Southwestern Pipe, Inc.

National Labor Relations Board - Board Decisions

Oct 28, 1969

179 N.L.R.B. 364 (N.L.R.B. 1969)

364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Southwestern Pipe , Inc. and United Steelworkers of
America , AFL-CIO. Case 23-CA-2465
October 28, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On August 14, 1968, Trial Examiner George
Christensen issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision The
Trial Examiner also found that the Respondent had
not engaged in certain other unfair labor practices
alleged in the complaint. Thereafter, the Charging
Party and the Respondent filed exceptions to the
Trial Examiner's Decision and supporting briefs,
and the General Counsel and the Charging Party
filed reply briefs.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed.' The rulings are
hereby affirmed The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner,' except as modified herein
The Trial Examiner found that Respondent's
employees went out on strike on July 12, 1966, and
continued on strike until September 9, 1966, when
the Union made an unconditional offer to return to
work on behalf of its striking members.
Subsequently, Respondent offered reinstatement to
the strikers either to their former jobs or to other
jobs with Brown and Root, a sister corporation. The
Union advised the Respondent that it would pass
'The Charging Party excepts to the Trial Examiner ' s dental of its motion
to amend the complaint to allege the discharge of James H Gray as a
violation of Sec 8 (a)(3) We find that the Trial Examiner did not abuse his
discretion in denying the motion
'At the hearing the Trial Examiner granted a motion to strike from the
complaint allegations that certain proposals made by Respondent during
the negotiating sessions , which provided for individual bargaining , violated
the Act The Trial Examiner appears to have relied , to some extent at
least, upon those proposals in concluding that Respondent did not bargain
in good faith , and Respondent excepts In view of the abundant evidence
regarding other conduct which supports the Trial Examiner ' s conclusions,
we find it unnecessary to pass upon this question , and do not rely upon the
advancement of these proposals
The Respondent excepts to the finding that the strike was an unfair
labor practice strike We do not agree However, even were the strike
economic at its inception , it was converted to an unfair labor practice
strike by Respondent 's letter of July 13, 1966, discharging the strikers
Respondent also excepts to the inclusion of R B Chreene in Appendix
A of the Trial Examiner ' s Decision Since R B Chreene ' s name was
stricken from the pleadings by stipulation of the parties, and the issue was
not fully litigated , we find merit in this exception Accordingly, we shall
order that R B Chreene ' s name be deleted from the list of strikers
entitled to reinstatement and backpay (Appendix A of the Trial Examiner's
Decision)
along job offers but that it was the Union's position
that the strikers were unfair labor practice strikers
and as such were entitled to immediate
reinstatement as a group, and that the Respondent
was required to discharge replacements to make
room for returning strikers. The Respondent, in
reply, stated that it viewed the strike as economic,
that it owed an obligation to the replacements, and
that it would return strikers to their former jobs as
openings became available and in the meantime
offered them temporary jobs with Brown and Root.
At least 57 of the strikers, when offered their former
fobs, replied with a form letter refusing
reinstatement until such time as all strikers were
offered reinstatement. Having found that the strike
was an unfair labor practice strike and that the
Brown and Root jobs were not substantially
equivalent, the Trial Examiner held that these offers
did not constitute offers of group reinstatement, that
unfair labor practice strikers are entitled to
immediate group reinstatement upon their
unconditional application to return to work, and
that, consequently, Respondent was not relieved of
backpay liability.
In reaching this conclusion, the Trial Examiner
relied on the Board's decision in Robert S. Abbott
Publishing Co.3 The Seventh Circuit Court of
Appeals denied enforcement of the Board's Order in
Abbott ° However , in Rice Lake Creamery Co.' the
Board noted its disagreement with the Court and
followed Abbott In Abbott the Board held that,
since unfair labor practice strikers are entitled to
immediate reinstatement as a group, offers of
reinstatement to individual strikers, or selected
numbers of strikers, did not constitute valid offers
of reinstatement and, consequently, did not toll an
employer's liability for backpay to those strikers to
whom such offers were made We have reconsidered
the Board's decisions in the Abbott and Rice Lake
Creamery cases and conclude, in accord with the
opinion of the Court of Appeals for the Seventh
Circuit, that those decisions should be reversed to
the extent they hold that the failure of an employer
to offer strikers group reinstatement subjects that
employer to backpay liability as to those employees
who have been offered and who have refused
reinstatement in favor of continuing their strike.
The law with respect to an employer's obligation
to reinstate to their former jobs economic or unfair
labor practice strikers who have made unconditional
applications for reinstatement is well settled.
Economic strikers who have been replaced are not
entitled to immediate reinstatement on demand, but
they must be offered jobs as these become available.
Unfair labor practice strikers must be returned to
their former jobs if these are still available even if
the employer must discharge replacements to make
'139 NLRB 1328, Member Fanning dissenting in pertinent part at 1330,
in 4
'331 F 2d 209 (C A 7)
'151 NLRB 1113
179 NLRB No. 52
SOUTHWESTERN PIPE, INC. 365
room for the returning strikers. An employer's
refusal to reinstate a striker who has made himself
available for work on an unconditional basis and
who is entitled to be returned to his fob constitutes a
violation of Section 8(a)(3) of the Act. A striker
may refuse an offer of reinstatement, without losing
his status as a striker, because the employer has not
made a similar offer to other strikers who are also
entitled to immediate reinstatement. The striker is
thereby engaging in protected concerted activity. But
he cannot elect to continue his strike, regardless of
his motive, and simultaneously demand that the
employer pay him for not working. As stated by
Member Fanning in his dissent in the Abbott
Publishing case (139 NLRB at 1330, fn 4):
The Act does not protect an employee from loss
of wages as the result of a strike even though the
strike was caused by an unfair labor practice An
employee who prefers concerted activity to the
status of a "strikebreaker" cannot sup at both
tables He cannot be unavailable for work to put
economic pressure on his employer to rectify a
wrong and at the same time receive full pay for
the job from which he has voluntarily absented
himself
As indicated above, however, employees do not
lose their right to reinstatement by engaging in a
continued strike to protest their employer's failure
to offer reinstatement to other strikers. They merely
revert to their status as unfair labor practice strikers
until such time as the employer accedes to their
demands or until they terminate the strike.
Our dissenting colleagues assert that the Board's
decision here "denies to each member of the group
the very protection the Act seeks to afford "
Apparently they misconstrue our holding. We do,
and shall continue to, protect the rights of all
strikers, both economic and unfair labor practice
strikers. In this case, the refusal to reinstate some of
the strikers was predicated on the employer's view
that they were economic strikers. (They had in fact
been replaced.) Because the employer was wrong,
and in fact the strike was caused by its unfair labor
practices, the employer again violated the Act by its
refusal. However, the rest of the employees chose to
remain on strike, rather than to accept the
employer's offer of reinstatement. They thus
continued their status as unfair labor practice
strikers, now protesting the unlawful refusal to
reinstate their fellow employees As such, they
remain protected, and are entitled to reinstatement,
upon request, whether or not they have been
replaced. In this respect, the case is no different
from an initial strike caused by, for example, a
discriminatory discharge of a single employee. When
such a strike occurs, it is protected, and because it is
also an unfair labor practice strike, the employer's
obligation to reinstate the strikers on their request
exists without regard to whether the strikers have
been replaced. But if the strikers continue their
strike after offering to return to work because the
discriminatorily discharged employee is not
reinstated at the same time, they are doing exactly
what they did in the first place, continuing to
protect by concerted activity the employer's unfair
labor practice. They have the right to do so; they do
not have the right to be paid while doing so That is
all we hold here.
Consequently, we find, contrary to the Trial
Examiner, that the Respondent's liability for
backpay to those strikers who refused its offers of
reinstatement at Southwestern Pipe in their former
or substantially equivalent jobs, was tolled by such
offers.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner and
orders that the Respondent, Southwestern Pipe Inc ,
Houston, Texas, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as herein
modified-
1. Delete paragraphs 2(c) and (d) of the Trial
Examiner's Recommended Order and substitute the
following-
"(c) Offer immediate and full reinstatement to
their former or substantially equivalent employment
with the Company to all strikers named in
"Appendix A," who have not heretofore been
restored thereto, and make each of them whole for
any loss of earnings they may have suffered by the
Company's September 9, 1966, refusal of their
unconditional application therefor from September
9, 1966, to the date of a valid offer of reinstatement,
in the manner set forth in this Decision."
"(d) Make whole all strikers named in Appendix
A, who have heretofore been restored to their
former or substantially equivalent jobs with the
Company, for any loss of earnings they may have
suffered by the Company's September 9, 1966,
refusal of their unconditional application therefor,
from September 9, 1966, to the date of a valid offer
of reinstatement, in the manner set forth in this
Decision."
2. Delete the name of R. B. Chreene from
Appendix A of the Trial Examiner's Decision.
MEMBERS BROWN AND JENKINS, dissenting in part
Contrary to, the majority we would adhere to
established policy and find that piecemeal offers of
reinstatement to unfair labor practice strikers are
not valid offers and hence do not toll the
Employer's backpay obligation with respect to those
strikers who rejected such offers.
The strike in this case was provoked by
Respondent's bad-faith bargaining and other unfair
`Robert S Abbott Publishing Co , supra, and cases relying thereon, are
hereby overruled to the extent inconsistent with this decision
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor practices It began on June 12, 1966. The next
day Respondent discriminatorily discharged all
participants in the strike. On September 7 and 8,
1966, the strikers offered to return to work.
Respondent met their application by indicating that
it would not terminate replacements hired during the
strike but that it would reinstate the
strikers as vacancies occurred Thereafter, when
Respondent offered jobs to certain strikers, several
rejected the offers, insisting upon their right to
group reinstatement. As to this latter group, the
majority would toll backpay as of the date they
received their offer of reinstatement.
Under settled Board policy, unfair labor practice
strikers are entitled to immediate reinstatement
upon their unconditional offer to return to work. A
failure to reinstate entitles the strikers to backpay
until the date they receive valid offers of
reinstatement. In Robert S Abbott Publishing Co ,
139 NLRB 1328, it was held that piecemeal offers
of reinstatement to unfair labor practice strikers are
not valid offers of reinstatement. In that decision it
was pointed out that to hold otherwise would be
inimical to the ". . . protection which the Act
affords to collective action . ." Thereafter, this
principle was followed by the Board in Berger
Polishing, 147 NLRB 21, and Rice Lake Creamery,
151 NLRB 1113.'
In our opinion the majority offers no persuasive
explanation in support of their departure from the
Abbott rule. Although it is true that the Seventh
Circuit Court of Appeals denied enforcement of the
Board's Order in Abbott, as we read that decision
the Court did not pass upon the principle involved in
this case. Thus, the Court, before discussing the
Board's remedial order, had reversed the Board's
unfair labor practice findings and had specifically
concluded that the strike was not an unfair labor
practice strike. Therefore, the Court's
pronouncements with respect to the remedy issue
were made in the context of an economic strike.
Accordingly, this decision of the Court cannot be
construed as determining that piecemeal offers of
reinstatement to unfair labor practice strikers
constitute valid offers as to those who reject them.
Other than the Court's decision in Abbott, the
majority relies solely upon reasoning which was
considered in Abbott and which at that time was
regarded as unpersuasive.
All of the strikers here, not just those selected by
the employer, were entitled to reinstatement, just as
were the six employees whom the employer refused
to reinstate in N L R. B. v. Fleetwood Trailer Co.,
389 U.S. 375. As the Court there said, "If, after
conclusion of the strike, the employer refuses to
reinstate striking employees, the effect is to
'Rice Lake involved piecemeal reinstatement followed by harassment of
the reinstated employees. We see no need for reversing that case , even were
we to subscribe to the majority's view
discourage employees from exercising their rights to
organize and to strike guaranteed by Secs. 7 and 13
of the Act (29 U.S C. Secs. 157 and 163). Under
Secs. 8(a)(1) and (3) (29 U.S.C Secs 158(l) and (3))
it is unfair labor practice to interfere with the
exercise of these rights. Accordingly, unless the
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." 389 U.S. at 378.
Respondent makes no claim of a legitimate
business justification for its refusal to reinstate some
of the strikers, and thus, as the Court held in
Fleetwood, "the conduct constitutes an unfair labor
practice without reference to intent." 389 U.S. at
380. The piecemeal offer of reinstatement when all
the employees should have been reinstated was itself
therefore unlawful, not just in part but in toto, for it
constituted a new form of discrimination against the
strikers because of the disparate treatment meted
out to those in that group. We fail to see how the
refusal to participate in unlawful discrimination, by
those who would profit from such participation, can
cut off further backpay for them. As the Court of
Appeals which decided Abbott has recently held in
applying Fleetwood, the absence of "any reason for
preferring new workers as opposed to strikers" who
are available for work is itself evidence of unlawful
motive. Laidlaw Corporation v N.L R.B., 414 F.2d
99 (C.A. 7).
As explained in Draper Corporation, 52 NLRB
1477, 1479, the purpose of the Act is to eradicate
industrial strife by substituting therefor the friendly
adjustment of differences between employees and
their employers through collective bargaining. In
order to make collective bargaining an effective
instrument of national policy, the Act was
specifically designed to equalize the bargaining
power between employers and employees by
permitting employees to organize free from
employer interference. Thus, the Act recognizes the
fundamental necessity of assuring to employees the
group security derived from their association in
labor organizations with their fellow employees As
an essential ingredient of this group security, the
Act also guarantees to employees the right to strike
and expressly proscribes any construction of its
provisions, except as specifically provided, which
destroys the integrity of the strike. But the potential
for such destruction exists no less at the end of a
strike than during the strike or even before its
inception. Thus, the Act logically requires that the
employees who voluntarily give up a strike be
protected as a group in returning to work as well as
in striking.
Our colleagues agree that all the employees were
unfair labor practice strikers who were entitled to
reinstatement even though it necessitated the
discharge of strike replacements. They concede that
Respondent committed an unfair labor practice by
refusing to offer reinstatement to certain members
SOUTHWESTERN PIPE, INC.
of this group. By offering reinstatement to some of
the strikers while unlawfully denying reinstatement
to others in the same group, acting in concert with
them, Respondent engaged in conduct which is
discriminatory and inherently destructive of the
interests of the entire group, for such conduct denies
to each member of the group the very protection the
Act seeks to afford Our colleagues would permit
this even though it deprives the employees of such
collective protection at a time when they require it
most, namely, at the abandonment of what is to
them an unsuccessful strike.
The majority rests its conclusion that the
employees who refused Respondent's offers of
reinstatement are not entitled to backpay on the
ground that such refusals constituted a continued
strike. However, the Act does not empower the
Respondent to continue the "striker" status of its
employees by rejecting their offer of group
abandonment of the strike. Nor does the offer to
abandon the strike cease to be unconditional merely
because the offer contemplated a group return By
the same token, the employees do not continue as
strikers merely because they make such an offer and
resist the employer's offer of reinstatement to less
than the entire group. To hold otherwise, as our
colleagues do, burdens the employees' right to strike
with such harmful consequences as to place the
exercise of that right in serious jeopardy. Such a
construction would enable an employer to pit certain
members of the group against other members of the
same group by forcing the former to act as
strikebreakers, under penalty of loss of wages, and
thereby cause them to become a party to the
employer's unfair labor practices against the latter,
in a situation where the basis of discrimination is
the collective concerted activity of the entire group.
We agree that the Board does not act as an
instrument for the enforcement of a union's strike
demands. However, this does not mean that the
Board should jeopardize the future exercise of the
right to engage in a strike by permitting an
employer to reconstitute plant personnel on a
discriminatory basis, as the Respondent has done in
the instant case. Such conduct is inimical to the
security each individual employee gains from
collective association which, as the Act postulates, is
fundamental to the organizational life of all the
employees.
For these reasons, we would not depart from
existing principles by holding that the offer of
reinstatement here operated to cut off backpay
thereafter to those who refused it.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Trial Examiner. The hearing in
this case was held at Houston, Texas, between May 15-26
367
and June 5-22, 1967 The United Steelworkers of
America, AFL-CIO, hereafter the Union, filed an original
charge on August 3, 1966,' and an amended charge on
September 22 The General Counsel by the Regional
Director for Region 23 after investigation of the charges
issued an original complaint on November 4, and an
amended= complaint on April 28, 1967, alleging violation
by Southwestern Pipe, Inc., hereafter the Company or the
Respondent, of Section 8(a)(1), (3), and (5) of the
National Labor Relations Act, as amended (hereafter the
Act). By its answers to the original and amended
complaints filed on November 25 and May 12, 1967,
Respondent denied the material allegations thereof and
the commission of any unfair labor practices.
All parties appeared at the hearing and were afforded
full opportunity to introduce evidence, to examine and
cross-examine witnesses, to argue orally and to file briefs.
All parties waived oral arguments and submitted briefs.
Based upon his review of the entire record, observation
of the witnesses and perusal of the briefs, I make the
following
Findings
1. JURISDICTION AND LABOR ORGANIZATION
The complaint alleges and Respondent admits that the
Company is a Texas corporation with its principal office
and place of business at Houston , Texas, where it is
engaged in the manufacture and sale of pipe and tubular
goods and that during the 12 months preceding the
issuance of the complaint it manufactured , sold, and
shipped goods and materials valued in excess of $50,000
from its place of business at Houston directly to points
outside of Texas. The complaint also alleges and
Respondent concedes that the Union is a labor
organization as that term is defined in the Act.
Based on the foregoing , I find that the Respondent is
an employer engaged in commerce and in a business
affecting commerce and the Union is a labor organization
within the meaning of Section 2(2), (5), (6), and (7) of the
Act.
'All dates refer to 1966 unless otherwise noted
'Without objection, the Trial Examiner during the course of the hearing
granted General Counsel's motions to strike pars 7(c), 13(d), and 13(e) of
the amended complaint The Trial Examiner permitted the General
Counsel to add a paragraph (x) to the amended complaint alleging
publication of a February 11 letter (G C Exh 2(a)) by Plant Manager
Whitaker to employees as an additional claimed violation of the Act The
Trial Examiner denied the Charging Party' s motion to add the name of
James H Gray to the amended complaint as an alleged discrimmatee,
inasmuch as the Regional Director refused so to do after his investigation
of an amended charge specifically alleging that Gray was discharged for
union activities resulted in his determination that Gray's discharge was for
cause, in which determination the Regional Director was sustained on
appeal to the office of the General Counsel The Trial Examiner ruled that
this dismissal barred his consideration of the merits of the Charging
Party's renewed claim that Gray was discharged in violation of the Act,
since Sec 3(d) of the Act reserved to the General Counsel and his agents
the sole power of determining whether or not a specific charge shall or
shall not be included in a complaint The Trial Examiner took under
advisement a motion of the General Counsel and the Charging Party and
opposed by the Respondent to add to Schedule A of the amended
complaint the names of R B Chreene, Pearl L Moore, Charles Ashley,
Jefferson Hall, Edgar Rose, Sammy L Kraft, Bill Johnson , Jerry Skelton,
and Ruben Moses as discriminatees Inasmuch as the Company was aware
of the participation of these men in the strike , and the evidence presented
by all the parties related to all the strikers , including the men in question,
the motion is granted
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11 THE UNFAIR LABOR PRACTICES
A. Background
Since the original charge in this case was filed on
August 3, Section 10(b) of the Act precludes reliance upon
any occurrences prior to February 3 in ruling upon the
merits of the complaint as other than background
information. However, a recitation of certain of those
prior occurrences enables a clearer understanding of
events during the 10(b) period and, therefore, are recited
hereafter.
The Company for some years has conducted its
operations on premises which it shares with Brown &
Root, Inc. Both companies are wholly owned subsidiaries
of Halliburton Co Brown & Root is a much larger
company than Southwestern Pipe and utilizes the major
portion of the premises The two companies have separate
boards of directors and management personnel (though
the two boards are composed of the same persons) and
conduct personnel matters, such as hiring and
maintenance of personnel records, at a common
administrative center
For a considerable time prior to a July 12 strike of
Southwestern Pipes's employees, about 70 percent of the
work force were negroes'
Prior to the time the Union commenced its
organizational efforts among the Company's employees
(in early 1965), the Company's negro employees were
assigned separate (and poorer) parking facilities, hired
only in the lowest-rated jobs, not promoted into the
higher-rated jobs and asked to contribute or assign a
different (and higher) amount from their wages to a
charity favored by the Company.' While the Company
discontinued some of these practices' long before the
Union commenced its activities among the employees, the
negro employees, many of whom were long-service, had
not forgotten and were sensitive on the issue
Both the Company and the Union were aware of this
sensitivity and the potential of the discrimination issue in
the campaign. The appeal of the Union was based in part
on the promise of a contract containing provisions
protecting the employees against discrimination plus the
establishment of the means for redress in the event
discrimination occurred, i.e , job classifications based
solely on job content, a rate range for each classification,
progression within such rate ranges based on factors
relating solely to time in grade and job performance,
opportunity for progression from lower to higher
classifications based on the same factors, layoff based
only on length of service, discharge only for proven good
cause, the right to grieve and arbitrate any company
infraction of such provisions, etc The Company countered
such appeal with the time-tested carrot-and-stick formula
On the one hand, the Company advised the employees
that the Company, and only the Company, had the power
to make any changes in existing practices, that if any
changes were made, they would be made only if the
Company felt it was in its best interest, and that all the
employees would accomplish by choosing representation
by the Union would be a strike and consequent loss of
their jobs to replacements.' On the other hand, the
'No employees of Mexican extraction were employed by the Company
until strike replacements were secured after the Union called the strike,
most of the replacements were of Mexican extraction
'Employee testimony to this effect was not contradicted
'Segregated parking and the charity contribution practices
Company sought to convince the employees of a "new
deal" and its benevolent interest by (1) installing a new
plant manager, (2) reorganizing the management
hierarchy, (3) promoting several negroes from the
bargaining unit to first echelon supervisory positions and
one to a second echelon supervisory position, (4)
reclassifying a substantial number from lower to
higher-rated job classifications, with consequent wage rate
increases, and (5) granting a substantial general wage
increase' in the month prior to the date the Board
conducted an election on the Union's petition for
certification as the collective-bargaining representative of
the Company's production and maintenance employees.'
These five actions also vividly illustrated the Company's
point that it, and it alone, had the power to make any
changes; that it could do so without the Union playing
any role therein, and that it desired to improve the role of
the negro employees.
Three days after the certification issued, the Union
requested a list of the names of the employees in the unit,
their job classifications, rates of pay, the details of the
Company's vacation, holiday, profit-sharing and insurance
plans, and a meeting for the purpose of commencing
negotiations for a contract On August 3, 1965, the
Company furnished the requested information and stated
its willingness to meet with the Union after it had digested
the submitted material. The Company also requested the
Union's agreement to its grant of certain merit increases
On August 5, 1965, the Union by telephone and a
followup letter consented to the increases and on August
10, 1965, mailed the Company a proposed contract.
Formal negotiations commenced on September 10,
1965 William A. Brown, an attorney, was designated at
the outset as the sole spokesman for and representative of
the Company, and continued in that role at all times
subsequent.' Joie Hughes was the Union's spokesman and
representative at the first meeting, and continued in that
capacity for the next four meetings (September 17, 23,
and 28, October 5, 1965). At the outset the parties agreed
that the Company might make merit increases during the
course of the negotiations without prior notice to and
discussion with the Union, that they would discuss
noneconomic issues first, that they would attempt to reach
agreement in principle and then develop mutually
acceptable language, and that all agreements concerning
specific provisions would be tentative pending agreement
on a complete contract Compromises were reached
during the first five meetings on provisions covering the
parties and purposes of the contract (the preamble), union
recognition , no discrimination , management rights, waiver
of bargaining rights on matters not incorporated in the
agreement for its term, definition of shifts and the
premiums to be paid therefor, definition of the workweek
'A typical company communication on this issue (lob security, a matter
of particular concern to minorities ), stated "Look what happened at Allied
Chain Co here in Houston when the Union called a strike this April
About 100 employees , mostly colored, went on strike , and the Company
has now replaced all but 10 or 15 who refused to strike Nearly 100 men
have been permanently replaced and lost their jobs "
'The Company labeled the increases as merit increases , the evidence
(Resp Exh R-2) established , however, that it was a general wage increase,
since it was granted to practically the entire work force in amounts ranging
from 12-25 cents per hour
The Union filed its petition on May 10, 1965, the hearing was held on
June 9, 1965 , the general wage increases were placed into effect in June of
1965, the election was held on July 15, 1965, and won by the Union
(115-47, with 9 challenged ballots ), the election results were certified to the
parties on July 23, 1965 (Case 23-RC-2445)
'From the time the Union ' s organizational campaign commenced
SOUTHWESTERN PIPE, INC. 369
and overtime premium to be paid for work in excess
thereof and prior notice when holiday, Saturday or
Sunday work was scheduled. Checkoff of union dues,
overtime distribution, daily overtime premiums, a
no-strike provision, the length of lunch periods and under
what conditions they should be compensated for, seniority
and other matters were also discussed
C. O. Murphy replaced Hughes as the union
spokesman at the sixth meeting (October 7, 1965) No
progress was made and the parties discussed seeking the
services of the Federal Mediation and Conciliation
Service, hereafter the FMCS.
C. T. Ray assumed the role of union spokesman at the
seventh meeting (November 4, 1965) and withdrew the
Union's previous agreement to the bargaining waiver
provision. When Brown insisted on its retention, Ray left
the meeting and shortly thereafter filed a charge with the
Board alleging that Brown's insistence constituted a
refusal to bargain (Case 23-CA-2223) The charge was
dismissed Bargaining resumed on December 10, 1965,
under FMCS auspices, and continued on January 7, 13,
14, and 25, with Ray in charge for the Union at all
meetings other than January 25 (when Hughes substituted
for him).
The December 10, 1965, meeting was devoted mostly to
apprising the mediator of the current state of negotiations;
the parties confirmed their agreement to the following: (1)
the preamble, (2) union recognition, (3) no discrimination
for union support or nonsupport, nor because of race,
creed, sex, color, or national origin, (4) management
rights (partial), (5) definition of workweek and provision
for payment of overtime for work in excess thereof, (6)
definition of workday, (7) extent of lunch period and
provision for paid lunch period under certain conditions
(subject to a ruling concerning the legality of such
payments from the Department of Labor), (8) provision
for advance notice of Saturday, Sunday or holiday work,
(9) shift schedules and premium payment therefor, and
(10) definition of seniority. They confirmed their
discussion but failure to agree upon provisions for- union
dues checkoff, grievance and arbitration machinery, a
no-strike provision, seniority, preservation of practices and
customs not set out in the contract, daily overtime at 1
1/2 time after 8 hours and double time after 12 hours,
overtime at 1 1/2 time for Saturday work and double
time for Sunday work, 10 minutes paid washup time prior
to shift termination, equal distribution of overtime and
employee right of refusal of overtime work, nonrotation of
shifts and employee right to exercise shift preference based
on seniority, leaves of absence, military leave, employee
discipline, waiver of bargaining rights over new or
additional issues for the contract term and management
rights (partial agreement). The balance of the contract
submitted to the Company by the Union on August 10,
1965, still had not reached the discussion stage. At this
meeting, the parties reached agreement in principle to
provisions governing temporary transfers and veterans
reemployment rights, and discussed but failed to reach
agreement on fixed shifts with shift preference rights
based on seniority and leaves of absence The Union
consented to a 7-cent general wage increase proposed by
the Company effective January and requested advance
notice of future proposed increases (changing Hughes'
September 10, 1965, consent to the Company's making
through the completion of the hearing in this case , Brown played a central
role in developing and executing the Company 's tactics and strategy
merit increases without prior notice to and approval by
the Union).
At the January 7, 13, and 14 meetings, the parties
discussed distribution of overtime, seniority, grievance and
arbitration machinery, plant visitation by union officials,
bulletin boards, a safety and health provision, medical
examinations, waiver of bargaining during the contract
terms and a vacation provision They reached agreement
on plant visitation by union officials, bulletin boards, a
safety and health provision (partial) and a waiver of
bargaining during the contract term provision but were
unable to reconcile their differences on the other issues
discussed.
Thus, at the beginning of the 10(b) period - February
3 - after 12 bargaining sessions spread over 6 months,
the parties had reached tentative agreement on (1) a
preamble, (2) union recognition, (3) no discrimination for
union support or nonsupport nor because of race, etc., (4)
definition of the workweek (40 hours) and for overtime
payment at 1 1/2 time for work in excess thereof, (5)
definition of the workday (8 hours), (6) the length of the
lunch period and payment therefor under certain
conditions, (7) advance notice of Saturday, Sunday or
holiday work, (8) shift schedules and shift premiums, (9) a
definition of seniority, (10) temporary transfers, (11)
veterans reemployment rights, (12) plant visitation by
union officials, (13) bulletin boards, and (14) waiver of
bargaining during the contract term, plus partial
agreement on (1) management rights and (2) safety and
health They discussed but failed to agree on (1) seniority
application to layoff, recall, and promotion, (2)
establishment of grievance and arbitration machinery and
a no-strike provision, (3) daily overtime and overtime for
Saturday and Sunday work, (4) vacations and pay
therefor, (5) overtime distribution and employee right of
refusal thereof, (6) maintenance of fixed shifts and bid
preference by seniority, (7) preservation of practices and
customs not enumerated in the contract, (8) paid washup
time, (9) leaves of absence, (10) employee discipline, (11)
management rights and (12) checkoff of union dues. They
did not reach the Union's proposals for: (1) paid holidays
and compensation when requested to work thereon, (2)
reporting pay, (3) jury service pay, (4) rest periods, (5)
hospital and surgical insurance coverage and premium
payment therefor, (6) pensions and profit sharing, (7)
Christmas bonus, (8) wage classifications, rates of pay and
progression within and between classifications and (9) the
term of the contract.
Employee witnesses testified that during the same
period (commencing with the certification of the Union in
July of 1965 and ending February 3, 1966), various
management representatives informed them that: (1) there
would never be a contract between the Company and the
Union (Plant Manager Norman Whitaker to employee
Odis Dolphus, August 1965; General Foreman John Tyler
to employee Ruffin Pringle, November 1965), and (2) that
the Company never would tolerate a union in the plant
(Assistant Production Superintendent Joseph Varner to
employee Amos Brown, late 1965; Foreman Jerry Ashy to
employee Ruffin Pringle, November 1965).'°
"Whitaker, Tyler, Varner, and Ashy denied making such statements,
The Trial Examiner finds it unncessary to resolve the credibility issues
thereby created since the statements if made were uttered prior to the 10(b),
period
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Contentions of the Parties
1. The General Counsel
The General Counsel alleges that during the period
commencing with a date (February, 3) 6 months prior to
the time the Union filed its original charge in this case
and ending with the date (July 12) a strike of the
Company's employees ensued, the Company sought to
undermine and discredit the Union, with the expectation
that at the end of the certification year (July 23) it might
rid itself of the Union by securing its decertification." The
General Counsel alleges that during this period the
Company conducted negotiations in a manner designed to
avoid the consummation of an agreement and committed
various acts designed to undermine the Union and to
cause the employees to lose confidence in its ability to
represent them effectively. The General Counsel, in
addition to alleging: (a) General bad-faith bargaining as a
violation of Section 8(a)(5) and (1) of the Act, lists the
following as additional specific violations thereof:
b Various statements by supervisory personnel to the
effect the Company never would execute a contract with
the Union, that it would close its doors or move out its
machinery before it would. have a Union in the plant, that
the employees were being denied or having delayed their
merit and other wage increases because they had chosen a
Union, that a union contract would mean a reduction in
working hours if achieved, that the Company would never
agree to a checkoff of union dues, that if the employees
struck those who did not participate would receive
promotions and wage increases, that the Company had a
standby crew ready to replace any employees who struck,
and that any employees who engaged in a strike would be
discharged;
c. Withdrawal of a wage increase after the Union
expressed its need to consider certain data;
d. Promulgation and continued support of a contract
provision which would have the effect of preventing the
Union from discharging its duty of fair representation of
the Company's employees,
e. Unilaterally changing shift starting times and the
shift assignment system and employee shift assignments
without prior notice or consultation with the Union.
The General Counsel also alleges that the statements
set out in (a) above constitute independent violations of
Section 8(a)(1) of the Act.
There appears to be general agreement that the
immediate event which precipitated the strike, which
began about midnight on the evening of July 12, was the
discharge of James H. Gray, a union committeeman. The
General Counsel contends, however, that the alleged
8(a)(1) and (5) violations recited heretofore also were
major factors prompting the employees to strike and the
Union to sanction the strike. It is, therefore, the
contention of the General Counsel that it was an unfair
labor practice strike entitling the strikers to reinstatement
to their former or substantially equivalent jobs upon
application therefor, even if this meant the displacement
of any replacements hired after the commencement of the
strike
It is the contention of the General Counsel that by a
letter sent on July 13, the Company discharged all the
"The Company filed a petition challenging the Union ' s majority status
on August 23, 1966 (Case 23-RM - 174) It was dismissed on November 21,
1966, by the Region due to the pendency of this case The dismissal was
upheld by the General Counsel after appeal on December 23, 1966
strikers for having engaged in the strike, thereby
prolonging the strike and violating Section 8(a)(3) and (1)
of the Act, and that by allegedly coercive statements
addressed to various employees on various dates after the
strike commenced and prior to the strikers' September 9
offer to return to work, the Company committed
additional violations of Section 8(a)(5) and (1) of the Act.
He also contends that the Company refused to reinstate
the striking employees to their former or substantially
equivalent employment upon their application therefor on
September 9, and on that date and subsequently solicited
strikers individually and in groups smaller than the total
striking group to return to work, thereby further
prolonging the strike and additionally violating Section
8(a)(1) of the Act.
2 The Charging Party
The Charging Party joined in the General Counsel's
contentions and positions noted above, plus one addition
The Charging Party alleges that James H. Gray, the
union committeeman whose discharge precipitated the
strike, was discharged because he refused to report to the
plant manager for interrogation leading to possible
disciplinary action against him without accompaniment by
a union representative of his choosing, that discharge for
this reason is violative of Section 8(a)(3)" and (1) of the
Act, and that since the strike was precipitated in part by
such discharge and unfair labor practice, it was an unfair
labor practice strike.
3 The Respondent
The Company states that at all times pertinent it
bargained in good faith, that it made concessions,
submitted proposals and counterproposals, furnished all
information requested, and was at all times ready to meet
and discuss all and any unresolved issues with regard to a
contract, and asserts the Union and not the Company by
its actions caused and prolonged the strike. It is the
Company's position that the strike began as a
spontaneous protest of James H. Gray's discharge, which
the General Counsel determined to be for cause by his
decision against issuance of a complaint on the Union's
charge that Gray's discharge violated the Act, and that
the strike was sanctioned by the Union in order to bring
pressure upon the Company to yield to the Union's
economic demands and to reinstate Gray, and, therefore,
was an economic and not an unfair labor practice strike
With regard to the Charging Party's contentions
concerning the Gray discharge, the Company states that
Gray was discharged for insubordination, i e., for refusing
to comply with the order of his supervisor to report to the
plant manager's office. The Company contends that since
Gray had no notice or knowledge of the subject or
subjects the plant manager wished to discuss with him at
the time he was told either to report as ordered or leave
the plant, his demand for union representation was
premature.
The Company denies that it made any unilateral
changes in wage rates, classifications or working
conditions without prior notice or consultation with the
Union (asserting in addition that if any changes were
made, they were made after impasse or after notice and
consent, either overt or implied), asserts that while it
offered a proposal concerning racial discrimination, it did
"See fn 2, ibid
SOUTHWESTERN PIPE, INC. 371
not insist upon its adoption, that at all times it was ready
to discuss the proposal and any modification thereof or
substitution therefor, that its proposal did not have the
effect of barring the Union from carrying out its duty to
represent all employees equally, and denies that it
withdrew a wage increase because the Union indicated a
need to consider relevant data.
With regard to the independent 8(a)(1) statements
attributed to various company supervisors, the Company
denies that they occurred, states that whatever did occur
did not constitute a threat or promise within the meaning
of Section 8(c) of the Act and, therefore, was an exercise
of privileged free speech within that Section, that the
supervisors to whom the various statements were
attributed were not authorized or empowered to make
statements on behalf of the Company in the subject areas
alleged, that such statements were contrary to the official
company position stated by its authorized representative
and that the Company is not responsible therefor.
The Company further denies that by its February 11
letter it threatened to discharge any employees who
engaged in a strike , denies that by its July 13 letter it
discharged the employees who struck on the preceding
evening, denies the strike was other than economic and
contends that the strikers ' application for reinstatement
was unconditional and that in any event it did offer them
reinstatement to their former or substantially equivalent
jobs upon application therefor.
The Company affirmatively alleges that the following
strikers are ineligible for reinstatement under any
circumstances because of their involvement in acts of
violence, intimidation , mass picketing and other
misconduct in connection with the strike.
Mack Bowie Harvey Harps
R B. Chreene James Harris
Ogilivia Gayfield Robert Hill
General Glover Ottis (Odis9) Lewis
James Gray" Frank Smith
C The Issues
Based upon the pleadings , evidence and contentions of
the parties , the issues before the Trial Examiner are:
I Did the various supervisors and management
representatives make the various statements attributed to
them in the complaint '? If so, were such statements
coercive or promissory? May the Company be held to be
responsible therefor?
2. Did the Company withdraw a wage increase from
Frank Smith because the Union expressed a need to
consider relevant data?
3 Did the Company ' s nondiscrimination proposal
preclude the Union from discharging a duty to fairly
represent the Company's employees?
4. Did the Company unilaterally change the employees'
shift starting times and shift assignments without prior
notice to or consultation with the Union9
5. Was the Company generally bargaining in bad faith?
6. Was James H. Gray discharged for engaging in
protected activity under the Act9
7 Assuming an affirmative finding on any one or more
of the foregoing questions , was such act by the Company
a substantial factor influencing the employees to engage in
the strike and the Union to sanction the strike?
8. Did the Company discharge employees who
participated in the strike?
"See fn 2, ibid
9 Did the strikers make an unconditional offer to
return to work? Did the Company offer them
reinstatement to their former or substantially equivalent
jobs9 Did the Company solicit individual strikers and
small groups of strikers to return to work9
10. Assuming an affirmative finding on 8 above, and/or
the first and third questions of 9 above, and/or statements
referred to in 1 above made after the strike commenced,
did such act by the Company prolong the strike9
II Assuming an affirmative finding on any of the
foregoing, did such act violate Section 8(a) of the Act9
12. Did any of the employees named by the Company
in its answer commit acts of violence , intimidation, mass
picketing or other misconduct connected with the strike9
If so, does such act warrant disqualification for
reinstatement?
D. The February 11 Letter
On February 10, the day prior to the date of the first
negotiating session between the parties within the 10(b)
period , part of the work force went out on strike over the
discharge of two employees , Henry Brokenberry and
Arthur Williams . The Union by C. T Ray immediately
informed the Company the strike was not called,
authorized or sanctioned by the Union , directed the
strikers to return to work and requested that the
Company refrain from any retaliatory action against the
strikers and review the merits of the two discharges. The
Company agreed and the strikers returned to work The
subsequent review of the two discharges resulted in
Williams' return to work (though at a different job) and
the sustaining of Brokenberry ' s discharge In the interim
(on February 11, the day after the strike occurred), the
Company distributed the following letter to its employees.
February 11, 1966
TO ALL EMPLOYEES
Yesterday, a group of employees walked off their
jobs because another employee had been discharged.
This was an act of insubordination and defiance of
authority which will not be tolerated. Employees who
engage in such activity are subject to discharge and
permanent replacement . This group of employees was
misled and misinformed as to their rights and duties,
and they came dangerously close to loss of valuable
rights as a result of their misguided action.
Mr Ray, of the Steelworkers Union, arrived soon
after the walkout, saying that it was not authorized by
the Union and he proposed to direct the men to return
to work if the Company would take them back. We
replied that this was our wish and intent , and Mr. Ray
then sent instructions to the group to return to their
jobs, which they did within about an hour after the
walkout started
After the men had returned to work, Mr. Ray
requested that the discharged employee be rehired. The
Company refused to rehire him or to consider his case
under the influence of this unauthorized walkout
However, arrangements were made for his case to be
reviewed by Mr Rawson next week. This is in
accordance with long established company policy, and
Mr. Rawson will review and either confirm or modify
the discharge action on the basis of his own
investigation . I have already reviewed the facts and I
confirmed the action of the foreman and the
superintendent because I considered their decision
proper.
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We have an effective procedure in this company for
review of complaints It is available to all employees on
request and it was never denied in this case When
employees, singly or in a group, fail to follow this
complaint procedure or refuse to abide by the final
decision, they are guilty of insubordination This will
not be permitted
/s/ Norman Whitaker
Norman Whitaker
Plant Manager
The General Counsel and the Charging Party contend
that the language of this letter constitutes a threat
addressed to all its employees by the Company that any
future strike participant shall be discharged The
Respondent states that the two employees were discharged
for engaging in a slowdown, that it was determined in the
hearing before a high company official conducted as a
result of the Union's request for review (in which both the
Union and the Company participated) that while Williams
had produced some defective work, the errors could have
resulted from human frailty rather than deliberate
spoilage, while no reasonable explanation for
Brokenberry's unsatisfactory productive efforts was made,
so Williams was reinstated on a job requiring lesser skills
and Brokenberry's discharge was upheld, that the letter
was intended only as a warning to employees that any of
their number who took matters into their own hands and
participated in wildcat walkouts not called, authorized or
sanctioned by the Union but rather were opposed by the
Union thereby engage in unprotected activities under the
Act and place their jobs in jeopardy.
The language of the letter, and particularly the
statements that: "Employees who engage in such activity
(walking off their jobs in protest of the discharge of
another employee) are subject do discharge and permanent
replacement . . . When employees, singly or in a group,
fail to follow this complaint procedure (review by a
Company official of the disciplinary action) or refuse to
abide by the final decision [of a Company official], they
are guilty of insubordination This will not be permitted "
(material in brackets added for clarification), in the
judgment of the Trial Examiner, clearly carry the threat
that any employee who refuses to accept a unilateral
company decision to discharge or discipline one of their
number as final and strikes in protest thereof shall be
presumed guilty of insubordination and risk permanent
loss of his employment.
It is very well for the Company to contend that it
meant to limit its threat to unprotected walkouts, but the
language of the letter contains no such limitation; it
conveys the message to all the employees who received it
that any of their number who participates in any strike
thereafter in protest of a discharge of another employee,
whether that employee was discharged for union activity,
for seeking to press a legitimate grievance over wages,
hours or other working conditions, for assaulting a
foreman, or whatever, subjects himself to discharge and
replacement.
On the basis of the foregoing, the Trial Examiner finds
and concludes that by its February 1 l letter the Company
threatened its employees with discharge for participation
in either protected or unprotected concerted activity for
their mutual benefit and/or protection. Inasmuch as it has
been stipulated that the writer of the letter was the plant
manager and the letter was written on company stationery
in his official capacity, the Trial Examiner finds the
Company may be held responsible therefor.
E. The February Bargaining
The first contract negotiations during the 10(b) period
commenced on February II and continued on February
17, 21, and 25, with Ray as spokesman for the Union and
Brown for the Company During the 12 negotiation
sessions prior to February II, the parties had reached
tentative agreement on 14 contract provisions, partial
tentative agreement on 2 more, discussed but did not
resolve their differences on 13 others, and had not yet
taken up 9 union proposals (see II, A, above for details)
During the four February sessions, the parties
reconfirmed their tentative agreements in 14 subject areas
and partial agreement in 2 other areas, reached further
tentative agreement on leaves of. absence and jury service
pay, and discussed but failed to agree on management
rights, employee discipline, dues checkoff, daily and
Saturday and Sunday overtime, overtime distribution and
employee right of refusal, maintenance of fixed shifts and
shift preference by seniority bid, seniority for purposes of
layoff and promotion, establishment of grievance and
arbitration machinery and a no-strike commitment,
vacations, paid holidays and compensation for work
thereon, reporting pay, hospital and surgical insurance
coverage and premium payment therefor, pension and
profit sharing, rest periods and the contract term They
did not discuss the Union's proposals for paid washup
time, preservation of practices not set out in contract or
Christmas bonus. They discussed subcontracting and the
Company stated it would submit a proposal dealing with
the subject, the Company also asked for a specific
proposal on wages (the Union had proposed a substantial
across-the-board wage increase be granted to all
employees and the wage rates in each classification be
reviewed)
F. The March Bargaining
By March, Ray had grown apprehensive over the
approaching end of the certification year (in July) with
agreement achieved only in areas which he believed of
lesser importance, and then, in his opinion, only where
either the Company was legally obligated or the
agreement coincided with the Company's previous
practices or on the Company's terms (on the basis of a
company proposal) or on a minor matter Ray thought
that perhaps an experienced lawyer whose background
matched that of Brown and who was personally and
professionally acquainted with Brown might provide a
better match for Brown and achieve greater progress than
he had to date He called upon the Union's attorney,
Chris Dixie, to take over the role of union spokesman in
all subsequent negotiations
Dixie entered the negotiations on March 8. All prior
tentative agreements were quickly reviewed and
confirmed, and tentative agreement achieved on retention
of the Company's existing profit-sharing and pension plan
for the term of the contract. The Company submitted
information requested by the Union concerning the names,
classifications and rates of pay of the employees in the
unit. Dixie reiterated the Union's position concerning the
illegality of the Company's proposal for an individual
grievance processing system excluding the Union and the
parties also discussed seniority and the selection of certain
arbitrators (proposed by the Union). The meeting closed
with a request by Dixie for information concerning
employee dates of hire and dates in classification to
ascertain whether the Company normally applied length of
SOUTHWESTERN PIPE, INC 373
service as the prevailing principle in layoffs, recalls and
promotions in which case Dixie stated the Union might
modify its seniority proposal. The requested information
was supplied by letter on March 1 l
At the next meeting (March 16) Dixie acknowledged
receipt of the March 11 information, stated it had not yet
been correlated, and advised the Company he would
submit a revised seniority proposal giving effect to the
seniority principle in layoffs except where junior men
possessing necessary skills had to be retained and calling
for recognition of the seniority principle in promotions.
The Company submitted new language for its proposed
individual grievance processing but Dixie stated that the
new language still would result in direct bargaining over
wages, hours and working conditions between the
Company and individual employees and permit individuals
to process their grievances to arbitration over the
opposition of the Union, both of which he declared to be
unlawful Brown suggested that Dixie submit
modifications which would cure these two objections.
Brown submitted eight proposed classification changes to
which Dixie objected, and the parties discussed a situation
wherein three employees, all negro, operated the same
machine at different rates of pay.
At the next meeting (March 25) the Company
submitted still another revision of its proposal for
processing individual grievances, and proposed an
arbitrator. Dixie rejected the person named and suggested
a rotating panel of three. Dixie made the same objections
to the illegality of the Company's proposal on individual
grievance processing, to which Brown retorted that he was
not making a demand for any grievance or no-strike
provision. Dixie then renewed his proposal to give effect
to the seniority principle in filling vacancies and
promotions. He also submitted a tabulation drawn from
the employment data supplied by the Company and voiced
the judgment that the tabulation demonstrated that white
men were paid higher wages than negro men for the same
work. On this note the meeting broke up
At the final meeting in March (March 28), seniority,
the individual grievance and general grievance and
arbitration proposals, the selection of an arbitrator (or
panel of arbitrators), management rights, overtime (the
Union offered to drop its request for 1 1/2 time for
Saturday work if the Company would agree to daily
overtime of 1 1/2 time after 8 hours and double time for
Sunday work, which the Company rejected), holidays and
pay for work thereon (the Union reduced its proposal
from eight to seven paid holidays), hospital and surgical
insurance coverage and premium payment therefor were
again discussed without agreement. The Company
renewed its request for a specific wage proposal but the
Union declined to furnish one at that time on the ground
the Company only wanted a specific proposal so it could
bring the wage issue to an immediate impasse in order to
free itself to make unilateral increases without notice or
consultation with the Union, pointing to the numerous
individual adjustments the Company had proposed and
effected since bargaining had commenced. The Union
reiterated its charge that Negroes were not receiving equal
pay for work equal to that of white employees, with
specific reference to its tabulation submitted at the end of
the prior meeting, and requested further information
setting out the entire history of each personnel change for
each employee. Dixie proposed a substitute for the
previously agreed to antidiscrimination provision which
would commit the Company to a promise that it would
not discriminate against any employee with regard to his
wage classification, rate of pay, pay progression,
promotion or other condition of employment on the sole
basis of race, and suggested the company study the
apparent discrepancies between the wages of white and
black employees performing the same work set out in the
tabulation, with particular reference to the classifications
of Crane Operator and Slitter.
G. The Wage Increase Withdrawal
While expounding on cases of apparent wage
discrimination disclosed by the tabulation, Dixie stated
that Harold Montgomery, a white man, and Frank Smith,
a Negro, performed identical work, but that Montgomery
was classified as a Machine Operator, First Class and
paid $2 95 per hour while Smith was classified as a
Machine Operator, Second Class and paid $2 57 per hour,
38 cents per hour less At this point, Brown stated he
wished to caucus with other management officials and left
the room. Upon his return, Brown announced that the
Company had been planning to upgrade Smith's
classification and wage rate and offered to upgrade
Smith's classification to Machine Operator, First Class
and change his rate of pay to $2.95. While the parties
substantially corroborate each other on the sequence of
events up to this point, they differ diametrically on what
occurred thereafter
The union witnesses testified that Dixie accepted the
offer and that later, when Dixie persisted in his request for
additional information on the work histories of the
employees, Brown stated that if the Union was going to
persist on going further into the issue of alleged wage
discriminations (which he vehemently denied existed), he
would withdraw Smith's increase.
The company witnesses testified that Dixie, without
accepting the offer, characterized it as an admission by
the Company of the validity of the Union's charge of
wage discrimination based on race and charged that by
this and previous piecemeal wage increase and
classification changes, meanwhile failing to furnish the
Union sufficient information to enable it to ascertain
whether the proposed increases were eliminating or
increasing wage inequities based on race within the unit,
the Company had not been bargaining in good faith They
testified that Brown then stated that he would furnish the
information just requested by Dixie, as he had on all prior
occasions, so that Dixie would have all the information he
needed to evaluate the Company's proposals for employee
wage increases, including that of Smith, and refrain from
effecting Smith's increase until Dixie had the requested
information and could evaluate the Company's proposal
for Smith's increase with that information before him
On April 4, the Company furnished the information
requested
On April 11, the Company formally submitted a
proposal to upgrade Smith to Machine Operator, First
Class at a rate of $2 95, together with a number of other
proposed classification and wage rate changes.
On May 19, the Union accepted the wage rate changes
and rejected the classification changes (including that of
Smith)
The Trial Examiner finds there was no unequivocal
acceptance of the Company's offer of an upgrade and
wage increase for Smith at the March 28 meeting, but
rather a seizure by the Union upon the offer as proof of
the accuracy of the Union's charge of wage discrimination
based on race and its charge that a review of the entire
wage and classification structure was in order before the
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
merits of any individual wage and classification proposal
could be determined. Viewed in this light, the action of
the Company in deferring any further classification and
wage rate adjustments (including that of Smith), until the
Union was in possession of and had opportunity to study
all the data it desired, appears more an accommodation to
the Union than an arbitrary withdrawal of a previously
offered classification upgrade and wage increase, and the
Trial Examiner so finds
H. The Alleged Supervisor Threats of March
It is alleged that on or about March 15 Plant and
Production Superintendent Jon Dubois interfered with,
threatened, or coerced employees in the exercise of their
Section 7 rights under the Act by stating that (1) the
Company did not intend to consummate a contract with
the Union, and (2) an employee was not receiving his
merit increase because of the Union.
The first claim above was supported by the testimony
of employee Frederick Flowers that while he was at work
at the plant in March Dubois came up to him, told him
that he had been watching his work for the preceding
several weeks and believed Flowers was slowing down,
then stating that "if you are thinking about a Union, there
is not going to be a Union This job is operated by
Southwestern Pipe and it is going to be operated by
Southwestern Pipe "
The second claim was supported by the testimony of
employee Amos Brown that while he was at work at the
plant in March Dubois addressed him and asked how
things were going, to which he replied that things were
fine, but "Since I have made mill operator, when will I
receive my increase?", to which Dubois replied, "Well, we
have to see your Union about that . Now, you all have
started to get the Union in The raises have to come
through the Union. They have to be okayed by the
Union " On cross-examination, he repeated that in essence
Dubois advised him that since the employees had
designated the Union to serve as their exclusive
representative with regard to their wages, hours and
working conditions, any wage increase he sought could not
be effected until and unless the Union approved it
In rebuttal testimony Dubois was asked by Company's
counsel, "Now, can you recall during that same
conversation or during any conversation with regard to a
slowdown, saying to Frederick Flowers that if he was
thinking about a union there is not going to be a union9
This job is operated by Southwestern Pipe and it is going
to be operated by Southwestern Pipe9" and responded, "I
am sure that I told Frederick Flowers something very
similar to those words." Dubois also confirmed the
substance of Brown's testimony
The Company argues that the Flowers' testimony varies
from and does not support the first allegation noted
heretofore, and that the latter statement simply was
explanatory of existing law
In my judgment the Flowers' testimony sufficiently
supports the allegation and in any event is within the total
compass of the complaint, and he so finds, he also finds
that the statement did interfere with, restrain, or coerce
Flowers in the exercise of his protected Section 7 rights
under the Act and constituted a threat within the meaning
of Section 8(c) of the Act. Inasmuch as it is conceded that
Dubois was the Company's plant and production
superintendent at the time and in the exercise of that
capacity at the plant at the time of his conversation, the
Trial Examiner further finds that the Company may be
held responsible for the statement made, N L R B v
LaSalle Steel Co , 178 F 2d 829 (C A. 7), cert denied 339
U S. 963, Joy Silk Mills, Inc v. N L R B, 185 F 2d 732
(C A D.C ), cert. denied 341 U S 914; Webb Tractor, 167
NLRB No 46
As to the latter allegation, I find it an accurate
explanation of the proper precedure and existing law
governing the subject - a merit increase - and
noncoercive in effect
i The April and May Bargaining, and the Company's
Nondiscrimination Proposal
As noted heretofore, at the March 28 negotiations the
Union submitted a substitute nondiscrimination proposal
for its original (and accepted) proposal At the next
meeting (April 14), the Company countered with the
following.
30 2 2 It is recognized the Employer follows an
informal system of merit evaluation, on the basis of
which wages are determined within the range of wage
rates established for the classification of employee. No
disparity of wage rates within the range of wage rates
for the employee's classification, pursuant to
Employer's merit program, shall be considered as
evidence of discrimination as defined herein
30.2.4. It is recognized that the Employer follows a
system of employee classification in which all
employees are classified according to the types of work
which they are capable of performing, rather than a
system of job classifications in which the jobs are
classified and evaluated and a rate of pay assigned to
such job The fact that employees of different
classifications and disparate rates of pay are assigned to
the performance of the same work shall not be
considered discriminatory as such term is defined
herein, provided, however, that where discrimination on
the basis of sex is involved, special standards apply.
The Union indicated it would have to study the
proposal and suggested all else be put aside while the
parties attempted to resolve their differences in this area
In accordance therewith, the only other matters taken up
(briefly) at the April 14 meeting were the selection of
arbitrators (with no decision) and the Company's April 11
list of proposed upgrades and wage increases (with no
agreement)
At the next meeting (May 19), the Union approved the
wage increases set out in the Company's April 11 proposal
and rejected the proposed classification changes The
Company proposed an increase for another employee and
delivered a copy of the existing hospital and surgical plan
The Union reserved judgment on the increase. Dixie
opened the discrimination issue by citing specific cases
from his March 28 tabulation of what appeared to him to
be differences in pay based on race and challenged Brown
to explain the differences on any other ground Brown
continued to insist that no discrimination existed and
requested that Dixie dictate to his secretary specific details
of situations wherein Dixie believed serious differences
existed between the wage rates and/or classifications of
white and negro employees based on race so that Brown
might have them before him in writing for study and
reply. Dixie complied with his request. Brown promised an
answer after he had the written document before him and
an opportunity to analyze its contents
The parties then turned to the Company's
discrimination proposal. Dixie indicated the Union's
acceptance of paragraphs 30.1, 30 2 6, 30.3, 30.4, and
SOUTHWESTERN PIPE, INC.
30 7. He suggested modifications of paragraphs 30.2,
30 2 1, and 30 2 7 by the addition of the words "in whole
or in part" after the last word in the second sentence of
30 2, the word "been" in the second line of 30 2 1, and the
word "not" in the third line of 30 2.7, a rewrite of 30 2.3's
last sentence and objected to the second sentence of
30 2.2, the last sentence of 30.2 3, the second sentence of
30 2 4, the last part of the first sentence of 30 2.5, the last
sentence of 30 5 and all of 30 8, he suggested adding to
30 2 8 the words "but any existing discrimination will be
corrected", and stated 30 6 was acceptable if the parties
could agree on the consultant.
Dixie's major objections were twofold, to the provisions
that (I) wage rate disparities within a job classification
and (2) wage rate and/or job classification disparities
between employees performing the same or similar work
were not to be considered as evidence of discrimination as
that word was defined in 30.2. Dixie pointed out that
these were the very criteria the Union relied upon to make
its case of discrimination (witness Dixie's questions
dictated to Brown's secretary just a short time previous).
Dixie also objected to the provision requiring the Union to
refrain from publicizing any discrimination problem to the
employees, the union membership or the general public
prior to attempted adjustment thereof under the
procedures set out in the company proposal.
Dixie objected initially to the provisions requiring the
Union to agree: (1) that no known discrimination existed
in the plant as of the date of execution of the contract,
and (2) to exclude discrimination cases from the grievance
and arbitration machinery established under the contract.
As to the former, Brown proposed that the parties review
the work histories of every employee in the unit (see the
first sentence of 30.5 which the Union accepted) and
adjust every question of alleged discrimination prior to
execution of the contract so the parties could in good faith
so stipulate, noting that any cases of alleged
discrimination developed thereafter would be processed in
accordance with the procedure set out in the proposal
The Union appeared to accept this program for
adjustment of alleged cases of discrimination. As to the
exclusionary provision, Brown and Dixie discussed the
Civil Rights Act of 1964 and agreed that any cases of
provable wage or classification discrimination based solely
on race were amenable to administrative and judicial
adjustment under the provisions of that Act if not
adjusted under the contract procedures proposed by the
Company In recognition thereof, Dixie proposed and
Brown accepted an amendment to 30.7 after "agencies"
adding the words "and courts "
On May 23, Brown sent a typed copy of the material
which Dixie had dictated on May 19 on the question of
discrimination to Dixie for his perusal and editing. On
June 2, Dixie returned the document to Brown with a few
minor changes thereon. On June 10, Brown wrote Dixie
stating that he had completed his analysis on the alleged
racial discrimination situations suggested in Dixie's
statement and that the cases cited (differences in rates of
pay within classifications between whites and Negroes and
differences in classifications and rates of pay between
whites and Negroes allegedly performing the same or
similar work) were explainable on factors other than race.
He proposed that the parties meet as soon as possible to
select the consultant suggested in 30 6 of the Company's
proposal so that his services might be utilized in analyzing
the employment histories of all employees to adjust
disputes involving racial discrimination, if any, and to
negotiate on other provisions of the contract. This was the
375
last exchange between the parties concerning the
discrimination issue prior to the strike of July 12. Up to
the time of the strike, the Company neither withdrew nor
modified the two proposals discussed heretofore, despite
the apparent illegality thereof
A difference in wage rates between a Negro and a white
employee in the same classification may be justified on
many grounds - a difference in hiring dates, with a
longer-service white having progress further in the rate
range than the Negro, a difference in abilities in favor of
the white which, under a merit rating system, would
justify a higher rate within the classification for the white
(assuming a bona fide difference); the possession of more
varied or residual skills by a white than by a Negro
enabled the utilization of the white at jobs in the plant
which the Negro could not perform, or his utilization on a
wider spectrum of the work within the total compass of
the classification than the Negro; etc. One or more of
these reasons, or other reasons also might explain a
difference in classifications and wage rates between a
Negro and white performing the same work. However,
what of the case where the facts disclosed that the Negro
had the earlier date of employment in the classification,
possessed superior skills and had a higher production rate
but the Negro nevertheless was placed in a lower
classification at a lower rate or was in the same
classification at a lower rate' In such a case, the wage and
classification disparity would be the key evidence
supporting a charge of racial discrimination, but, under a
literal application of the proposed language of 30.2 2 and
30.2.4, "such disparity shall not be considered
discriminatory as such term is defined herein " It appears
that the Union would be barred from processing a case on
behalf of a Negro employee in that situation, unless one
reads the last sentence of the definition clause (that
disparity alone is no indication of discrimination) modifies
the literal application of 30 2 2 and 30.2.4 to mean that
the mere existence of disparity in wage rates and
classifications shall not be sufficient evidence, in and of
itself, to warrant a finding of discrimination The Trial
Examiner is unable to read this meaning into the two
sections and, therefore, finds that the proposal in these
areas would preclude the Union from processing the case
described.
The next question is whether these proposals would
prevent the Union from discharging its duty of fair
representation
In July of 1965, the Board certified to the parties that a
majority of the Company's employees in an appropriate
unit in a secret ballot had designated the Union as their
exclusive representative for the purpose of bargaining
collectively with the Company concerning their wages,
hours and other conditions of employment. Under Section
9 of the Act, that certification gave the Union the power
to enter into binding agreement concerning the wages,
hours and working conditions of all the employees in the
unit However, the statutory grant of such power levies a
corresponding responsibility to represent all such
employees fairly, i.e., in a nondiscriminatory manner,
Ford Motor Company v. Huffman, 345 U.S. 330 The
Board has held that failure to so represent constitutes
ground for revocation of a Union's certification,
Independent Metal Workers Union, Local No I (Hughes
Tool Company), 147 NLRB 1573; Local 1367,
International Longshoremen's Association (Galveston
Maritime Association), 148 NLRB 897. More recently, a
majority of the Board (with judicial approval) extended
the doctrine, holding that a breach of such duty by a
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union violated Section 8(b)(1)(A), (2), and (3) of the Act,
Local Union No 12, United Rubber, Cork, Linoleum &
Plastic Workers of America, AFL-CIO, 150 NLRB 312,
enfd 368 F 2d 12 (C A 5) In addition, violation of such
duty exposes the Union to suit for injunction and/or
money damages under Section 301 of the Act, Humphrey
v Moore, 375 U S 335, Vaca v Sipes, 386 U.S. 171,
with further exposure to liability under Section 703(c)(1)
of the Civil Rights Act, 42 USCA Sec 2000e-2(c)(l)
On March 8, the Union commenced to correlate data
with regard to each employee's job duties, job
classification, rate of pay, color and union membership
On the basis of that analysis, it appeared to the Union
that wage inequities existed (1) between negro and white
employees within the same job classifications and (2)
negro and white employees performing the same work but
in different job classifications at different rates of pay. In
both these areas, the Union believed it discerned a pattern
of discrimination wherein the Company paid Negroes
lower wage rates and assigned them to lower wage
classifications than whites performing the same work On
March 28, the Union furnished the Company with the
tabulation of employee names, colors (white or Negro),
classifications, job duties and rates of pay upon which it
based its belief. At that time the Union proposed a
substitute for the general antidiscrimination provision
agreed upon at an earlier date, which substitute was
specific in barring wage and/or classification
discrimination on the sole basis of race, and suggested the
Company study the union tabulation for examples of the
existing situations which needed rectification (job
classification upgradings and wage increases which would
equalize the classifications and wage rates of all
employees performing the same work, regardless of color)
Clearly the Union's proposal was within the normal range
of compulsory bargaining subjects, i e , wage adjustments.
Instead of responding to the union suggestion that it
study the union tabulation and make a rational
explanation of those discrepancies which the tabulation
showed and adjust those where no such explanation was
possible, on April 11 the Company proposed that the
Union agree to foreclose itself from advancing any wage
adjustment proposal for any Negro employee based on
evidence that such negro possessed equal or superior
skills, service and productive efficiency as whites
performing the same work but receiving higher pay and a
higher classification ranking At the same time, the
Company maintained the position it had taken
continuously on this issue that there was no racial
discrimination in the plant meanwhile ignoring the
union tabulation and failing to submit any information
which would explain the differences appearing therein on
other than racial grounds At the May 19 meeting, the
Company persisted in this position and on June 10, while
suggesting meetings at some later date after a neutral
consultant had been chosen to review the wage histories of
all employees in the unit and discuss the 24 specific
instances the Union had previously cited of what it
believed to be obvious cases of wage discrimination based
on race, nevertheless repeated its assertion that no
discrimination existed and stated the cited cases were
without merit
I find that were the Union to accept the Company's
proposed 30 2 2 and 30 2 4, it would be foreclosed from
prosecuting any case on behalf of a negro employee who,
despite equal length of service, skill, productivity, etc ,
with a white performing the same work, nevertheless
received a lower rate of pay and a lower classification,
and further finds that acceptance of those provisions by
the Union would breach its duty to fairly represent the
Company's employees in the unit and expose it to legal
liabilities under Section 301 of the Act and Title VIi of
the Civil Rights Act
J The Alleged Supervisor Threats of April-June
I The allegations
It is alleged that in April and May Plant and
Production Superintendent Dubois told employees that the
Company would never deal with a union, that the
Company did not intend to sign a union contract (a repeat
of his March statement), that the employees would be
receiving higher wages if there wasn't a union, and that if
a union contract ever was reached, the employees'
working hours would be reduced
It is alleged that Foreman Nearoup Howard on or
about April 15 also told an employee that he was not
receiving a merit increase because of the Union, that
Foreman Foman Tyler made a similar statement on or
about May I, plus statements on or about that date and
on or about June 5, that working hours would be reduced
if any labor contract was reached, that if the employees
went on strike, those employees who did not strike would
receive promotions and wage increases while those who
struck would be replaced by standby crews the Company
had ready and waiting It is alleged that Foreman Jerry
Ashy told an employee on or about May 12 that he was
not receiving a merit increase because of the Union and
that on or about May 15 Warehouse Foreman George
Adams told an employee the Company did not intend to
sign a union contract.
2. Jon Dubois
Employee Sidney Benjamin testified that, while he was
sweeping up in his work area sometime in May, Dubois
approached him and, in the course of their conversation,
in response to an inquiry from Benjamin about a raise he
had requested earlier, stated that he could not give
Benjamin a raise just then because of the Union, that
there were many other employees who deserved raises but
he couldn't give them any either just then because of the
Union, and that the employees would be making more
money if it were not for the Union Benjamin also
testified to a conversation a few weeks later at the plant in
which Dubois asked him what he thought about the Union
and countered the response it was all right with the
statement that the Company just could not operate with a
union, and that when queried as to his reason for that
statement, Dubois cited the example of Tex-Tube, another
company, stating that it had a 6-day weekly work
schedule until it was organized but after the Union got in
and secured a contract the work schedule dropped and
closed with the statement that Southwestern Pipe would
shut its doors before it would have a union in the plant,
before it would sign a contract with the Union.
Employee Mack Bowie testified that in the latter part
of April or early part of May Dubois approached him at
the job and, inter alia, commented that the Brown & Root
operation was so much larger an operation within the
complex than Southwestern Pipe that the Southwestern
Pipe mill would be closed down before a union was
permitted to get onto the premises through the back door
Dubois confirmed the testimony of Benjamin and Bowie
that conversations had taken place between them about
SOUTHWESTERN PIPE, INC.
the times noted, but stated that with regard to a raise, all
he did was try to explain to Benjamin the way that an
employee received a wage increase and that it was a "little
different that what it had previously been." Dubois
confirmed that he asked Benjamin what he thought of the
Union in another conversation, but denied that he told
Benjamin that the Company could not operate with a
union or that Southwestern Pipe would shut down before
letting a union in, but merely tried to explain some of the
advantages and disadvantages of the Southwestern Pipe
way of working as compared with a unionized plant, and
may have contrasted Southwestern Pipe with Tex-Tube
and pointing out that unions usually were opposed to a lot
of overtime, that overtime had been cut down at Tex-Tube
after the union got in there, that a lot of overtime was
being assigned at Southwestern Pipe, and that employees
who worked a lot of overtime had higher yearly earnings
than they would if they just worked a 40-hour week, even
if their rates were higher.
Dubois conceded he discussed the relative sizes of the
Brown & Root and Southwestern Pipe operations and the
fact the pipe mill was located behind the former's main
offices (at its "back door"), but denied that he told Bowie
the pipe mill would be closed down before a union was
tolerated on the premises
3 Nearoup Howard and Foman Tyler
Employee Odis Dolphus testified that in late April he
addressed an inquiry to Foreman Nearoup Howard about
a pay raise he assumed he would receive when he was
assigned to operate the test rack and still hadn't received
when assigned to operate the grider He testified that
Howard informed him that he couldn't be given a raise
"because the Union had them tied up" without further
explanation Dolphus testified that in May another
foreman, Foman Tyler, asked him if he had received his
pay raise yet and, receiving a negative answer, stated "this
is what the Union will do for you " Dolphus testified that
Tyler asked him if he could get by on a 5-day workweek
(Dolphus was working 6 days and receiving 1 1/2 time for
the sixth day) and commented that was what the Union
was doing, cutting it back to a 5-day week Dolphus also
related a conversation in June with both foremen wherein
he asked about the possibility of his promotion to a
foreman job vacancy, in the course of which Tyler told
Dolphus the Company had a full crew waiting to take the
places of any employees who went on strike and those
employees who stayed in the plant when the strike came
would get the good jobs vacated by the strikers
Howard testified that he recommended a wage increase
and job classification change for Dolphus and that the
Company's proposal therefor and request for concurrence
therein was submitted by the Company to the Union in
writing on April 14 (in the same document wherein a
wage increase and classification change was proposed for
Frank Smith) He testified he correctly informed Dolphus
in late April that his increase was tied up by the Union in
that it was awaiting union action on the April 14 proposal
(which was approved as to the increase and denied as to
the classification change on May 19)
Tyler denied that he told Dolphus the Company had a
full crew waiting to take over the jobs of any strikers and
that the good jobs vacated by the strikers would be filled
by those employees who did not join in the strike 14
"Respondent states at p 112 of its brief that it did have a full crew
available to take over operation of the plant in the event a strike occurred
4 Jerry Ashy
377
Employee Albert Butler testified that about 2 months
before the July 12 strike he asked Foreman Jerry Ashy
about a raise and Ashy replied that Butler would have to
let the Union get his raise. Ashy testified he did not recall
the statement attributed to him but very likely he did tell
Butler that he would not give him a raise and that Butler's
only recourse was to have the Union try to get him one
5 George Adams
Employee Floy Shepherd testified that around the
middle of May" Foreman George Adams engaged him in
conversation at his machine, asking him what he thought
about a change from fixed to rotating shifts and that he
replied it didn't bother him one way or the other but that
he favored the change, that Adams then commented on
the Union, stating that it was never going to get a
contract (Shepherd was a union member of the
negotiating committee) Adams denied ever having a
conversation with Shepherd regarding the Union or a
contract
6 The statements - summary
I find that the subject of wage increases was discussed
between Jon Dubois and Sidney Benjamin, Nearoup
Howard and Odis Dolphus, Foman Tyler and Odis
Dolphus, and Jerry Ashy and Albert Butler during April
and/or May, that Ashy told Butler he would not give him
an increase and it was up to him to try to get an increase
through the Union, that Howard and Tyler informed
Dolphus of the actual situation regarding his wage
increase, i e., that it had been proposed by the Company
and was held up awaiting the Union's concurrence
therewith, that Dubois went beyond an explanation of the
procedure for securing wage increases to suggest both that
Benjamin and other employees were being denied wage
increases and higher earnings because they decided on
union representation and to support traditional union
objectives, and that Tyler went beyond his explanation of
the status of Dolphus' wage increase to suggest that
Dolphus' continued support of the Union's effort to
accomplish its traditional objective of wage rates sufficient
to support a fair standard of living on a working schedule
of 8 hours per day, 5 days per week, would result in the
Company's lowering of his and his fellow employees'
workweek and weekly wages i 6
I further find that the subjects of a union contract and
plant closure were discussed by Dubois with both
Benjamin and Bowie and by Adams with Shepherd in
April and/or May and that in the course of those
discussions Dubois and Adams conveyed the message that
the Company was not going to tolerate union standards or
union representation on the premises jointly occupied by
and that it did so when the strike occurred within the span of one shift
after the time the strike commenced
"He later changed his testimony , attributing a June date to the
conversation , by relating it as having occurred after the change from fixed
to rotating shifts , which occurred in the latter part of June
"When "suggestions" or "predictions " are statements of what the
employer can and will do , as here, they constitute unlawful threats and not
privileged expressions of opinion under Sec 8(c) of the Act See N L R B
v Kolmar Laboratories , Inc , 387 F 2d 833 (C A 7), Wausau Steel
Corporation v N L R B, 377 F 2d 369 (C A 7), International Union of
Electrical, Radio and Machine Workers , AFL-CIO v N L R B, 289 F 2d
757 (CADC)
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brown & Root and Southwestern Pipe
I further find that Tyler informed Dolphus that the
Company had a crew standing by to replace any Company
employees who engaged in a strike and that those
employees who refrained from striking would receive
preferential treatment in filling any job vacancies created
by the strike
It is apparent that the supervisors took their cue in
making statements to the employees from the propaganda
distributed by the Company in the course of opposing the
Union's efforts to organize the plant, since much of that
material draws upon comparisons with Tex-Tube, states
that Southwestern Pipe will not agree to the contract
provisions attained by the Union there, that the Union
will be forced to strike to attempt to get them, that the
Company will replace the strikers, that all the employees
will gain for their union support is loss of their jobs, and
that the Company as the result of the union certification
had to temporarily refrain from implementing its program
for wage reviews and increases It was not difficult for the
supervisors, reading this line, to go one step further and
predict plant closure before acceptance of the Union and
the contract terms it normally sought The employee
witnesses' testimony to the conversations was substantially
corroborated by the supervisor witnesses except in the key
details, and it was well for them to do since, as the
Company points out, its official policy announced by its
top officials, was that only its top spokesman was to
enunciate the Company's position and policies vis-a-vis the
Union.
My findings above are based upon the factors just
recited plus the nature and character of the testimony as it
developed at the hearing and my observation of the
demeanor of the respective witnesses
7. The effect of the statements
The Trial Examiner finds that Ashy' s statement to
Butler and the statements of Howard and Tyler to
Dolphus of the actual situation regarding Dolphus' wage
increase were noncoercive I find that Dubois and Tyler
interfered with, restrained , and coerced Benjamin and
Dolphus by Dubois ' statement that Benjamin and his
fellow employees ' support of the Union was causing the
Company to withhold wage increases from them that they
would otherwise receive and by Tyler' s statements that
Dolphus and his fellow employees ' continued support of
the Union would cause the Company to reduce the
scheduled workweek and that all strikers would be
replaced immediately and any good jobs vacated by them
given to nonstrikers I also find that the statements of
Dubois to Benjamin and Bowie and of Adams to
Shepherd that the Company would close the plant before
it let a union in or signed a union contract interfered with,
restrained , and coerced the three employees named.
8. Responsibility of the Company therefor
K The June Shift Changes
Prior to the Union's July 1965 certification and to June
of 1966, the Company maintained a three-shift operation
(8 a m -4 p m, 4 pm - midnight, midnight - 8 am)
and made permanent employee shift assignments Many
long-service employees, including many of the union
leaders, were assigned to the less desirable afternoon
(swing) and night (graveyard) shifts.
The Union proposed early in the negotiations that the
current practice of fixed shift assignments be preserved
but that employees be afforded the right to exercise shift
preference on the basis of their length of service
(seniority), and that all existing benefits not specifically
enumerated in the contract be continued unchanged during
its term except on mutual agreement between the
Company and the Union to the contrary The Company
countered with language in its management rights
provision proposal which it believed would assure to it the
sole and exclusive right to assign employees to shifts as it
pleased and a waiver provision proposal which it believed
would assure to it complete freedom of action in areas not
specifically set out in the contract
The parties agreed at the outset that any agreements
reached during the negotiations were tentative and
conditioned on agreement on a complete contract and at
no time subsequent modified this agreement The Union
further indicated during the negotiations that all its
proposals were to be considered active proposals pending
complete agreement. The Company actively pursued its
waiver and management rights proposals."
The Company was acutely aware of dissatisfaction
among the swing and graveyard shift employees and the
consequent appeal of the union proposal, particularly to
the long-service employees. In early June, the Company
had its supervisors conduct a written poll among the
employees to determine their receptivity to a change from
the existing system of employee assignment to fixed shifts
to a system of 4-week rotating shift assignments, i e , 4
weeks on day shift, 4 weeks on swing shift, 4 weeks on
graveyard shift, etc Generally the day shift employees
opposed the change while the employees on the other
shifts supported it "
In any event, on June 10 the Company posted the
following notice on its bulletin boards
Plant Notice
Beginning Monday, June 13, 1966, regular shift working
hours will become effective as follows
Day Shift 7:00 A.M. to 3 00 P M.
Swing Shift 3 00 P.M. to 11 00 P M
Graveyard Shift 11.00 P.M to 7 00 A M.
Beginning Monday, June 20, 1966, certain departments
within the plant will begin a trial rotation of shifts on a
4 weeks rotation basis. Your immediate supervisor will
While the Company disclaims responsibility for the
statements made by the supervisors on the ground its
official policy differed from that expressed by such
supervisors and its chief spokesman so declared, it has
generally been held that the Company is nevertheless
responsible therefor (see cases cited in Section II, H,
above and N L R B v. Schaefer-Hitchcock Company,
131 F.2d 1004, 1007 (C A 9), N L R. B v. Cities Service
Oil Company, 129 F.2d 933, 937 (C.A 2), and I so find
"The respective proposals were discussed at various negotiations sessions
both prior to and during the 10(b) period and were tentatively resolved in
November 1966 (after most of the Union's supporters among the
employees had been replaced in the plant and the strike had been
abandoned ) with the Union 's acceptance of the Company 's proposals and
abandonment of its own
"A company official advised an employee who wished to change his
response in the poll that he would make the change but it did not really
matter since the Company was going to make the change anyway
SOUTHWESTERN PIPE, INC
advise you regarding this change
/s/ Norman Whitaker
Norman Whitaker
Plant Manager
The changes were carried out in accordance with the
notice
It is undisputed that the Company did not notify or
consult with the Union at any time prior to conducting its
poll, posting its notice or changing the employees' shift
starting times and shift assignments
On the basis of the foregoing, the Trial Examiner finds
that the Company unilaterally and without prior notice to
or consultation with the Union in early June queried its
employees' desires re changes in the shift assignment
system by means of a written poll, on June 10 announced
its decision to change from a fixed shift assignment
system to a rotating shift assignment system on a 4-week
rotation and to change the start and quitting times of each
shift, and on June 13 and 20 made the respective changes,
and thereby failed or refused to bargain in good faith,
N L R B v Katz, 369 U.S 736, Smith Cabinet
Manufacturing Company, Inc, 147 NLRB 1506, etc
L. The Union Reactions and Reports
The Union generally kept its membership informed on
matters affecting them and its reaction to the events which
transpired in the negotiations and at the plant through
Sunday meetings and the constant contact between its
committeemen and the employees at the plant.
At about the same time he felt it necessary to bring
Dixie into the negotiations (March), Ray reported his
reaction to the Company's tactics and strategy in the
bargaining sessions (see Section II, F, above) at a union
meeting (March 13) and took a strike vote The vote was
practically unanimous The International Union about a
week later authorized Ray to release its strike sanction
whenever in his and the committees' judgment the
situation warranted a strike
Dixie attended a membership meeting in early May. He
reported his discouragement over the Company's conduct
in the negotiations, particularly with reference to what he
considered its elaborate and unlawful proposals to
establish a complaint procedure wherein individual
employees could bargain with the Company concerning
wages, hours and working conditions and reach agreement
thereon without the intervention of the Union so long as
the matter was not specifically covered by the contract
and to establish a procedure for processing discrimination
disputes wherein the Union would be barred from utilizing
the basic evidence it had developed on the subject. Dixie
confirmed Ray's earlier expressed view that the Company
was not bargaining in good faith
The committeemen likewise were conveying to the
employees during the entire 10(b) period reactions similar
to that expressed by Dixie and Ray based upon the
Company's actions and events described in this report.
M. The Company Motive During the 10(b) Period
Preceding the Strike
As noted heretofore, at the commencement of the 10(b)
period (early February), the parties had reached tentative
settlements in 14 subject areas and partial agreement in 2
others. Except in minor matters, all of the settlements
reached concerned subjects either where the Company was
legally obligated to perform (payment of 1 1/2 time after
40 hours - Fair Labor Standards Act; veterans
reemployment rights - Veterans Reemployment Act;
379
union recognition - National Labor Relations Act, etc )
or where the settlement conformed to existing company
practices (lunch periods, shift schedules and premiums,
etc ) By the last negotiations session prior to the strike
(May 19), the parties reached tentative settlements in only
three more areas (leaves of absence, jury service and
retention of the Company's profit-sharing and pension
plan) and those on the basis of existing practice.
While Section 8(d) of the Act limits the obligation of
the parties to meeting at reasonable times and places and
does not compel them to agree to any proposal or to
make any concession, it and Section 8(a) of the Act does
require that each party bargain in good faith with respect
to wages, hours and other terms and conditions of
employment
Based upon the totality of the Company's conduct
heretofore enumerated, I find that in the period
commencing with early February to the date the strike
occurred the Company did not bargain in good faith
There is no doubt of the Company's initial opposition
to having a union in the plant; witness its campaign
propaganda Its continued opposition to the Union is
evidenced by its refusal to go beyond the technical
minimums (meeting, discussing and making concessions
only in areas of legal obligation, conformity to existing
practice or on minor matters) in the negotiations during
the 10(b) period prior to the strike which, coupled with its
active advancement of proposals no union could possibly
accept (individual bargaining, bar from use of wage data
in discrimination cases), meanwhile making unilateral
changes in working conditions accompanied by threats of
earning reduction, job replacement, no contract protection
and plant closure, is hardly conducive to a finding that
subsequent to the Union's certification the Company
accepted the employees' choice of union representation
and was negotiating with the Union in a good-faith
attempt to arrive at a mutually acceptable contract
Based upon his earlier findings concerning the
threatening nature of the Company's February 11 letter,
Dubois' March threat to Flowers, the Company's April 14
unlawful nondiscrimination proposal, the threats by
Dubois, Tyler, and Adams to Benjamin, Dolphus, and
Shepherd of economic loss, plant closure and no contract,
plus the advancement of obviously objectionable proposals
such as individual bargaining on matters not covered by
the contract coupled with a proposal wherein the Union
would waive its right to bargain on such matters and the
Company would have complete discretion therein, etc , I
find and conclude that the Company was not bargaining
in good faith in the 10(b) period immediately preceding
the July 12 strike.
N The Gray Discharge
Word reached the plant manager, Norman Whitaker,
that an altercation had taken place on July 11 between
James H. Gray and his supervisor in which the latter
upbraided Gray for his failure to comply with a company
requirement to wear safety shoes and the former became
abusive and threatening to the foreman. Whitaker decided
to talk to Gray about the matter and get his story and so,
on July 12, he sent word that he wanted Gray to report to
his office when he came into work (Gray worked the 11
p.m.-8 a in. graveyard shift). Gray refused to go unless
accompanied by his committee (Gray himself was a union
committeeman). Whitaker directed a supervisor to tell
Gray either to report to his office, alone, or leave the
plant. Gray elected the latter course.
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On September 22, the Charging Party commenced its
unsuccessful effort to persuade the General Counsel to
issue a complaint on its charge that Gray was discharged
because of his activities for and membership in the Union
The General Counsel refused to issue such complaint, in
essence finding that Gray was discharged for cause and
not because of his activities on behalf of or membership in
the Union. In view of this determination by the General
Counsel, the Trial Examiner denied the Charging Party's
motion in the course of the hearing to amend the
complaint and add the name of James H Gray to the list
of alleged discrimmatees contained on an attachment
thereto as to whom reinstatement was sought
On December 8, 1967, the Charging Party in essence
renewed his motion by letter, citing the case of Texaco,
Inc , Houston Producing Division, 168 NLRB No 49, as
grounds therefor. Respondent opposed on the ground
Texaco was not in point since no proceeding was
conducted regarding Gray's alleged misconduct at which
any question of his entitlement to representation could be
raised and Gray elected to leave the plant without at any
time knowing the reason why Whitaker wanted to see him
(it could have been to discuss an insurance claim, another
employee, etc ) He also noted that the General Counsel
had control of the pleadings and had seen fit not to add
Gray's name to the list of alleged discrimmatees and that
the issue had not been litigated before me. The General
Counsel also filed opposition on the ground the Charging
Party's letter was improperly filed as a supplemental brief
not authorized by the Board's rules and because the
General Counsel fully considered the Union's charge with
respect to Gray with awareness of the fact that complaint
had issued in the Texaco case and decided that a similar
complaint was not warranted in this case and the Texaco
decision in nowise changed that view On January 2, 1968,
the Trial Examiner advised the parties he would adhere to
the ruling made at the hearing denying Charging Party's
motion to amend the complaint to include James H. Gray
as an alleged discrimmatee
The record discloses that Whitaker wished to see Gray
in order to query him with regard to a reported
altercation between Gray and his foreman the previous
day, clearly it is possible (if not probable) that if in that
interrogation Whitaker secured admissions from Gray that
he had been abusive and threatened his foreman, discipline
would have been forthcoming. A question then arises as to
whether Texaco stands for the proposition that an
employee is entitled to union representation on his request
at an interrogation leading toward possible discipline, does
it follow, then, that on the basis of the record disclosure
that Gray was discharged for exercising his lawful right to
refuse to attend a disciplinary interview without union
representation support a finding that a strike based in part
on that discharge was an unfair labor practice strike9
In my view such a finding would be supportable were it
not for the fact Gray did not know but could only have
suspected that Whitaker intended to conduct a disciplinary
interview; this same state of knowledge concerning the
character of the interview must be imputed to the
employees and the Union. Had Gray attended Whitaker
as requested and, upon learning that Whitaker wished to
secure admissions from him on the basis of which
disciplinary action was to be taken and which were to be
used as evidence against him in the event he and the
Union protested, denial of his request for union
representation at that point and discharge for refusal to
participate without it would come within the purview of
the Texaco case and warrant consideration on the issue of
whether a subsequent strike in protest of such a discharge
was an unfair labor practice strike
0 The Strike and its Causes
When the employees on Gray's shift learned what had
happened and other committeemen were apprised thereof,
it was felt that this was the final straw, that this was the
finishing touch to the frustrations and dissatisfactions
which had developed among them over the reported lack
of progress and failure of the Company to bargain in good
faith in the negotiations They, therefore, went out on
strike shortly before midnight on July 12.
Both employees and committeemen testified their
motivations in participating in a strike following the Gray
discharge was a mixed bag, triggered by the discharge but
resulting from their accumulated frustrations over the
Company's actions noted heretofore as evidence of its
failure to bargain in good faith. On consultation between
Ray and the committee, the Union's formal strike
sanction was released for the same reasons.
I therefore, find that the Company's failure or refusal
to bargain in good faith in the negotiations preceding the
strike and its effecting unilateral changes in working
conditions and its threats to employees were substantial
motivating factors precipitating the employees' decision to
strike on July 12 and the Union's decision to sanction and
support such strike
P The July 13 Letter
The next day after the strike commenced, the Company
by Attorney Brown sent the following letter to the Union
Mr. C T. Ray
United Steelworkers of America
1104 Continental Bldg
Houston, Texas
Re. Southwestern Pipe, Inc
Dear Mr Ray
As you know, the strike which commenced just after
midnight on the morning of Wednesday, July 13, 1966,
occurred as a walk-out lead by J H. Grey. Mr. Grey's
supervisor had instructed him, when he had arrived at
work for the beginning of his shift, to report to the
plant manager. Mr Grey refused to carry out these
instructions unless he could carry with him a
committee, and he was told by the foreman that the
instructions were for J. H. Grey to report and that
unless he did report as instructed he would not be
allowed to work J H Grey refused to carry out these
orders and left the premises taking with him many of
the other workers. For this act of insubordination and
refusal to obey orders, Mr. Grey has been terminated
as an employee of Southwestern Pipe, Inc.
With respect to the other strikers, the plant manager
has been given the following instructions.
I J H Grey is terminated immediately for
insubordination.
2. All other strikers are terminated immediately for
failure to report to work
3. All employees who do report to work, even after
initially participating in the strike, will be reinstated
except:
(a) J. H Grey (b) any other person who has
been permanently replaced.
SOUTHWESTERN PIPE, INC.
4 Temporary replacements are to be employed
where ever required in order to continue operation of
the plant
5 Permanent replacements for all strikers will be
obtained as quickly as qualified persons can be
recruited In this connection (a) no regard will be given
to shifts or department assignments (b) Primary
emphasis will be placed upon replacing men in key
positions in the mill.
6 An attempt will be made to fill the vacancies in
key positions by promotion of existing employees who
are continuing to work and who are qualified to fill the
positions vacated by strikers
We will request that you convey to all of the striking
employees that you represent a full explanation of this
action being taken by the Company We hope that you
will prevail upon the employees to call off their strike
and return to work immediately so as to minimize the
risk that they will lose their position by replacement.
Very truly yours,
/s/ William A. Brown
William A. Brown
The General Counsel and Charging Party contend that
by this letter (and termination slips sent the individual
employees containing the notation, termination date -
July 13, 1966 reason for termination - failure to
report for work) the Company discharged employees who
participated in the strike.
The Respondent contends that the word "terminate"
does not mean "discharge" and is only an administrative
device employed by the Company for its convenience in
closing pay records prior to end of the normal pay periods
to permit immediate payment of wages due and for its
effect in similar areas (pension and profit sharing, hospital
and surgical insurance, etc ).
It is noted at the outset that both J. H Gray and all
other strikers were "terminated", however, the Company
does not quibble over the use of the word "discharge" as
correctly characterizing its action concerning Gray
It is notable that the letter of July 13 carries out the
exact terms of the February It discharge threat and
contains the very promises and assurances expressed by
Foreman Tyler to employee Dolphus - that the strikers
would be replaced immediately and the nonstrikers would
be promoted. In addition, the writer of the letter - Mr
Brown - stated to Union Representative Smith when he
advised Brown several of the strikers were coming to the
plant to collect their checks that. "They are no longer
employees of the Company. Our position is that they have
been terminated and we don't want them around our
property any longer " In addition, the Company informed
the Texas Employment Commission in response to an
inquiry as to the reason for their unemployment that the
strikers' "employment was terminated on July 13, 1966
when (they) failed to report to work because of (their)
participation in a labor dispute " Certainly the Company's
action was consistent throughout - and in accord with a
provision of its personnel manual for both Brown & Root
and Southwestern Pipe, wherein it is directed that
employees shall be terminated for failure to report to
work "in all cases of failure to report because of labor
distrubances, strike, picketing, etc."
The Company correctly states that it did restore to
employment strikers who abandoned the strike and
applied for a job before their former jobs were filled by a
replacement. However, this does not destroy the message
conveyed by the letter - that all strikers were discharged;
that permanent replacements were being hired to replace
381
all strikers, and that only strikers who abandoned the
strike and applied for work before permanent
replacements were secured for their jobs would be rehired.
It is the message conveyed to the employees that is
determinative. N L R B v Comfort, Inc , 365 F.2d 867
(CA 8).
Based on the foregoing, I find that by its July 13 letter
the Company discharged those of its employees who
engaged in a strike commencing July 12 because of their
participation in the strike
Q. The Alleged Supervisor Statements of July
Employee Frank Smith testified that about a week or
10 days after the strike started Superintendent Dubois
stopped his auto near the picket tent outside the plant
gate and he asked Dubois to loan him $5, to which
Dubois replied that he didn't have any money and
suggested that Smith come back to work and earn some;
that he replied he would not come back until the
Company signed a contract, to which Dubois rejoined
with the statement that "This Company is not going to
sign a contract I have told you over and over that Brown
& Root will never sign a contract " Smith testified that
employee J C. Bradshaw then came near and asked
Dubois when the Company was going to sign a contract,
to which Dubois replied that there wasn't ever going to be
any contract
Neither Bradshaw nor Glover, who Smith testified
responded in the affirmative when he asked him if he
heard Dubois' statement, corroborated Smith's testimony.
Smith's pretrial affidavit stated that Dubois was on foot,
Dubois concedes on a few occasions he spoke to the
pickets on going off shift from his auto, that Smith did
ask him for money on one occasion which he refused to
supply on the grounds he did not have any, but denied any
conversation with Smith regarding a contract
It is difficult to reconcile Smith's testimony that Dubois
stated at the gate he had told Smith over and over that
Brown & Root will never sign a contract with his later
testimony that Dubois did not make a similar statement
to him at any previous time It is likewise noted that his
testimony as to Dubois' remarks about a contract were
not corroborated by other employees at the picket tent at
the time, and that he said Dubois pulled over and stopped
his car, which would be difficult at a shift change with a
narrow road and moving traffic
Based on the foregoing, I find that Dubois did not state
to Smith about a week or 10 days after the strike started
while in his car proceeding out beyond the plant gate that
there wasn't ever going to be a contract.
Employee J C Bradshaw testified that in late July he
placed a call to Dubois from his home to Dubois' home
after receiving a message that Dubois wanted him to call.
He testified that Dubois tried to persuade him to return to
work, stating he had a large family to support and the
Company had a good job there for him, and when
Bradshaw queried him about getting a contract Dubois
answered that Southwestern Pipe was part of a big
organization and if Southwestern Pipe ceased business,
Bradshaw would have a place in it; that the union attempt
to get a contract with the Company was like his son
telling him he wanted a swimming pool in the backyard,
for which the boy would just get a spanking and an order
to get in the house Bradshaw further testified that'Dubois
reminded him of how some of the machines of the plant
were packaged up in grease when Bradshaw was first
employed and said that was the way they would be again
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
before the Company ever signed a contract with the
Union
Dubois confirmed asking Bradshaw to call him and the
conversation, and stated he wanted to talk to Bradshaw
because he was interested in his personal welfare (though
conceding under cross that he was also motivated by the
Company's need for experienced mill operators at the
plant). He corroborated Bradshaw's testimony that he
solicited him to return to work and warned him he could
have a hard time securing employment if he did not return
and that he referred to the Company being part of a large
organization and capable of taking care of those who
supported it Dubois denied that he made any reference to
the Union's inability to get a contract or stated the
Company would cease business before it would enter into
one
Bradshaw's version is consistent with earlier statements
made by Dubois, and Bradshaw impressed me as an
honest, forthright witness. His testimony is credited
I find that in the latter part of March Dubois interfered
with, restrained, and coerced Bradshaw in the exercise of
his Section 7 rights of the Act by soliciting him to return
to work and threatening him with plant closure before the
Company would sign a contract with the Union, further
finding that such threat was not privileged free speech
under Section 8(c) of the Act
I further find that the Company is responsible therefor
for the reasons cited in Section II, H, and J, above
R. The August Negotiations
The last negotiations meeting before the July 12 strike
began took place on May 19. The parties next met on
August 11. Dixie announced at the outset that his main
purpose was to determine what job openings there were
and to determine if the strike could be settled Brown
asked what had caused the strike. Dixie characterized the
Gray discharge, the shift change, the Company's lack of
good-faith bargaining and Brown's discharge letter of July
13 as unfair labor practices causing the strike and stated
he wanted the men returned to work and a good-faith
attempt to reach a contract settlement. Brown advised
Dixie that the Company was recruiting permanent
replacements for the strikers and that he would advise
Dixie later what jobs were still available by letter. Dixie
did not wish to proceed further, but Brown insisted on a
further discussion of contract differences Dixie repeated
his objections to the legality of the racial discrimination
provisions found unlawful heretofore and told the
Company the Union probably would accept the
Company's position on the balance of the issues to reach
a contract settlement, i.e., the Union was ready to
capitulate if this one matter could be resolved. Brown
asked how Dixie would cure the illegality and Dixie
suggested deleting the objectionable language The
meeting closed with agreement by Dixie to submit a list of
10 names from which the Company was to pick the
discrimination consultant
S The September 9 and Subsequent Reinstatement
Offers
On September 9 Union Representative C. T. Ray
withdrew the pickets from the plant and accompanied
approximately 80 strikers onto the plant premises. He had
previously (September 7) written a letter to Whitaker
stating that the Union on behalf of the strikers "pursuant
to specific authorization from them in this regard herewith
makes an unqualified and unconditional offer on behalf of
each and every striking employee to return to work
immediately or as soon as employment is available
Accordingly, this letter will serve to notify you that each
and every one of the striking employees is making an
unqualified and unconditional application to return to
work for your Company and that each and every one of
them requests that his application be considered as a
continuing offer and application to return to work
whenever employment is available " The Union went on
to set out its position that the strike was an unfair labor
practice protest and that the strikers were entitled to
reinstatement, regardless of replacements, but carefully
pointed out that the offer to return to work was
unconditional and unqualified by this statement of the
union position, nor a waiver of the Union's right to pursue
legal means of redress through this case.
Whitaker had not received Ray's letter prior to the
time Ray and the 80 strikers presented themselves, but
was informed of their intention to return before their
arrival. He distributed two forms to the returnees to fill
out and return to him and announced there were not any
job openings (on August 22 in support of his petition for
an election, Brown stated that the Company had a full
work force of 29 nonstrikers, 11 strikers who had
abandoned the strike and 123 permanent replacements for
the remaining 116 strikers, plus 7 additional employees),
that the replacements who had been hired would not be
discharged and that as vacancies occurred through normal
plant turnover, the strikers' applications would be given
consideration The strikers were offered employment at
construction projects operated by Brown & Root with the
opportunity to return to the Company as vacancies
occurred in their former jobs. From time to time
thereafter, the Company offered jobs to small number of
strikers both at the Company and at Brown & Root, and
from time to time some of the strikers were returned to
their former jobs
On the basis of the foregoing, I find that the strikers
made an unconditional offer to return to work on
September 9, that the Company refused to reemploy them
in their former or substantially equivalent fobs," and that
the Company subsequently did offer individual and small
numbers of the strikers reemployment at their former
jobs.
T. Prolongation of the Strike
I find that the Company's poststrike actions of
discharging the strikers, threatening employees with plant
closure rather than execution of a union contract,
continued adherence to the unlawful aspects of its
proposals noted heretofore and failure or refusal to
reemploy the strikers upon their unconditional application
therefor on September 9 and offer of individual and
sporadic reemployment thereafter as a reasonable
consequence thereof caused the prolongation of the strike.
U The November Negotiations
The only other poststrike negotiation meetings between
the parties beside the August 11 meeting took place on
November 17 and 23
At the November 17 meeting, the Company selected
Dr J B. Jones, Dean of Students at Texas Southern
"I find that offers of construction employment with Brown & Root
Company are not offers of equivalent employment , since such jobs , for the
most part laborer jobs , entail different duties, require outside work under
oftentimes more unpleasant conditions than at the Company, require travel
with consequent transportation difficulties, etc
SOUTHWESTERN PIPE, INC.
University, as the consultant on discrimination, from the
list of 10 submitted by Dixie per agreement on August 1 l
The Union again sought to secure the reinstatement of
the strikers and repeated its position that it was an unfair
labor practice strike The Company adhered to its position
that the strike was economic and that it would reemploy
strikers as and when vacancies occurred in the strikers'
former jobs.
The Union reiterated its position concerning the
illegality of the Company's nondiscrimination proposal;
the Company proposed that Dr Jones be brought into the
negotiation of the language of the discrimination proposal
The Union stated it was its understanding of the company
proposal that Jones would come in to assist in adjusting
cases of alleged discrimination after the contract was
executed, not to assist in the negotiation of a contract.
Finally, the Company on November 23 submitted a
revised proposal on discrimination which the Union
characterized as a major move to meet the objections of
illegality raised by the Union (which indeed they were)
and stated it wished to study them The revisions were as
follows:
30 2.2 It is recognized that the employer follows an
informal system of merit evaluation on the basis of
which wages are determined within the range of wage
rates established for the classification of employee.
Disparity of wage rates for individual employees, within
the range of wage rates for the employee's
classification, pursuant to employer's merit program,
shall not constitute discrimination as defined herein,
notwithstanding the employer's merit evaluation is
shown to be individually unfair, unless it be shown that
the disparities are the result of an intention to
discriminate because of race, color, religion, sex,
national origin or unionism
30 2 4 It is recognized that the employer follows a
system of classifying and compensating individuals on a
basis of individual capability and value as an employee,
taking into account versatility in the types of work they
are capable of performing and the entire range of
variables in human behavior and characteristics, and
that except where the work is of a nature that can be
satisfactorily performed by male or female employees
the Company does not generally follow the principle
that equal jobs (i.e , the same job, or work requiring
equal skill, effort and responsibility) shall receive equal
pay The fact that employees in different classifications
and rates of pay are assigned to the performance of the
same task shall not constitute discrimination as such
term is defined herein, unless it be shown that the
disparities are the result of an intention to discriminate
because of race, color, religion, national origin or
unionism.
There were no further meetings between the parties
prior to the hearing in this case.
v. The Company Bargaining After the Strike
I have entered findings that the Company's bad-faith
bargaining, unilateral changes of working conditions,
threats, striker discharges and refusal to reemploy the
strikers in their former jobs upon their unconditional
application therefor both caused and prolonged the strike
of July 12, a question remains as to whether its conduct
thereafter cured or mitigated the effect of these actions.
On August 11, the Company continued to adhere to its
unlawful proposals despite the Union's indication that if
these could be rectified it was prepared to concede the
383
balance of the disputed contract issues and continued in
the position expressed in its July 13 letter that it would
only reemploy strikers whose jobs had not been taken by
hired replacements.
While in November the Company rectified the
deficiencies in its unlawful nondiscrimination proposal,
this came after the Union had withdrawn its pickets, after
the Union on behalf of the strikers had unconditionally
offered to return to work, and when the Company still
continued in its policy of offering piecemeal reemployment
to the strikers as a when vacancies occurred in their
former employment
On the basis of the foregoing, I find that the Company
continued to bargain in bad faith after the strike and
through the time period covered above.
W Violation of the Act
I find on the basis of the findings which appear in
Section II, A, through V, above that the Company
violated Section 8(a)(1), (3), and (5) of the Act
The Company violated Section 8(a)(1) of the Act.
1. On or about February 1 l by Plant Manager Norman
Whitaker's letter threatening to discharge any employees
who subsequently participated in a strike (see Section II,
D, above),
2 On or about March 15 by Plant and Production
Superintendent Jon Dubois' threat to employee Frederick
Flowers that the Company was not going to tolerate a
Union in the plant (see Section II, H, above),
3 In May by Dubois' coercive interrogation of
employee Benjamin about his union views and threats that
the employees' earnings were detrimentally affected by
employee support of the Union and its objectives (see
Section II, J, above);
4 In May by Foreman Foman Tyler's threat to
employee Odis Dolphus that the Company would lower
the work schedule if the Union succeeded in securing a
contract and would replace any employees who went on
strike and give any good jobs vacated by strikers to
nonstrikers (see Section II, J, above),
5. In May by Dubois' threat to Benjamin that the
Company was not going to tolerate union representation
or the institution of union standards at the plant and that
it would cease operations before permitting either (see
Section II, J, above);
6. In May by Foreman George Adams' threat to
employee Floy Shepherd that the Union was never going
to get a contract (see Section 11, J, above),
7 In July by Dubois' threats to employee J. C
Bradshaw that the Union would never get a contract and
that the Company would cease operations before it would
sign a contract with the Union (see Section II, Q, above);
The Company violated Section 8(a)(3) and (1) of the
Act
1. On July 13 by Attorney Brown's letter discharging
all company employees who participated in a strike
commencing the previous day (see Section II, P, above),
2. On September 9 by refusing to reinstate strikers who
made unconditional application to return to their fobs and
thereafter by its piecemeal offers of such reinstatement,30
(see Section II, S, above),
"Since I find that the strike was caused and prolonged by the company
conduct set out in this section and preceding sections, it follows that the
strikers were unfair labor practice strikers and I so find , unfair labor
practice strikers are entitled to reinstatement upon unconditional
application therefor , without regard to whether replacements have been
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Company violated Section 8(a)(5) and (1) of the
Act.
1. By its April 14 proposal of and insistence through
November 23 by Attorney Brown upon union acceptance
of provisions within a supposed nondiscrimination clause
which would preclude the Union from performance of its
duty to fairly, equally and without discrimination
represent the Company's employees and which would
expose the Union to legal liabilities (see Section II, I,
above),
2 By its June poll by its supervisory staff of its
employees' desires with regard to fixed versus rotating
shifts and its subsequent changes in shift starting times
and to rotating shifts without prior notice to or
consultation with the Union (see Section II, K, above),
3 By its failure and refusal to bargain in good faith
with the Union concerning the wages, hours, and working
conditions of its employees on and after early February
(see Section II, A, through V, above).
X. Disqualification From Reinstatement
The Company alleges in its answer to the complaint
that employees Mack Bowie, R. B Chreene, Ogilivia
Gayfield, Harvey Harps, James Harris, Robert Hill,
James Gray, Odis Lewis, and Frank Smith should be
declared ineligible for reinstatement under any order
issued in this case by reason of their misconduct during
the course of the strike. Evidence was developed by the
Company concerning the conduct during the strike of
these nine strikers and James Miles, James Gray's
brother, General Glover, J. C. Bradshaw, Floy Shepherd,
Leroy Valley, Herman Goldsmith, and Bennie Jones.
1. The Leon Brown incidents
During the period immediately after the strike
commenced, the Company scheduled a two-shift operation
of 12 hours per shift, 7 a.m. to 7 p m., and 7 p.m. to 7
a m On July 14, Leon Brown, a negro employee, left the
plant in the auto of Douglas Phillips, a white employee,
following the completion of their work on the first shift.
There was a line of cars leaving the plant parking lot by
the Bringhurst gate A number of witnesses sponsored by
both the General Counsel and the Company agreed in
their testimony that there were two pickets carrying signs
at the gate and a maximum of 20 strikers scattered
around the area outside the gate, most of them at or near
a tent maintained for the picket captains and pickets
(pickets were maintained at positions other than
Bringhurst), and that cars were parking along both sides
of the road leading out from the gate to the main
highway. As Phillips' auto passed beyond the gate, it
stopped abruptly to avoid collision with an auto driven by
Odis Lewis in which Harvey Harps was a passenger,
which had backed into the intersection from a side cutoff
in order to move in the same direction in which Phillips
was going. Phillips threw his car into reverse and collided
with the car behind him Lewis and Harps both left the
car in which they were; Lewis looked down at the rear of
placed in their jobs and whether such replacement requires the dismissal of
such replacements , Mastro Plastics Corporation v N L R B, 350 US
270 Since all such strikers have a right to immediate reinstatement upon
application , it follows that attempted piecemeal reinstatement to individual
or small numbers of strikers did not extinguish the Company' s liability and
continued violation of the Act , Robert S Abbott Publishing Co , 139
NLRB 1328, N L R B v Poultrymen 's Service Corp , 138 F 2d 204 (C A
3)
his car, came up to Phillips' car window, bent down and
looked in at him. Phillips had the window rolled up and
the door locked. He did not hear Lewis say anything
Harps walked back alongside the other side of Phillips'
car but did not say anything either The two returned to
their car and subsequently drove off In the interim,
however, after Phillips had collided with the car behind
him, he killed his engine, while his car was still standing,
Frank Smith crossed the street in front of Phillips' car,
cursed and threatened Leon Brown for working during the
strike, and struck him a blow in the face (Brown's window
was down). Phillips had his auto started about then and
quickly swung around Lewis' car and headed for the
highway. While he was under way, Brown took a pistol
out of a bag between his legs, opened the door on his side
and fired back toward Smith and others in the area, who
scattered and dropped to the ground. No one was hit
The evidence establishes that Robert Hill was one of
the men carrying a picket sign at the gate when the
Phillips car came through it, and that Chreene, Shepherd,
and Gayfield were three of the persons in the area outside
the gate The evidence establishes that J. C Bradshaw was
in the area for part of the evening, but is conflicting as to
whether he was there at the time the incident described
above occurred Zi
Later that evening, George Gayfield pulled up in a car
outside Brown's house and asked Brown to come out,
saying he wanted to talk to him, and mentioned the
shooting incident Brown refused to come out Gayfield
left. Brown testified that Gayfield did not make any
threats to him.
The next night Brown left the plant in the auto of
Clarion Hightower. A car driven by General Glover with
Frank Smith at his side followed the Hightower car. At a
traffic stop, Glover's car pulled up to the left of the
Hightower car. Smith told Hightower several times to
stop hauling Brown and, receiving no answer, flicked a lit
cigarette against the side of Hightower's head. Glover said
nothing and testified he did not observe the cigarette
incident.
2 The Lou Joffrion incident
On or about July 17, Mack Bowie, James Harris, and
Leroy Valley visited Lou Joffrion at his home. Leroy
Valley directed the others to it, as he was the only one of
the three who knew where Joffrion lived Bowie believed
he was a distant relative of Joffrion , but neither were sure
of it. Bowie and Harris related that the purpose of their
visit was to convey word from C T Ray, the union
representative in charge of the strike , that the Union
understood Joffrion ' s problems and had no objection to
his return to work at the plant (Joffrion had suffered
serious burns which caused a partial loss of physical
ability and required further surgery costing about $7,000,
which the Company was to pay for, and the Company had
kept him at work in a job whose duties he was still
capable of performing , and it was obvious he would have
difficulty securing other employment ) Valley did not
testify Joffrion stated that the three expressed concern
that he might be hurt if he worked at the plant , that many
"I do not find it necessary to resolve the conflict in testimony regarding
Bradshaw's presence at or near the gate during the time the Phillips' car
was stopped on the basis of his ruling below that Bradshaw's reinstatement
is not at issue before him and that in any event mere physical presence
near the gate on July 14, even if established, is not sufficient ground upon
which to base a disqualification finding
SOUTHWESTERN PIPE,
of the strikers were incensed about it, that he told them he
couldn't get another job and that the Company had
promised to pay for needed future surgery, and that they
stated they would tell the boys this A day later, a
molotov cocktail was thrown through Joffrion's front
door, but failed to ignite. General Glover testified he
heard Leroy Valley tell another employee (who was not
called to testify) that he had thrown the device through
Joffrion's front door A written statement taken by
Company Attorney Brown prior to Valley's reinstatement
contains a denial that he had done so.
3. The William Foley incident
William Foley, a negro, continued to work when the
strike occurred. Shortly after the strike began, Frank
Smith and James Gray's brother and another man
followed Foley's auto in a black Chevrolet when Foley left
the plant after completing his shift, and did the same
thing the next day After it was dark on the second night,
a molotov cocktail was thrown at Foley's house. It did not
do any damage. Foley testified that James Miles was in a
car which came by shortly before the device was thrown,
and that it was a red and white Chevrolet In his
statement given to Company Attorney Brown, he stated
that it was dark and he could not identify either man in
the car that came by. It was established by official records
that it was dark at the hour the incident occurred Foley
later stated that he knew it was Miles because he heard
him talking and recognized his voice
4. The Charlester Strong - Frank Moore incidents
Charlester Strong and Frank Moore, both negroes,
worked at the plant during the strike. They did not go
through any of the regular gates in getting to and from
work, but left the premises near a bridge and went up to a
road where Strong's wife picked them up in Strong's car.
On one occasion when they came up towards the road,
they observed a group of men coming toward them,
among whom they recognized Frank Smith, Floy
Shepherd, and Charley Robertson. They ran and the men
pursued them for a distance but ceased pursuit after a
while.
Moore also testified to a conversation with General
Glover in which the latter asked him if he was going back
to work and, on receiving a noncommittal reply, said he
would tell the men if he did
Moore further related an incident at a bar one evening
in which he was accosted by Bennie Jones and Herman
Goldsmith and Jones threatened him if he continued to
work
5 Contentions of the parties
The General Counsel points out that Leon Brown was
not disciplined by the Company for firing his pistol
toward the strikers and contends that a striker should not
be penalized when a nonstriker who commits a more
serious offense is not; the General Counsel also argues
that the Company condoned whatever misconduct the nine
strikers named in the company answer may have engaged
in by the fact it assisted them to secure employment by
Brown & Root Co. During the course of the hearing, the
General Counsel repeatedly asked if the Company was
contending that any strikers other than the nine to whose
reinstatement the Company objected in its answer should
also be denied reinstatement so that he would know if he
INC. 385
needed to prepare and present rebuttal thereto but
received the ambiguous reply that the Company had not
determined whom it might add until it studied the matter
further and the specific reply with regard to J C
Bradshaw and Floy Shepherd that the Company was not
contending that their presence (if established) at or near
the gate at the time of the July 14 shooting incident
barred their reinstatement The Company did not apprise
the General Counsel and the Charging Party prior to the
close of the hearing that it wished to make any additions
to the nine strikers it named as disqualified for
reinstatement in its answer nor did it seek to amend its
answer to include any added names.
In view of the failure of the Company to so apprise the
General Counsel and Charging Party or to amend its
answer, it is my ruling that the disqualification issue as to
any employees other than the nine named in the
Company's answer was neither raised nor fully litigated
before him and, therefore, he shall not consider evidence
as to other than the nine on this issue.
6 Mack Bowie
The sole evidence relating to Mack Bowie concerns his
remarks to Lou Joffrion I find that all Bowie did was to
convey his personal concern over Joffrion's welfare and
that he would seek to soothe any hostility aroused against
Joffrion over his work at the plant and get the word
around as to the reasons therefor I find this evidence
insufficient to support a finding of Bowie's disqualification
for reinstatement
7. R B. Chreene
The sole evidence relating to Chreene is his physical
presence near the plant gate at the time of the July 14
shooting incident I find this evidence insufficient to
support a finding of disqualification for reinstatement.
8. Ogilivia Gayfield
The only evidence re Gayfield establishes Gayfield's
physical presence near the plant gate on July 14 and that
he sought to talk to Leon Brown at his home later that
evening. I find this evidence insufficient to support a
finding of disqualification for reinstatement
9 Harvey Harps
The only evidence about Harps was the establishment
of his presence as a passenger in a car whose back out
into the lane outside the Bringhurst gate on July 14
caused Phillips' car to stop. I find this evidence
insufficient to support a finding of disqualification for
reinstatement.
10. James Harris
The sole evidence relating to James Harris establishes
that he accompanied Mack Bowie to Lou Joffrion's house
on July 17 and was present during at least part of the
conversation. I find this evidence insufficient to support a
finding of disqualification for reinstatement.
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11. Robert Hill
The sole evidence relating to Robert Hill establishes his
presence as a picket at the gate at the time the July 14
shooting incident occurred I find this evidence insufficient
to support a finding of disqualification for reinstatement
12. James Gray
Inasmuch as I denied the Charging Party's motion to
amend the schedule attached to the complaint to add
James Gray's name to it, it is unnecessary to consider the
disqualification issue with regard to him Were it to be
given consideration, I would find that the only evidence
relating to James Gray established his presence in the
vicinity of the Bringhurst gate at the time of the July 14
shooting incident and that such evidence is insufficient to
support a finding of disqualification for reinstatement.
13. Odis Lewis
The evidence establishes that Odis Lewis was the driver
of the car whose backup to turn in the lane leading
toward the main road outside the Bringhurst gate caused
the Phillips' car to stop and that Odis Lewis got out of his
car, inspected its rear, walked back and looked in at
Phillips and subsequently went back to his car and drove
off I find that this evidence is insufficient to support a
finding of disqualification for reinstatement.
14. Frank Smith
The evidence establishes that Frank Smith committed
two acts of violence, striking Leon Brown on July 14 and
flicking a lighted cigarette against the head of Clarion
Hightower on July 15, that he abused and threatened both
Brown and Hightower; that he followed Foley's car away
from the plant and chased Charlester Strong and Frank
Moore when they left the plant premises through a back
exit While the latter two incidents are not sufficient
grounds to support a finding of disqualification from
reinstatement, I find that the first two incidents described
are and, on the basis thereof, further finds that Frank
Smith is disqualified from reinstatement by virtue of his
performance thereof There remains the contentions of the
General Counsel and Charging Party that Smith should
not be penalized because Leon Brown was not penalized
by the Company for his subsequent conduct of firing his
pistol back toward Smith and the strikers and because the
Company was instrumental in securing employment for
Smith with Brown & Root Co
I find that both these contentions lack merit, while the
Company did condone Leon Brown's conduct and only
picked certain persons from among the number known to
it to be present outside the Bringhurst gate on July 14 as
strikers whose reinstatement was opposed (specifically
excluding Shepherd and Bradshaw) and was instrumental
in securing employment for Smith and the other nine
named above at Brown & Root Co., neither act may be
construed as a waiver in the absence of express statement
thereof of its right to seek to bar Smith from
reemployment for his commission of the serious acts of
violence set out heretofore.
CONCLUSIONS OF LAW
I The Company is an employer engaged in commerce
and the Union is a labor organization within the meaning
of Section 2(2), (5), (6), and (7) of the Act
2. All production and maintenance employees, including
truckdrivers, employed at the Company's Houston, Texas
plant, but excluding all office clerical employees, guards,
watchmen and supervisors, as defined in the Act,
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 of the Act.
3. On and at all times since the date of its certification
by the Board - July 23, 1965 - the Union has been the
exclusive collective-bargaining representative of the
Company's employees in the unit just described
4 By its April 14, 1966, promulgation of, and
subsequent insistence upon, contract provisions which
would preclude the Union from performing its duty to
fairly and equally and in a nondiscriminatory manner
represent the Company's employees in the unit heretofore
described and expose it to legal liabilities, its June 1966
poll of its employees' desires with regard to a proposed
change in the shift assignment system at the plant and its
subsequent change in the shift starting times of its
employees and their shift assignments without prior notice
to or consultation with the Union, its threats addressed to
its employees on February I I to discharge any employees
who engaged in a strike, on March 15 that it was not
going to tolerate a union in the plant, in May that
employee support of the Union and its objectives was
detrimentally affecting the employees, in May that the
employees' work schedules would be lowered by the
Company if the Union secured a contract and that the
Company would replace any strikers immediately and give
any good jobs vacated by them to nonstrikers, in May
that the Company was not going to tolerate union
representation of its employees or the institution of union
standards at the plant and would cease operations before
permitting either, its May threat that the Union was never
going to get a contract, and its July threat that the Union
was never going to get a contract and the Company would
cease operations before it would sign a contract with the
Union, its July 13, 1966, discharge of employees who went
on strike on July 12, 1966, its refusal on September 9,
1966, and thereafter to reinstate the strikers to their
former jobs as a group on their unconditional application
therefor and solicitation of individual strikers to return
thereafter, and its failure and refusal generally to bargain
collectively in good faith with the Union subsequent to
February 3, 1966, over the wages, hours, and working
conditions of its employees in the unit set out above, the
Company caused and prolonged the strike of July 12,
1966, called in protest of its unfair labor practices and
violated Section 8(a)(5), (3), and (1) of the Act
5 By his misconduct connected with the strike, Frank
Smith is disqualified for reinstatement to employment
with the Company under the terms of a Board Order
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 Company has engaged in unfair
labor practices, I recommend that an Order issue directing
the Company to cease and desist therefrom and take
affirmative action designed to effectuate the policies of the
Act, including posting of appropriate notices, bargaining
with the Union at its request, and restoration of its shift
SOUTHWESTERN PIPE, INC. 387
hours and shift assignment system to that which existed
prior to the June 1966 change
Since I have also found that the strike was caused and
prolonged by the Company's unfair labor practices and
the strikers, therefore, were unfair labor practice strikers,
he recommends that the Company be directed to offer the
strikers who have not yet been returned to their former or
substantially equivalent jobs with the Company
reinstatement thereto, dismissing if necessary any
replacements hired, and that the Company make them
whole for any loss of pay they may have suffered or may
suffer as a result of the Company's failure or refusal to
reinstate them to such jobs with the Company from the
date of their unconditional application therefor,
September 9, 1966, to the date of their reinstatement
Backpay shall be computed on a quarterly basis and shall
include interest at 6 percent per annum, as provided in F
W Woolworth Company, 90 NLRB 289 and Isis
Plumbing & Heating Co., 138 NLRB 716
As to strikers who have been reinstated to their former
or substantially equivalent jobs with the Company since
the date of their unconditional application therefor,
September 9, 1966, it shall be recommended that the
Company be directed to make them whole for any loss of
pay they may have suffered as a result of the Company's
failure or refusal to reinstate them to such jobs on their
September 9, 1966, unconditional application therefor
from September 9, 1966, to the date of their reinstatement
to their former or substantially equivalent job with the
Company
RECOMMENDED ORDER
The Respondent, Southwestern Pipe, Inc., Houston,
Texas, its officers, agents, successors, and assigns, shall
1. Cease and desist from-
(a) Threatening its employees with discharge for
participating in any strike.
(b) Threatening its employees with permanent
replacement and promotion of nonstrikers to jobs vacated
by employees striking to remedy unfair labor practices
committed by the Company
(c) Threatening its employees with plant closure before
dealing with the Union with regard to the wages, hours,
and working conditions of its employees or accepting
union standards in the plant or executing a contract with
the Union
(d) Threatening its employees with loss of earnings and
reduced work schedules because of their support of the
Union and its objectives.
(e) Threatening its employees that the Union would
never get a contract
(f) Refusing to bargain collectively with United
Steelworkers of America, AFL-CIO, as the exclusive
representative of all its production and maintenance
employees, including truckdrivers, employed at its
Houston, Texas, plant, excluding office clerical employees,
guards, watchmen and supervisors as defined in the Act,
with regard to the wages, hours and working conditions of
such employees
(g) Changing the wages, hours, working conditions or
other terms of employment of its employees in the unit set
out above without notifying the United Steelworkers of
America, AFL-CIO, and giving it an opportunity to
bargain collectively about such proposed changes
(h) Discouraging membership in or activities on behalf
of United Steelworkers of America, AFL-CIO, by
terminating or refusing to reinstate employees because of
their union or strike activities
(i) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their Section 7
rights under the Act or in any other manner
discriminating in regard to their hire, tenure or any term
or condition of employment
2. Take the following affirmative action which will
effectuate the policies of the Act
(a) Upon request, bargain collectively in good faith with
United Steelworkers of America, AFL-CIO, as the
exclusive representative of the employees in the unit
heretofore described.
(b) Restore shift hours and the shift assignment system
in effect prior to the June 1966 change therein.
(c) Offer immediate and full reinstatement to their
former or substantially equivalent employment with the
Company to all strikers named on attached "Appendix
A" who have not heretofore been restored thereto and
make each of them whole for any loss of earnings they
may have suffered or suffer by the Company's September
9, 1966, refusal of their unconditional application therefor
from September 9, 1966, to the date of their reinstatement
in the manner set forth in the Remedy section of this
Decision
(d) Make whole all strikers named on attached
"Appendix A" who have heretofore been restored to their
former or substantially equivalent jobs with the Company
for any loss of earnings they may have suffered by the
Company's September 9, 1966, refusal of their
unconditional application therefor from September 9,
1966, to the date of such reinstatement in the manner set
forth in the Remedy section of this Decision.
(e) Notify any of the strikers affected by (c) above if
presently serving in the Armed Forces of the United
States of their right to full reinstatement to their former
or substantially equivalent jobs with the Company upon
application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces
(f) Preserve, and upon request make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze and determine the amounts
of backpay due
(g) Post at its Houston, Texas, plant copies of the
attached notice marked "Appendix B " ' Copies of the
notice, on forms furnished by the Regional Director for
Region 23, immediately on receipt thereof shall be signed
by an authorized representative of the Company, posted
by it and 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 the Company to insure
that said notices are not altered, defaced, or covered by
any other material.
(h) Notify the Regional Director for Region 23, in
writing, within 20 days from the Receipt of this
Recommended Order, what steps it has taken to comply
therewith '3
"In the event 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 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 " -
"In the event this Recommended Order is adopted by the Board, this
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
John L Gladney
Alvin Cole
Lislie L Rosten
Howard Flowers
Elmo York
Bobby Michaelson
Ernest Boyd
General Glover
J C. Lewis
Jessie Walker
Sidney Benjamin
Willie Adam
Johnnie Ford
Cleven Flower
Matthew Dred
Bobby G Warner
Johnny Lucchese
Benny Ray Jones
Robert Lee Gray
Frederick Flowers
Herman Goldsmith
Michael Harrington
Bennie J Johnson
Joseph Cretain
Amos Brown
Robert Hill
Allen Placide
J C Bradshaw
Edward Johnson
Melvin Yarbrough
Thomas Allenn
Albert Butler
Joseph A Lemon
Albert Brown
Paul Wycliff
Anderson Ross
Willie J. Toston
W H Johnson
Arthur Reeder
James Deshone
Ernest Wacoff
Thomas Sledge
Clarence Myers
Hylie Drain, Jr
Odis Dolphus
Sherman Ned
Freddie Gipson
Clarence Williams
Joe Hailey
James Hemphill
Jeff Ford
Henry Davis
Robert Pendleton
R B. Chreene
Pearl L Moore
Charles Ashley
Jefferson Hall
Edgar
Robert Jones
Willie Bullard
Ben Hudson
Leroy Myles
Peter Mitchell
Curtis L Jerry
Bobby R Strange
Elijah Owens
Willie Evans
James Miles
Robert Clay
Joshua Mitchell
Harvey L Harps
James Babineaux
Elmo Clark
Jerry Talley
James Kinsey
Arthur Williams
Mose McDaniel
Albert Griffin
Perry Tyler
Charles Buchannan
Leroy King
Milton Marsh
Robert Tisby
Spencer L Gunn
Herbert McDaniels
Charlie B Robinson
James Harris
George Gay Field
Ellue Livingston
Cornealus Williams
Loyal Ewing
Hosey Mosely
Johnnie Blanchard
J C Germany
Randolph Stewart
Joe Barns
Odis Lewis
Harry Greenwood
O W Southerland
Wilford Skinner
Willie Ed Price
Henry Myles
Will Rogers
Mack R Bowie
Louis Bundage
Erwin Donahoe
Ruffin Pringle
Mack Hanna, Jr
Willis Darnell
Floy Shepherd
Lea Davis
Sammy L Kraft
Bill Johnson
Jerry Skelton
Ruben Moses
Rose
APPENDIX B
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-
After a trial in which all sides had the chance to give
evidence, the National Labor Relations Board found that
we, Southwestern Pipe, Inc , violated the National Labor
Relations Act and order us to post this notice telling our
employees what we have been ordered to do, and not to
do, in the future
The Board has ordered us to tell you that we will not
Threaten you with discharge for participating in any
strike;
Threaten you with permanent replacement and
promotion of nonstrikers into your jobs if you strike in
protest of our unfair labor practices,
Threaten to close the plant before dealing with the
United Steelworkers of America , AFL-CIO, the Union
you chose to represent you in dealing with us about
your wages , hours and working conditions or accepting
union standards or signing a union contract,
Threaten you with loss of earnings or reduced work
schedules because you support the Union and the things
it is trying to get into a contract with us,
Make any changes in your wage rates, hours or working
conditions without first notifying the Union of what we
want to do and discussing it with the Union,
Refuse to bargain in good faith with the Union about
your wages , rates of pay, hours and working conditions,
Fire you or refuse to reinstate you or discriminate
against you because you support the Union and what it
tries to do and get for you;
In any other illegal way try to affect your right to
decide for yourself whether to support or not to support
the Union or to strike or not to strike
The Board has ordered us to tell you that we will
Bargain with the Union at its request about your wages,
rates of pay , hours and working conditions;
Restore the shift hours to what they were before we
changed them in June of 1966;
Restore you back to the fixed shifts you had before we
put you on rotating shifts in June of 1966,
Reinstate to your old job or one like it all of you
named on the attached "Appendix A" who went on
strike in July of 1966 because of our refusal to bargain
with the Union in good faith and other unfair labor
practices,
Pay all of you who went on strike in July of 1966 for
any wage losses you suffered between the date you
offered to come back to work, September 9, 1966, and
the date you are or were reinstated to your old job or
one close to it, with 6 percent interest on the amount of
backpay due to you.
We will do the things the Board has ordered us to do and
not do the things the Board has ordered us not to do, as
set out above
provision shall be modified to read "Notify the said Regional Director, in
SOUTHWESTERN PIPE,
writing, within 10 days from the date of this Order , what steps the INC.
Respondent has taken to comply herewith " (Employer)
SOUTHWESTERN PIPE, INC. 389
Dated By after discharge from the Armed Forces
(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
Note Notify any of the employees referred to above if If employees have any question concerning this notice
presently serving in the Armed Forces of the United or compliance with its provisions, they may communicate
States of their right to full reinstatement upon application directly with the Board's Regional Office, 6617 Federal
in accordance with the Selective Service Act and the Office Building, 515 Rusk Avenue, Houston, Texas 77002,
Universal Military Training and Service Act, as amended, Telephone 228-4296