition to the 12 strikers
challenged by the Employer, two other strikers appeared
and their ballots were challenged by the Board Agent.
These individuals were Marvin Waits and Thaycel Allison.
The Board Agent challenged these two individuals because
their names were not included on the eligibility list
containing the names of strikers and replacements supplied
by the Employer. These two individuals were left off the
eligibility list because the Employer contended that they
had been offered reinstatement and refused.
C. The Contention of the Parties
The General Counsel contends that when the Respon-
dent refused to abide by the Union's request to discharge
employees who had not joined the Umon it failed to give
effect to the union-security clause contained in the
collective-bargaining agreement. It is contended that this
failure was a unilateral modification of the agreement
during its term which had a substantial impact on the unit.
According to the General Counsel's theory, the unilateral
modification constitutes a refusal to bargain with the
Union and violates Section 8(a)(5) of the Act. The General
Counsel also contends that the Respondent should not
have hired Peggy Posey after the termination of the strike.
Rather that the work which she performed should have
other equipment He testified that this was work which had previously been
performed by Norment and that he did not respond to the letter because he
knew he was not capable of doing this kind of work
12 Matt testified that he did not hire any other pressman after Jones left
nor did he attempt to recall any of the other strikers He stated that the
other strikers were not qualified pressmen in his judgment and he decided
that he would make do with the personnel he had in the shop.
13 The strikers challenged by the Employer were Buehler, Cadwalender,
Campbell, Chaplin , Donovan , Kearby, Loos, Norment, Romero, C Waits,
Wedig, and Shepard.
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been performed by a recalled striker since an uncondition-
al offer to return to work was made by the Union on behalf
of the strikers. General Counsel further contends that by
failing to discharge the replacement employees pursuant to
the Union's request and by failing to recall the strikers to
the jobs occupied by the replacement employees, the
Respondent violated Section 8(a)(3) and (1) of the Act.
This failure is cited as evidence of the Respondent' s intent
to infringe upon the right of employees to strike and
discriminates against them for engaging in lawful concert-
ed activity.
The Union adopts the General Counsel's theory but goes
a step further. The Union contends that the Respondent
violated Section 8(a)(1) and (3) by reassigning unit work to
supervisors and changing its layoff procedure in order to
avoid its obligations to recall strikers who had offered to
return to work. The Union also takes the position that the
replacement employees should have been discharged
pursuant to the Union's request for the reason that they
did not become members of the Union under the terms of
the union-security provision in the contract and hence
these employees were not entitled to vote in the election on
November 13, 1970.
The Respondent offers numerous arguments to demon-
strate that its conduct did not violate the Act. First, the
Respondent takes the position that the Board is without
jurisdiction to determine whether it had breached the
collective-bargaining agreement by refusing to discharge
the employees on the Union's request because this would
require passing judgment on a substantive term of the
collective-bargaining agreement. The Respondent takes a
position that the Board is precluded from acting in this
fashion.14 In conjunction with this argument the Respon-
dent states that the Union should have followed the
grievance procedure and the Board should defer to the fact
that the collective-bargaming agreement contains a method
whereby the parties could resolve their differences under
the contract; especially since it relates to a provision
contained in the agreement. In addition, the Respondent
contends that it was under no duty to discharge the
employees as requested by the Union because the Union
failed in its fiduciary duty to notify these employees of
their obligation under the terms of the contract. Having
failed to do so, Respondent contends that the employees
were not required to join the Union or pay dues. Hence,
the failure to discharge employees for this reason was not
unlawful. The Respondent also contends that it did not
violate Section 8(a)(3) of the Act by hiring P. Posey after
the termination of the strike . It is argued that this employee
was in fact hired prior to the termination of the strike, even
though she did not report to work until after the strike
ended. Further that Posey performed duties which were
not performed by employees in the bargaining unit and
could not be consider a replacement. Finally, Respondent
offers the argument that the strikers were not eligible to
14 The Respondent cites H K Porter Co, Inc v. N LR B, 397 U .S 99, as
support for this contention.
15 N L R B v Hotel, Motel and Club Employees' Union, Local 568,
AFL-CIO [Philadelphia Sheraton ], 320 F 2d 254, 258 (C.A. 3, 1963), enfg.
136 NLRB 888 Accord N L.R B v Local 182, International Brotherhood of
Teamsters [Associated Transport, Inc], 401 F 2d 509 (C A 2, 1968), cert
denied 394 U.S 213, enfg 156 NLRB 335, amended 169 NLRB 1143;
vote in the UD election because all of the legislative history
and the statute itself relates to representation elections and
not to union-security deauthonzation elections . According
to the Respondent 's theory, since nothing was said in the
legislative history or in the Act relating to Section 9(e)
which authorizes rescinding union -security provisions, it
was not intended that strikers be eligible to vote in such an
election.
Concluding Findings
I find no need to go into all of the extensive arguments
offered by all counsel to arrive at my decision in this case.
It is clear that the threshold issue to be resolved here is
whether the Respondent violated Section 8(a)(5) of the Act
by refusing to discharge the replacement employees who
did not join the Union. The resolution of this question
resolves much of what is alleged by Counsel for the
General Counsel to constitute other violations in this case.
Commencing at this point, I reject the Respondent's
argument that under H.K. Porter, supra, the Board is
without jurisdiction to act on the failure of the Respondent
to comply with the union-security provision of the contract
because it involves a matter of contract interpretation. It
has been held that a union-security provision is a valid
term and condition of employment, and to alter such a
provision by unilaterally failing to give effect to it, in
certain circumstances, constitutes a violation of Section
8(a)(5) and (d). Montgomery Ward & Co. Inc., 162 NLRB
369, 381-382. Therefore, while it may be a breach of
contract actionable elsewhere, it is also within the purview
of the Board's jurisdiction to be considered as a violation
of the Act.
However, to establish that such a violation has occurred
it is necessary to prove more than a mere failure to
discharge an employee upon request by a union. It has
been held repeatedly by the Board and the courts that a
fiduciary responsibility rests with the union seeking to
enforce a union-security provision against an employee.
This duty places a responsibility upon the union to "deal
fairly" with the employee affected, and requires as a
minimum that the union inform the employee of his
membership obligation under the terms of ',the contract in
order that the employee may take whatever action is
necessary to protect his job tenure.15 As the Board stated
in the Philadelphia Sheraton case , "when a Union requires a
new employee to perfect membership under a lawful
union-security agreement, it has a duty to notify the
employee, at some point, as to what his membership
obligations are. To permit a union to lawfully request the
discharge of an employee for failure to meet his dues-
paying obligations, where the provisions relating to such
obligations are not disclosed to the employee [by the
General Truck Drivers, Chauffeurs, Warehousemen and Helpers Local 270,
IBT (Bulk Transport, Inc), 186 NLRB No 47, Teamsters Local Union No.
122, IBT (August A Busch & Co of Mass., Inc), 173 NLRB 1283, Granite
City Steel Company, 169 NLRB 1009, Building Construction, Highway
Pavers, Sewer and Tunnel Workers Union, Local No 113 (James Luterbach
Construction Co, Inc), 167 NLRB 39
SOUTHWEST ENGRAVING CO.
Union], would be grossly inequitable and contrary to the
spirit of the Act." 16 Nor can this fiduciary responsibility be
passed on to the Employer, for it is a responsibility which
rests solely with the Union. Building Construction Union,
Local 113, supra, 41.
The facts in the instant case show that this "minimum
fiduciary" responsibility was never met. Other than an
attempt by the Counsel for General Counsel, through
cross-examination, to get Matt to admit that two employ-
ees questioned him about the obligations under the
contract (which Matt denied), there is no probative
evidence in this record that any of the replacement
employees received notification from the Union regarding
their obligations under the union-security provisions of the
agreement. This is true in spite of the fact that Timmer-
mann, secretary-treasurer of Local 18, was called upon to
testify concerning the Union's request for reinstatement of
the striking employees. At no time was Timmermann, or
any one else, questioned by counsel for the General
Counsel regarding notice to the replacement employees of
their membership obligations to the Union. By failing to
meet these minimum requirements the Union never
perfected a lawful request that the replacement employees
be discharged for failing to abide by the terms of the
union-security provisions in the contract.
It follows, therefore, that the Union's request for the
discharge of the employees for failing to meet their
obligations under the union-security provision was neither
valid nor lawful and the Respondent's refusal to accede to
the request, in these circumstances, can not be considered a
violation of the Act. Accordingly, I find that the theory of
the counsel for the General Counsel must be rejected and I
further find that the Respondent did not violate Section
8(a)(5) of the Act by refusing to discharge the replacement
employees pursuant to the Union's request.
Having found that the Respondent was under no duty to
discharge the replacements in these circumstances, the
allegation that the Respondent violated Section 8(a)(3) of
the Act by discriminating against the striking employees by
not discharging the replacements and recalling the strikers
must also be dismissed. If the Respondent had no
obligation, as I have found, to discharge the replacements,
there were no openings available for the striking employ-
ees. Since the Respondent hired the employees as perma-
nent replacements for the strikers in order to continue the
operation of its business, it was not bound to discharge
them in order to create vacancies for strikers wishing to
return to work. N.L.R.B. v. MacKay Radio & Telegraph
Co., 304 U.S. 333, 345-346 (1938); C.H. Guenther & Son,
Inc., d/b/a Pioneer Flour Mills, 174 NLRB No. 174, enfd.
427" F.2d 983, 985 (C.A. 5, 1970). Accordingly, I find that
the Respondent did not violate Section 8(a)(3) and (1) of
the Act by failing to discharge the replacement employees
as requested by the Union and recalling strikers to fill these
positions.
The complaint alleges that Respondent violated Section
8(a)(3) of the Act by hiring Peggy Posey on August 17
instead of recalling one of the senior striking employees.
The evidence indicates that when Matt interviewed her
husband for a supervisory position during the strike, he
703
agreed that he would also find a position for Posey's wife.
Although Posey did not report to work until July in order
to protect his bonus rights, Peggy Posey did not report
until August. Matt testified that Peggy Posey was a feeder-
inspector and that she possessed additional skills which
allowed her to operate the pantograph equipment in the
engraving room. He also testified that this equipment had
not been used prior to the strike because he contracted out
the engraving work. It is difficult to say on the basis of
Matt's testimony how much time Peggy Posey devoted to
the pantograph and how much of her time was spent on the
embossing press machines. What is evident, however, is
that Posey spent a portion of her time performing work
which would normally have been performed by one of the
strikers had the striker been recalled.
The mere fact that the Respondent agreed to hire Peggy
Posey in order to induce her husband to accept the
supervisory position in no way relieves the Respondent of
the statutory duty to recall a striking employee to fill a
position that has become vacant. The right of a striking
employee to reinstatement to a job which is available, and
for which the striker is qualified, can not be defeated by a
prior arrangement made by the Respondent in order to
secure the services of a supervisory employee. The critical
question then becomes whether Peggy Posey was perform-
ing work for which a striker was qualified. I find that she
was. The Respondent alleges that Posey's services were
needed on the pantograph because the engraver to whom
the Respondent had subcontracted work was ill. However
there is no showing on this record that the Respondent
attempted to subcontract this work, which was never a part
of the unit work in the first instance, to any other
engravers. I find therefore that the Respondent was using
Peggy Posey in dual positions as it saw fit, and that a
portion of her time was devoted to performing work for
which strikers were qualified. Thus I find that instead of
hiring Peggy Posey on August 17, the Respondent had an
obligation under the Act to reinstate one of the strikers as
an embossing press feeder and inspector. The failure of the
Respondent to do this had the effect of discouraging
employees from exercising their right to organize and to
strike as guaranteed by Section 7 of the Act, and violates
Section 8(a)(1). The failure to do so also violates Section
8(a)(3) because the Respondent was discriminating against
striking employees because of their activities on behalf of
the Union. Accordingly, I find that the Respondent did
violate Section 8(a)(1) and (3) of the Act, by hiring Peggy
Posey on August 17 and by failing to recall one of the
striking employees to perform the work which Posey was
now doing for the Respondent. The Respondent's attempt
to justify this action on the grounds that Posey was
operating the pantograph in the engraving room is not
pursuasive in these circumstances. N.L.R.B. v. Great Dane
Trailer, 388 U.S. 26, 34; N.L.R.B. v. Fleetwood Trailer Co.,
389 U.S. 375.
The Union contends in its brief that the Respondent also
violated Section 8(a)(1) and (3) of the Act by altering its
layoff policy and by allowing supervisors to perform work
which the striking employees had performed prior to the
strike. The Union contends that although these matters
16 Philadelphia Sheraton Corporation, supra, 896.
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were not alleged in the complaint they were fully litigated
at the hearing without objection by the Respondent and
hence provide the basis for the finding of the violation. I
find, however, that the record does not support the finding
of such a violation as urged by the Union. There is
testimony by Matt in the record that the Respondent's
business had declined substantially. Indeed, the work force
had decreased in size and the Respondent did not hire as
many replacements for the strikers as there were employees
on strike. The mere fact that some of the duties which had
been performed by striking employees were now being
performed by supervisory employees during a time when
business was slow is not sufficient to hold that the
Respondent was deliberately reassigning work in order to
avoid recalling striking employees. Nor does the fact that
the Respondent utilized short workweeks instead of layinrg
off as it had in the past when business declined indicate
that the Respondent was doing this to avoid recalling
striking employees. The decline in business and the
reduced work force following the termination of the strike
were sufficient justification, in these circumstances, for the
Respondent to utilize short workweeks instead of laying off
employees and for the Respondent to require supervisors
to do some of the work formally performed by employees
in the unit.
The UD Election
The Union challenged the right of the replacement
employees to vote in the election. Having found that the
Employer was not required to discharge the strike
replacements because the Union failed to satisfy its
fiduciary responsibility to these employees, I now find that
the basis for the Union's challenge to the ballot of six of
the replacements is without merit. Therefore, I shall
recommend that the challenges to the ballots of E. Defoe,
W. Defoe, B. Sarver, K. Sarver, Mae Schmidt, and Shirley
Thome be overruled and their ballots counted.
The challenge to the ballot of P. Posey presents a
different set of circumstances. I have found above that this
individual was hired after the termination of the strike in
violation of Section 8(a)(1) and (3) of the Act. I have
further found that instead of employing this individual, the
Respondent was obligated under the Act to recall one of
the strikers. Thus, had Posey not been unlawfully hired she
would not have been employed in the bargaining unit and
available as a prospective voter in the election. Because I
have found that Posey should not have been hired in the
first instance and that a striker should have been recalled
by the Respondent, I shall recommend that the challenge
to P. Posey's ballot be sustained.
The Employer challenged the ballots of 12 of the
economic strikers on the grounds that they were perma-
nently replaced and not entitled to vote. In its brief the
Employer contended that although Congress in the 1959
amendments to the Statute gave economic strikers the right
to vote in representation elections, this right did not extend
to union-security deauthorization elections under Section
9(e), and more specifically the right did not extend to what
the Respondent described as "former economic strikers."
In this connection the Employer relies upon the Board's
decision in Martin Bros.17 There the Board held that
Congress intended by the 1959 amendments to Section
9(c)(3) "that a qualification of the right of economic
strikers to vote is that they be on strike at the time of the
election." Id., 1088. The holding in Martin Bros., decided
in 1960, appears to fly in the face of the philosophy of
more recent court and Board decisions dealing with the
rights of economic strikers. For example, in Fleetwood
Trailer the Supreme Court stated that under Section 2(3) of
the Act "an individual whose work has ceased as a
consequence of a labor dispute continues to be an
employee if he had not obtained regular and substantially
equivalent employment.18 The Court further held, citing
Great Dane Trailer, supra, that unless an employer "who
refuses to reinstate strikers can show that his action was
due to legitimate and substantial business justifications, he
is guilty of an unfair labor practice. The Board further
explicated its interpretation of the intent of the 1959
amendments in the Laidlaw Corporation case, 171 NLRB
No. 175. In that case the Board stated, "economic strikers
who unconditionally apply for reinstatement at the time
their positions are filled by permanent replacements: (1)
remain employees; (2) are entitled to full reinstatement
upon departure of replacements unless they have in the
meantime acquired regular and substantially equivalent
employment, or the employer can sustain his burden of
proof that the failure to offer reinstatement was for
legitimate and substantial business reasons."
Thus, it is clear that economic strikers who make an
unconditional application for reinstatement after the
termination of a strike continue to remain a part of the
bargaining unit. More recent application of this principle is
found in Pioneer Flour Mills 19 where the Board dealt with
the status of economic strikers in another context. In that
case the employer was charged with violating Section
8(a)(5) by refusing to deal with the union after an
economic strike had been terminated. The employer hired
permanent replacements and questioned the union's
majority status since it only considered the replacements
and the employees who refused to go on strike as
constituting members of the bargaining unit. The Board
held that the employer was in error and that the unit
consisted of all of the strikers who unconditionally offered
to return to work after the cessation of the`,strike. The
Board specifically stated that the strikers who made
unconditional offers to return to work, "maintained thier
status as economic strikers, and would have been permitted to
vote in an election conducted under Section 9 of the Act.,"
(Emphasis supplied.) The Board quoted extensively from
the legislative history 20 of the 1959 amendments to Section
9(c)(3) in which it clearly demonstrated that Congress
intended that in an economic strike of not more than 12-
month duration replaced strikers should be considered as
members of the bargaining unit for purposes of determin-
17 The Martin Bros Container & Timber Products Corp, 127 NLRB 1086. 20 See Legislative History of the Labor-Management Reporting and
18 N L.R.B v The Fleetwood Trailer Co, Inc, supra 378. Disclosure Act of 1959, pp 427-429,452, 1064-1065, 1070, 1138, 1919 The
19 C.H Guenther & Son, Inc d/b/a Pioneer Flour Mills, 174 NLRB No pre-1959 provisions were described as "an unfair, union busting rule."
174, enfd 427 F 2d 983, (C.A. 5, 1970).
SOUTHWEST ENGRAVING CO.
ing a union's majority status. The Board held that although
Section 9(c)(3) dealt with representation matters and the
eligibility of voters in a Board-conducted election, it was
"pertinent to a Section 8(a)(5) allegation in determining
whether an employer had a reasonable basis for question-
ing an incumbent union's presumed majority status." The
Board further stated, "to refuse to include economic
strikers in determining the representative status of the
Union during an economic strike of short duration would
permit a continuation of the abuses which the amendment
to Section 9(c)(3) was intended to correct."
By the same process of analogy, I find that the strikers in
the instant case maintained their status as economic
strikers after the Union made an unconditional offer on
their behalf to return to work following the termination of
the strike. To hold otherwise would be to condone the very
abuses of "union busting" that Congress dealt with
considering the 1959 amendments to Section 9(c)(3). While
it is true that there was no mention of Section 9(e) during
the consideration of the 1959 amendments, it is difficult to
conceive that Congress intended to liberalize the rights of
economic strikers in the representation area to prevent
destruction of a union during an economic strike, while at
the same time restricting the right of economic strikers to
participate in elections pertaining to rescinding union-
security provisions in an existing contract. Indeed, what
more effective way to "destroy a union" than to limit
participation to strike replacements and nonstrikers in such
an election. Accordingly, I find on the basis of Pioneer
Flour Mills and Laidlaw and the Supreme Court's holding
in Fleetwood Trailer that the Martin Brothers case has been
modified to the extent that the bargaining unit consists of
economic strikers, whether on strike or not, as well as strike
replacements and nonstrikers. I further find that it is of no
consequence that the strike had terminated so long as the
election was conducted within a 12-month period following
the commencement of the strike. I shall, therefore,
recommend that the challenges of the Employer to the
eligibility of the economic strikers who appeared to vote in
the UD election to be overruled and these ballots be
opened and counted.
The challenge by the Board agent to the ballot of Marvin
Waits presents no great problem. On October 6, Waits was
offered reinstatement and refused to accept it because he
had found other substantially equivalent employment.
Since the election was conducted after Waits had refused
reinstatement, it is clear that Waits can not be considered
an employee. N.L.R.B. v. Fleetwood Trailer Co., supra.
Accordingly I recommend that the challenge to Marvin
Waits' ballot be sustained.
The final ballot to consider is that of Allison. Although
Allison received a letter directing him to report to work on
October 5, there is serious question as to whether this offer
was sufficiently clear to be construed as directing him to
report to work in his former position. During the testimony
Matt made a distinction between janitorial maintenance
and equipment maintenance . However, Allison was offered
21 In the event no exceptions are filed to this Recommended Order
provided by Section 102.46 of the Rules and Regulations of the National
Labor Relations Board , the findings , conclusions, recommendations, and
Recommended Order herein shall, as provided in Section 10(c) of the Act
705
a position performing plant maintenance work. I find that
this offer was sufficiently ambiguous so that the employee
was unable to determine what type of work was being
offered to him. While it may have been wiser for Allison to
have contacted the Respondent, his failure to do so does
not, in my judgment, constitute a rejection of an offer
which was unclear in the first instance. I find, therefore,
that Allison never received a bona fide offer for reinstate-
ment from the Respondent because of the ambiguous
nature of the wording of the letter, and that he continued
to remain an employee in the bargaining unit entitled to
vote in the election. Accordingly, I recommend that the
ballot of Allison be opened and counted.
CONCLUSIONS OF LAW
1. The Respondent, L.E.M., Inc., d/b/a Southwest
Engraving Co. and Towell Printing Co., is an employer as
defined in Section 2(2) of the Act engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. International Brotherhood of Bookbinders,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent did not violate Section 8(a)(5) of
the Act by refusing to accede to the Union's request to
discharge strike replacements because they did not join the
Union or remit periodic dues to the Union as required by
the union-security provisions in the collective-bargaining
agreement.
4. The Respondent did not violate Section 8(aX3) and
(1) of the Act by refusing to discharge employees who did
not join the Union pursuant to the union-security provi-
sions in the collective -bargaining agreement and replace
them with striking employees who had terminated an
economic strike against the Respondent and on whose
behalf the Union made an unconditional offer to return to
work.
5. The Respondent did violate Section 8(a)(1) and (3)
of the Act by hiring an employee to perform bargaining
unit work after the termination of the economic strike and
after the Union made unconditional application on behalf
of the economic strikers to return to work.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in, and
is engaging in, certain unfair labor practices , I should
recommend the issuance of an order that it cease and desist
therefrom and that it take certain affirmative action
necessary to effectuate the policies of the Act.
Accordingly, upon the foregoing findings of fact and
conclusions of law and upon the entire record in this case,
pursuant to Section 10(c) of the Act, I make the following:
RECOMMENDED ORDER21
Respondent, L.E.M., Inc., d/b/a Southwest Engraving
and in Section 102.48 of the Rules and Regulations , be adopted by the
Board and become its findings, conclusions , and Order, and all objections
thereto shall be deemed waived for all purposes.
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Co. and Towell Printing Co., its officers, agents , successors,
and assigns , shall:
1. Cease and desist from:
(a) Hiring employees to perform work in the plant
instead of recalling economic strikers who have terminated
the strike against the Respondent and on whose behalf an
unconditional application to return to work has been
made.
(b) And in any like or related manner interfering with,
restraining , or coercing employees in the exercise of their
right to self-organization guaranteed by Section 7 of the
Act.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Discharge any employee hired after the termination
of the economic strike on June 18, 1970, and recall to any
vacancy created by said discharge an employee who had
engaged in the economic strike.
(b) Post at its St. Louis, Missouri, plant copies of said
notice attached hereto and marked "Appendix." 22 Copies
of the notice on the forms provided by the Regional
Director for Region 14, after being duly signed by the
Respondent's authorized representative, shall be posted
immediately upon receipt thereof, and maintained by it for
a period of 60 consecutive days thereafter in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken to
insure that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of receipt of this
Decision, what steps the Respondent has taken to comply
herewith.23
IT IS FURTHER RECOMMENDED that the challenges to the
ballots by the Union in the UD election be overruled and
the ballots be opened and counted. It is also recommended
that the Employer's challenges to ballots cast by striking
employees be overruled and that the ballots be opened and
counted. It is further recommended that the challenge by
the Board Agent to the ballot of Thaycel Allison be
overruled and that the ballot be opened and counted. In
addition, it is recommended that a challenge to the ballot
of Marvin Walts by the Board Agent be sustained for the
reasons cited in this decision.
IT IS FURTHER ORDERED that the allegations in the
complaint setting forth violations not specifically found
herein be dismissed.
22 In the event that the Board's Order is enforced by a judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board."
23 In the event that this recommended Order is adopted by the Board
after exceptions have been filed , this provision shall be modified to read:
"Notify the Regional Director for Region 14, in writing, within 20 days
from the date of this Order, what steps the Respondent has taken to comply
herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found, after a
trial before a duly designated Trial Examiner, that we
Violated Federal law by hiring an employee after the
termination of an economic strike instead of recalling a
striking employee to fill this vacancy, we hereby notify our
employees that:
WE WILL NOT hire new employees to work in our
plant instead of recalling employees who have ended
the strike against us and made application to return to
work.
WE WILL discharge any employee hired after June
18, 1970, and recall the most senior striking employee
who is available to work to fill the vacancy.
WE WILL NOT unlawfully interfere with, restrain or
coerce our employees in the exercise of their rights
guaranteed by Section 7 of the National Labor
Relations Act, as amended.
L.E.M., INC ., D/B/A
SOUTHWEST ENGRAVING
CO. AND TOWELL PRINTING
Co.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 210
North 12th Boulevard, Room 448, St. Louis, Missouri
63101, Telephone 314-622-4174.