St. Clair Lime Co.

National Labor Relations Board - Board Decisions

Oct 24, 1961

133 N.L.R.B. 1301 (N.L.R.B. 1961)

ST. CLAIR LIME COMPANY 1301
I further recommend that the election held on February 16, 1961 , in Case No.
1-RC-6200 be set aside and that proceedings in that case be remanded to the
Regional Director for the First Region for the purpose of conducting an election at
such time as he deems circumstances permit a free choice of a bargaining
representative.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Re-
lations Act, as amended , we hereby notify you that:
WE WILL NOT engage in, nor create the impression that we have engaged
in, surveillance of our employees ' union or concerted activities.
WE WILL NOT attempt to persuade any employee not to testify in a proceed-
ing of the National Labor Relations Board.
WE WILL NOT promise or grant economic benefits to our employees for the
purpose of inducing them to reject International Union of Electrical , Radio &
Machine Workers, AFL-CIO, or any other labor organization , as their bargain-
ing agent , provided, however , that nothing in this Decision and Order re-
quires us to vary or abandon any economic benefit or any term or condition
of employment which has been heretofore established.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organization, to
form, join , or assist the above-named or any other labor organization , to bar-
gain collectively through representatives of their own choosing , and to engage
in other concerted activities for the purpose of collective bargaining or other
mutual aid or protection , or to refrain from any or all such activities , except
to the extent that such right may be affected by an agreement requiring mem-
bership in a union as a condition of employment , as permitted in Section
8(a)(3) of the National Labor Relations Act, as amended , as modified by
the Labor-Management Reporting and Disclosure Act of 1959.
GLASS-TITE INDUSTRIES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not l
altered , defaced, or cowered by any other material.
St. Clair Lime Company and United Cement, Lime & Gypsum
Workers Local Union No. 396, AFL-CIO, and United Cement,
Lime & Gypsum Workers International Union , AFL-CIO.
Case No. 16-CA-1430. October 24, 1961
DECISION AND ORDER
On April 5, 1961, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirmative
action, as set forth in the Intermediate Report attached hereto. There-
after, General Counsel and the Respondent filed exceptions to the In-
termediate Report, and the Respondent filed a supporting brief.'
IIn its brief, the Respondent requested that the Board postpone the decision herein
until two transcripts of proceedings before the Oklahoma Employment Security Commis-
sion held on January 11 and March 21, 1961 , respectively , became available and could be
133 NLRB No. 127.
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
-delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Leedom].
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 had considered the Intermedi-
ate Report, the exceptions and brief, and the entire record in the case,
and hereby adopts the findings,2 conclusions, and recommendations 3
,of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, St. Clair Lime
Company, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with the United Cement, Lime
and Gypsum Workers International Union, AFL-CIO, and its Local
Union No. 396, as the exclusive representative of all its employees in
,the following appropriate unit :
All production and maintenance employees including firemen,
graders, hoist men, rock men, hydrator-separator men, baggers and
loaders, mechanics, mechanic's helpers, oilers, utility men, cleanup
men, and truckdrivers, both full time and part time, employed at its
Sallisaw, Oklahoma, plant, exclusive of office clerical employees, pro-
fessional employees, guards, watchmen, and all supervisors as defined
in the Act.
(b) Instituting changes in the terms and conditions of employment
in the appropriate unit without first consulting with and bargaining
with the aforesaid exclusive representative concerning rates of pay,
wages, and hours of employment.
(e) Soliciting employees to abandon their strike, inducing em-
ployees to abandon their strike by promising them benefits, and re-
questing employees to induce fellow employees to abandon their
strike.
furnished as appendixes to the brief. The Charging Union filed a motion in opposition to
this request These transcripts have been submitted to the Board; although we-find that
the evidence to be adduced therefrom would be immaterial to the resolution of the issues
in this case we will accept them. Accordingly, we deny the motion of the Charging Party
2 Although we disagree with the Trial Examiner' s characterization of Plant Manager
R. C. Williams' testimony as vague and uncertain, we find that the Respondent did not
unequivocally inform the appropriate union representatives of its alleged intention to
resume bargaining on or after July 13, 1960.
3 The Trial Examiner found, and we agree, that the strike of July 11, 196Q, was caused
and precipitated by the Respondent' s refusal to bargain in good faith. The strike was
therefore an unfair labor practice strike and the strikers were unfair labor practice
strikers . In accordance with Board policy, we shall, therefore, order reinstatement of
the strikers upon application , and backpay to begin 5 days after the date of application
for reinstatement , until the Respondent 's offer of reinstatement . Trinity Valley Iron ct:
Steel Company, 127 NLRB 417.
ST. CLAIR LIME COMPANY 1303
(d) In any other manner interfering with, restraining, or coercing
employees in the exercise of the rights of self-organization, to form
labor organizations, to join or assist the above-named or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities, except to the extent that
such right may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized by
Section 8 (a) (3) of the Act, as amended.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with the United Cement,
Lime & Gypsum Workers International Union, AFL-CIO, and its
Local Union No. 396, as the exclusive bargaining representative of
the employees in the heretofore described appropriate unit, and em-
body any understanding reached in a signed contract.
(b) Upon application, offer immediate and full reinstatement to
their former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, to all those employees
who were on strike on and after July 11, 1960, and who have not
already been reinstated to their former or substantially equivalent
positions, without prejudice to their seniority or other rights and
privileges, dismissing if necessary any persons hired by the- Re-
spondent on or after July 11, 1960, who were not in the Respondent's
employ on that date.
(c) Make whole the employees specified in paragraph numbered
2(b), above, for any loss of pay they may have suffered by reason of
the Respondent's refusal, if any, to reinstate them in the manner pro-
vided in paragraph numbered 2(b), above, by payment to each of
them a sum of money equal to that which he normally would have
earned as wages during the period from 5 days after the date on which
he applied for reinstatement to the date of the Respondent's offer of
reinstatement, less his net earnings, if any, during said period.
(d) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel cards and reports, and
all other records necessary to analyze the amounts of backpay which
may be or become due and the rights of employment under the terms
of this Order.
(e) Post at its plant in Sallisaw, Oklahoma, copies- of the notice
attached hereto marked "Appendix." 4 Copies of said notice, to be
4 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
furnished by the Regional -Director for the Sixteenth Region, shall,
after being duly signed by the Respondent's representative, be posted
immediately upon receipt thereof, and be maintained for a period of
60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reason-
able steps shall be taken to insure that such notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for the Sixteenth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
APPENDIX
NoTIOE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL bargain collectively, upon request, with United
Cement, Lime & Gypsum Workers International Union, AFL-
CIO, and its Local Union No. 396, as the exclusive bargaining
representative of all our employees in the appropriate unit de-
scribed below with respect to rates of pay, wages, hours of em-
ployment, and other terms and conditions of employment, and,
if an agreement is reached, embody such understanding in a
signed contract. The appropriate unit is :
All production and maintenance employees, including fire-
men, graders, hoist men, rock men, hydrator-separator men,
baggers and loaders, mechanics, mechanic's helpers, oilers,
utility men, cleanup men, and truckdrivers, both full- and
part-time employees of the Respondent, employed at our
Sallisaw, Oklahoma, plant, exclusive of office clerical em-
ployees, professional employees, guards, watchmen, and all
supervisors as defined in the Act.
WE WILL NOT unilaterally institute changes affecting the terms
and conditions of employment of employees in the appropriate
unit described above without first consulting and bargaining with
United Cement, Lime & Gypsum Workers International Union,
AFL-CIO, and its Local Union No. 396, as the exclusive bargain-
ing reprsentative of our employees.
WE WILL NOT interfere with, restrain, or coerce our employees
in the exercise of their rights guaranteed by the National Labor
Relations Act by directly inducing them to abandon their strike,
by promising them benefits to induce them to abandon their strike,
ST. CLAIR LIME COMPANY; ; : .1305
or by requesting them to solicit their fellow employees to abandon
their strike.
WE WILL NOT in any other manner interfere with, restrain, or
coerce employees in the exercise of their rights to self-
organization, to form labor organizations, or to join or assist the
above-named or any other labor organizations, to bargain collec-
tively through representatives of their own choosing, and to en-
gage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from
engaging in any or all such activities, except to the extent that
such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as author-
ized in Section 8(a) (3) of the National Labor Relations Act, as
modified by the Labor-Management Reporting and Disclosure
Act of 1959.
WE WILL, upon application, offer immediate and full reinstate-
ment to their former or substantially equivalent positions, with-
out prejudice to their seniority or other rights and privileges, to
all our employees who were on strike on and after July 11, 1960,
and who have not already been reinstated to their former or sub-
stantially equivalent positions, without prejudice to their senior-
ity or other rights and privileges, dismissing, if necessary, all
persons hired on or after July 11, 1960.
WE WILL make each such employee whole for any loss of pay
suffered by him as a result of our failure to reinstate him within
5 days after his application.
ST. CLAIR LIME COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
A charge having been filed and served in the above-entitled case, a complaint
and notice of hearing thereon having been issued and served by the General Counsel
of the National Labor Relations Board, and an answer having been filed by the
above-named Respondent , a hearing involving allegations of unfair labor practices
in violation of Section 8(a)(1) and (5) of the National Labor Relations Act, as
amended, was held in Sallisaw, Oklahoma , on February 14 and 15, 1961, before
the duly designated Trial Examiner.
At the hearing all parties were represented by counsel and were afforded full
opportunity to present evidence pertinent to the issues , to argue orally, and to file
briefs. Briefs have been received from General Counsel and the Respondent.
Upon the record thus made , and from his observation of the witnesses, the Trial
Examiner makes the following:
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Homer Dunlap , Hilmer Dunlap , and Helen Dunlap are copartners doing business
under the trade name and style of St. Clair Lime Company. This partnership has
its principal place of business in Sallisaw, Oklahoma , where it is engaged in the
manufacture, sale, and distribution of limestone and related products.
During the 12-month period before issuance of the complaint the Respondent sold
and distributed from its Sallisaw plant products valued at more than $50,000 to
points outside the State of Oklahoma. During the same period it purchased and
received goods valued at more than $50,000 from points outside the State of
Oklahoma.
The Respondent is engaged in commerce' within the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
United Cement, Lime & Gypsum Workers Local Union No. 396, AFL-CIO, and
United Cement, Lime & Gypsum Workers International Union, AFL-CIO, herein
collectively called the Union, are labor organizations within the meaning of the Act.
III. THE UNFAIR LABOR "PRACTICES
A. Setting and major issues
At the Respondent's plant employing some. 45 to 50 workers, and after a Board
election was held, the Union 1 was certified on March 31, 1960, as the exclusive
bargaining agent of all employees in the following appropriate unit:
All production and maintenance employees including firemen, graders, hoist
men, rock men, hydrator-separator men, baggers and loaders, mechanics,
mechanic's helpers, oilers, utility men, cleanup men, and truckdrivers, both full
and part time, exclusive of office clerical employees, professional employees,
guards, watchmen, and all supervisors as defined in the Act.
Three negotiating meetings of union and company representatives were held
thereafter and before operations were shut down as the result of a strike on July 11.
On October 4 the plant reopened, the Respondent hiring replacements for the con-
tinuing strikers. After this date a number of negotiating meetings were held. At
the time of the hearing no agreement had been reached by the bargaining parties.
On October 27 the Union filed its charge, alleging unlawful refusal to bargain.
It is General Counsel's contention, disputed by the Respondent, that throughout
the negotiations the Respondent has bargained in bad faith and in violation of its
obligations under the law. It is claimed that the strike was caused by the Respond-
ent's refusal to meet as requested and by its dilatory tactics. After the strike began,
it is further claimed, the Respondent also refused to bargain by granting wage
increases to the newly hired replacements for the strikers without consulting with
or notifying the Union and by initiating a back-to-work movement "to by-pass
Union representatives and bargain individually with' employees." .
B. The refusal to bargain
1. Events leading up to the strike
a. Delay in fixing date for first meeting
On April 21 the Union submitted to Homer Dunlap, the Respondent's managing
partner, a written request for an early meeting to negotiate a proposed agreement,
a copy of which accompanied the request. Neither Dunlap nor anyone else replied
to the request. As a witness, Dunlap admitted that he received the request and
promptly forwarded it to his attorney, counsel in these proceedings. Although
Dunlap said that he became ill sometime in the "last week in April," which might
reasonably explain why he did not personally respond to the Union's request, there
is no such reason offered'by counsel for his failure even to acknowledge the request
made upon his client. The Trial Examiner considers the explanation which counsel
did offer, as a witness , as falling somewhat short of persuasive. He said:
1It was the International which was certified , the local not having been chartered
until May.
ST. CLAIR LIME COMPANY . - 1307
I was here when the election occurred on the 24th of March , and, frankly, I
was surprised that the Union waited so long before submitting a contract, and
it was my impression that they were not in any particular hurry. For that
reason , when Mr . Dunlap became ill , I didn 't see any particular urgency about
writing them.
Counsel apparently ignored the obvious fact that no demand could properly be
made by the Union until after certification , which occurred on March 31, as well
as the reasonable probability that since it was the Union which drafted the proposed
contract , the many provisions in an 11 -page document could hardly be drawn up
by union officials and an employee committee overnight . The Union's letter, which
counsel admitted having received from his client , specifically asked for the "earliest
possible date" for the start of negotiations . Accepting the validity of Dunlap's
claim that he turned the matter over to his counsel and then became ill, as well as
counsel 's claim that he knew his client was ill, the Trial Examiner believes that
ordinary business practice would suggest that some reply be made. Whether the
Respondent 's failure to reply be considered, per se, as failure to bargain in bad
faith , it reasonably could have given the employees and the Union ample grounds
for suspecting that the employer was intentionally avoiding his obligations under
the law.
In any event, the Trial Examiner appraises the failure to reply as one factor in
resolving the question of good -faith bargaining.
Having had no response to his request of April 21, the union official on May 7
and 9 made a number of unsuccessful telephonic attempts to reach Dunlap, being
first advised that he was at one place, then another, and finally in the hospital. He
then asked that the Respondent 's counsel get in touch with him, but still no word
was received.
His efforts proving futile , the same union official sent to Dunlap the following wire
on May 10:
CERTIFIED RECEIPT SHOWS YOU RECEIVED LOCAL UNION NO.
396 LETTER OF APRIL 21 AND ENCLOSURES' FOR NEGOTIATIONS.
ALTHOUGH REQUEST WAS MADE FOR EARLIEST DATE POSSIBLE
TO BEGIN NEGOTIATIONS WE HAVE FAILED THROUGH REPEATED
EFFORTS ON MAY 7TH AND 9TH TO CONTACT YOU THROUGH
YOUR OKLAHOMA CITY OFFICE. REQUEST WAS MADE THAT YOUR
ATTORNEY CONTACT ME IF YOU WERE UNAVAILABLE. I HAVE
HEARD NOTHING FROM YOUR OFFICE. HAVE SENT OUR REP-
RESENTATIVE TO SALLISAW, OKLAHOMA, TO FORESTALL A WALK
OUT OF YOUR EMPLOYEES. I NOW AGAIN IN ORDER TO AVOID
A STRIKE AT YOUR PLANT REQUEST YOU IMMEDIATELY CON-
TACT ME AT KE 4-2521 DEWEY OKLAHOMA OR CLYDE BROCK,
NO. 64 MOTEL SALLISAW, OKLAHOMA THROUGH - PERSON TO
PERSON CALLS ADVISING OF AN IMMEDIATE DATE TO BEGIN
NEGOTIATIONS.
ORVAL WEBBER.
The same day Webber sent the Federal mediation and conciliation service a wire
notifying it that a dispute existed and that he had been unable "to get company
representatives to meet."
The following day, May 11, counsel for the Respondent finally replied to the
Union 's several requests for a meeting, and proposed as the earliest meeting date
May 24. For the first time counsel 's letter offered as an explanation for silence the
claim that Dunlap's illness had caused the delay "in giving attention to your contract
proposal."
b. The meetings of May 24 and June 9 and 10
Negotiating meetings were thereafter held on May 24 and June 9 and 10. It
appears unnecessary here to review in detail the discussions which took place. The
minutes referred to reveal that except in minor respects the Respondent declined
to agree to the Union's many contract proposals.
At the June 10 meeting, as the Respondent's minutes show, Dunaap announced
that because of cancellation of orders it would be necessary to shut down one kiln,
bringing about the immediate layoff of some 25 employees. At the conclusion of this
meeting no date was set for resumption of negotiations . In effect this point was left
that after the union representatives had reported to the union members a request for
further meetings would be requested by them.
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. c. Futile efforts to obtain a meeting before the strike
Between June 10 and 28 a union representative on several occasions attempted
unsuccessfully to reach either Dunlap or his counsel by telephone in order to arrange
for further meetings. Finally, on June 28 or 29, he reached Dunlap and warned him
that unless a meeting could be arranged it would be difficult to restrain the employees
from striking. Dunlap told him that his attorney would have to attend to such
matters, and ended the conversation by declaring, according to the representative's
credible testimony, "Hell, I don't know if I'll ever meet with you again or not." 2
Although in his testimony Dunlap claimed that immediately after this talk with the
union representative he called his attorney's office, and was informed that he would
not be available until July 12, his own testimony likewise makes clear that he made
no effort to pass such information on to the union representative.
On July 7 the union representative told a meeting of the employees of his inability
to obtain any agreement for further negotiations. He also told them that "Concilia-
tion" had said "they" were having the same trouble "to get a meeting." The employ-
ees then voted to strike the following Monday morning, July 11, unless in the mean-
time the Respondent set a date for continued negotiations.
Immediately after this vote was taken the union representative and the bargaining
committee of employees went to the plant and informed Plant Manager R. C.
Williams of their decision. Williams told them "Dunlap is handling that," but
finally agreed to "relay the message to him."
Although according to both Williams and Dunlap the manager did transmit the
ultimatum, and Dunlap thereafter told him that counsel would be available for a
meeting during the middle of the following week, this information was not passed
on to the union representative. Williams, indeed, admitted that although he took
the trouble to visit the union representative on Sunday, July 10, at his motel room,
he did not inform him of Dunlap's reference to another meeting, but merely asked
him to permit men to be available for carloading on Monday .3
Even if full credit were to be accorded to the claim of both counsel and Dunlap
that the former would not be available until July 13 for negotiations, the Respond-
ent's studied failure to communicate the fact to the employees' certified bargaining
representative is conclusive evidence, in the opinion of the Trial Examiner, of
intentional refusal to bargain in good faith.
The strike began on July 11 and was still continuing at the time of the hearing.
The Trial Examiner concludes and finds that the strike was caused and precipi-
tated by the Respondent's refusal to bargain in good faith.
2. Events following the strike
a. Unilateral pay increase
The strike was fully effective and the plant was closed until October 4. On this
date it was reopened with new employees as replacements. It is undisputed that
without previous consultation with or notification to the Union the Respondent hired
these new employees at a higher rate of pay than had been enjoyed by its striking
employees. The Respondent offered no reasonable explanation for the unilateral
action, which gains significance when considered in the light of the Respondent's
own minutes of its last meeting before the strike. There it is stated briefly that the
Company declined to make any offer of a wage increase.
This unilateral action, under all circumstances described above, constituted further
failure to bargain in good faith.4
s The Trial Examiner cannot accept as true Dunlap's denial that he made this statement.
He admitted that on this occasion "I sure did" complain about the previous negotiating
meeting And both his previous and subsequent conduct, the latter to be described below,
demonstrate that he had no intention of meeting with the Union unless forced to do so.
s Although neither employee was questioned on the point, the Trial Examiner cannot
credit Williams' vague and uncertain testimony to the effect that before Sunday he
"believe[d]" he told two members of the employee committee about a prospective meeting
the following week. Had he actually done so, he reasonably would have expected a stay
of the strike action. Yet as a witness he admitted saying nothing about this to the union
representative when he called upon him Sunday. The conduct of both Williams and
Dunlap was patently that of management not only desiring, but precipitating , strike action.
4 W. W. Waliwork Fargo, Inc, 123 NLRB 91.
ST. CLAIR LIME COMPANY 1309
b. Back-to-work movement
The credible testimony of striker Noble A. Casey, a member of the employee ne-
gotiating committee and an ordained minister, establishes the following facts:
(1) Two or three weeks before the plant was reopened Foreman Silas Randolph
went to Casey's home and asked him to get other members of the employee com-
mittee and, without the two union representatives, go to see Plant Manager Williams
to "work out some kind of a deal to go back to work." Casey declined, telling Ran-
dolph that as an elected officer of the local he would not do so.
(2) About 2 weeks after this, Plant Manager Williams met Casey in a local
restaurant and told him that he "believed he could work out an acceptable con-
tract" with the employee committee if they would come to him, without the two
union representatives.
Even if, as the Respondent claims, neither Randolph nor Williams had any spe-
cific authority from Dunlap to thus approach the employee committee member, it is
conceded that they are supervisors within the meaning of the Act, and the Respond-
ent under the circumstances must be held accountable for their conduct.
The Trial Examiner concludes and finds that the Respondent, by the above-noted
conduct of Randolph and Williams, which was, in the language of the Board,5
"calculated to induce the employees to bargain individually with their employer, and
to disregard their chosen bargaining representative, and was an attempt to bypass the
Union and undermine its authority as the statutory collective bargaining repre-
sentative," was in violation of Section 8(a) (1) and (5).
3. Conclusions
The Trial Examiner concludes and finds that the Respondent has failed and refused
to bargain in good faith with the Union as the exclusive representative of all employees
in an appropriate unit and thereby has interfered with , restrained , and coerced em-
ployees in the exercise of rights guaranteed by the Act by: (1) its studied failure to
meet with the Union within reasonable periods until May 24 as required by the Act;
(2) its failure to set a meeting date after June 29; ( 3) the hiring of replacements at
increased wages after refusing on June 10 to offer such or any increase ; and (4) the
initiation of the back-to-work movement to bypass the Union.6
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close , intimate , and substantial relation to trade, traffic , and commerce among the
several States , and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices the Trial
Examiner will recommend that it cease and desist therefrom and take certain affirma-
tive action to effectuate the policies of the Act.
It will be recommended that the Respondent, upon request, bargain in good faith
with the said Union and, if an understanding is reached, embody such understanding
in a signed agreement.
It has been found that the Respondent caused and precipitated the strike. To
effectuate the policies of the Act, therefore, it will be recommended that the Respond-
ent cease and desist from infringing in any manner upon the rights guaranteed em-
ployees by the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
s Quaker State Oil Refining Corporation, 121 NLRB" 834.
6 The Trial Examiner considers as immaterial to the issues of this case the fact that
some meetings were held following the filing of the charges. It is clear that no con-
tractual agreement has been reached. Among other relevant cases cited by General
Counsel in his brief are: Reed & Prince Manufacturing Company, 96 NLRB 850, enfd. at
118 F. 2d 874 (C.A. 1), cert. denied 313 U.S. 595; M & M Bakeries, Inc., 121 NLRB 1596;
Trinity Valley Iron and Steel Company, a Division of C. C. Griffin Manufacturing Com-
pany, Inc., 127 NLRB 417.
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. United Cement , Lime & Gypsum Workers Local Union No. 396, AFL-CIO,
and United Cement, Lime & Gypsum Workers International Union , AFL-CIO, are
labor organizations within the meaning of Section 2(5) of the Act.
2. All production and maintenance employees including firemen , graders, hoist
men, rock men, hydrator-separator men, baggers and loaders , mechanics, mechanic's
helpers, oilers , utility men , cleanup men , and truckdrivers , both full and part-time
employees of the Respondent, employed at its Sallisaw, Oklahoma, plant, exclusive
of office clerical employees, professional employees , guards , watchmen and all super-
visors as defined in the Act, constitute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9 (b) of the Act.
3. By virtue of Section 9(a) of the Act the said Union has been since March 24,
1960, and now is, the exclusive representative of all employees in the said appropriate
unit for the purposes of collective bargaining with respect to rates of pay, wages,
hours of employment , and other terms and conditions of employment.
4. By refusing , since April 1960, to bargain collectively in good faith with the said
Union as the exclusive representative of all employees in said appropriate unit, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (5) of the Act.
5. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Somismo, Inc. and Warehouse and Mail Order Employees, Local
Union No . 743, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America (Production
Division ), Petitioner . Case No. 13-RC-7604. October 04, 1961
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
Pursuant to a stipulation for certification upon consent election, an
election by secret ballot was conducted by the Regional Director on
March 9,1961, among the employees in the unit described below. After
the election, the parties were furnished with a tally of ballots which
showed that, of approximately 60 eligible voters, 54 cast valid ballots,
of which 28 were against, and 26 were for, the Petitioner. The Peti-
tioner filed timely objections to conduct affecting the results and con-
duct of the election.
After investigation, the Regional Director, on April 26,1961, issued
and served upon the parties his report on objections in which he recom-
mended that all the objections be overruled. Thereafter, the Petitioner
filed timely exceptions to the Regional Director's report.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act.
133 NLRB No. 131.