Star Expansion Industries Corp.

National Labor Relations Board - Board Decisions

May 12, 1967

164 N.L.R.B. 563 (N.L.R.B. 1967)

STAR EXPANSION INDUSTRIES
Star Expansion Industries Corporation and
Albert Dinges and United Electrical, Radio
& Machine Workers of America (UE). Cases
2-CA-9839-2, 2-CA-10081, 2-CA-10248-2, and
2-CA-10340
May 12, 1967
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On September 29, 1965, Trial Examiner Herman
Tocker issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. He also found that the Respondent had not
engaged in other unfair labor practices alleged in the
complaint. Thereafter, the Respondent, the
Charging Party, United Electrical, Radio & Machine
Workers of America, herein referred to as the UE,
and the General Counsel filed exceptions and
briefs, and the Respondent filed an answering brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that
although certain of his rulings were in error, none of
the erroneous rulings constituted prejudicial error.
Unless otherwise set forth herein, the rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and the briefs,
and the entire record in the case, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner insofar as they are consistent
with this Decision and Order.
1. The Trial Examiner found that an arbitration
award holding that the Employer was justified under
its contract with the International Brotherhood of
Electrical Workers, AFL-CIO, herein called IBEW,
in discharging Albert Dinges on December 5, 1963,
should not foreclose the Board from considering the
validity of Dinges' discharge under Section 8(a)(1)
and (3) of the Act. Accordingly, the Trial Examiner
considered the allegation that Dinges was
discriminatorily discharged and, after an evaluation
of the evidence, concluded that the complaint in
regard thereto should be dismissed for lack of
substantial evidence. Under the facts and
circumstances herein, we agree that the Board
should not defer to the arbitration decision in regard
' Respondent' s request for oral argument is hereby denied as
the record, the exceptions, and briefs adequately present the
issues and positions of the parties.
2 See Tex-Tan Welhausen Company, 159 NLRB 1605, Roadway
164 NLRB No. 95
563
to Dinges' discharge.2 However, unlike the Trial
Examiner, we conclude that Dinges was
discriminatorily discharged in violation of Section
8(a)(1) and (3) of the Act.
Dinges was chief union steward for the IBEW
from the latter part of 1957, when it was certified as
the collective-bargaining agent for the Respondent's
production and maintenance employees pursuant to
a Board-conducted election, until the date of his
discharge. During that period, the parties negotiated
two successive 3-year contracts, the first running
from 1958 to 1961, and the second from 1961 to
March 11, 1964. Dinges' main duties as chief
steward were seeing that the Respondent followed
the terms of the contract, and processing grievances
which arose therefrom. He met approximately two or
three times a week on complaints and shop problems
with Respondent's officials, including Respondent's
Personnel Manager Stanley. There is little evidence
as to Dinges' relationship with the Respondent and
with the IBEW officials during the first 4 years of the
contractual relationship. However, it appears that
near the end of 1962, Dinges became more militant
in the processing of grievances, and in the
administration of contract provisions. He took
positions which, for the first time, were in direct
opposition to Kamen, business agent of Local 1968,
IBEW, and the Respondent. His actions resulted in
reversals of decisions put into effect by the
Respondent, and in at least one instance resulted in
the outlay by the Respondent of a substantial sum of
money.
Around the end of 1962, Dinges, acting upon a
complaint received from a woman employee in the
power actuated tool department that women
employees were receiving less pay than men for the
same type of work, took the matter up with the
Respondent. Dinges persisted in his position and
finally, in September 1963, at a meeting attended by
Respondent's attorney Orenstein, Personnel
Manager Stanley, Business Agent Kamen, the shop
stewards, and Dinges, the Respondent agreed that
the women involved were entitled to the higher wage
rate and gave them backpay for a period of
approximately 9 months.
Again, in August 1963, Dinges insisted after a
layoff that certain employees be called back
according to plantwide seniority as required by the
terms of the contract. The Respondent sought to
recall only those employees who had worked on the
day shift and was supported in this position by
Kamen. Dinges called a meeting of employee
officers of Local 1968 and shop stewards, and at this
meeting openly expressed his opposition to the
position of Kamen and the Respondent. Dinges'
position regarding the interpretation of the contract
prevailed.
Express, Inc, 145 NLRB 513, 514-515, La Prensa, Inc, 131
NLRB 527, 529, Youngstown Cartage Company, 146 NLRB 305,
308,fn 4
298-668 0-69-37
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dinges again took a position in opposition to
Business Agent Kamen and the Respondent around
September 1963, when the Federal minimum wage
was raised from $1.15 to $1.25 an hour. Dinges told
Kamen that the 15-cent-an-hour increase provided
for by the contract should be added to the new $1.25
minimum wage rather than to the $1.15-an-hour wage
which was the minimum at the time the contract was
signed . However, at a meeting attended by
Respondent's representatives, Kamen, Dinges, and
other union stewards, Kamen overruled Dinges and
the matter was thereafter deferred.
Still another incident occurred around the middle
of November 1963, when Dinges and Union Steward
Chessman were processing a grievance on behalf of
an employee. The Respondent was represented by
Personnel Manager Stanley and General Foreman
Delsky. After the grievance was settled, Dinges and
Chessman were asked to remain for a discussion of a
long-standing problem concerning working foremen.
The ensuing discussion became heated, with
Respondent's representatives taking the position
that supervisors would perform production work
whenever Respondent deemed it necessary. Dinges
and Chessman argued that under the contract such
work should be limited to emergencies. Delsky and
Chessman apparently uttered certain personal
remarks to each other, and Delsky threatened to
"get" Chessman. Dinges interjected, "Just don't
include Andy Chessman, include myself," and
Stanley replied, "This can be arranged."
Around the first week in December 1963, Dinges
complained to Liggett, International vice president
of District 4, IBEW, about the caliber of the
representatives and the ineffective service the Local
had been receiving from union officials, specifically
mentioning International Representative Terry and
Business Agent Kamen. Upon request from Liggett,
Dinges submitted a written complaint regarding
Kamen signed by a majority of the stewards. About
December 2 or 3, Terry called an evening meeting of
shop stewards at which there was a frank discussion
of the IBEW's representation and servicing of the
contract. At that meeting Dinges indicated that
Terry's visit had served no useful purpose.
On the afternoon of December 5, 1963, Dinges
went to see Stanley concerning a pending grievance
involving some employees. Stanley directed Dinges
to the conference room and also asked General
Foreman Delsky to be present. When the three were
in the conference room, Stanley stated that the
Respondent was discharging Dinges. When asked
for the reason, Stanley told Dinges it was because he
had been talking strike, that he had been telling
workers to slow down in their work, and that he had
engaged in racial discrimination. Stanley added that
the Respondent could not tolerate such conduct and
that its proof was based upon an extensive
investigation conducted over the prior 4 to 6 weeks.
When Dinges asked Stanley what the proof was,
Stanley replied he would present such proof at the
proper time. Stanley had Dinges' check ready and
permitted him to call Kamen and to notify one of the
stewards of his discharge before leaving the plant.
On the following morning, the stewards asked
Stanley about Dinges' discharge and Stanley listed
essentially the same reasons given Dinges, without
further explanation. Within a week after this
meeting, Stanley met with the stewards, Kamen, and
the IBEW attorney regarding the discharge. Stanley
refused to rescind his action, and Kamen said that
the IBEW would take the case to arbitration. Before
the arbitration proceeding there were no further
discussions regarding the discharge, except a letter
Dinges received from the IBEW attorney who had
been retained to represent him indicating that in
addition to the three grounds previously given, the
Respondent had listed a fourth, namely; "he
instructed an employee not to perform work
assigned by her supervisor."
Prior to the notice of discharge on December 5,
Dinges, although meeting frequently with
Respondent's officials, had received no warning
regarding his alleged improper activities. Nor does
the record show that any employee had been
questioned or made any complaint in regard to
Respondent's claimed reasons for the discharge.
Dinges categorically denied the charges leveled
against him.
After his termination, Dinges applied for
unemployment insurance with the New York State
Department of Labor, Division of Employment.
Accepted in evidence was a letter dated January 15,
1964, denying him insurance benefits. The
determination stated as the basis for the refusal:
"Your employer reports there is evidence disclosing
you committed certain union activities which were
detrimental to his interest," and was characterized
by the division of employment as "misconduct in
connection with employment." The Respondent did
not controvert the contents of the letter or offer any
evidence as to those union activities of Dinges which
were detrimental to its interests.
The Respondent presented no affirmative defense
after the General Counsel presented his case, but
instead relied, inter alia, on alleged deficiencies in
the pleadings, and on the record and award in the
arbitration proceeding. As for the pleadings, the
Respondent argues that the charge filed is at fatal
variance with the complaint. In this regard, the
original charge filed on February 20, 1964, alleged
that Dinges was discharged because of his activity
on behalf of the UE. An amended charge was filed on
April 16, 1964 , alleging that the discharge was
because of militant activity "on behalf of a labor
organization." The second amended complaint
issued on February 11, 1965, alleged that Dinges was
discharged while "engaged in lawful protected
activities in connection with his duties as shop
steward for the IBEW." Contrary to the
Respondent, we agree with the Trial Examiner that
the amended complaint was not at fatal variance
STAR EXPANSION INDUSTRIES
with the charge and dealt with the same or related
conduct as that alleged in the charge.3 As for the
arbitration award, we have heretofore indicated our
agreement with the Trial Examiner's rejection of this
defense.
Unlike the Trial Examiner, we find that the
evidence, considered in its totality, presents a strong
prima facie case to support the allegations in the
complaint. As detailed above, Dinges, in the
performance of his duties as chief steward during
the months immediately preceding his discharge,
was militant and persistent in his presentation of
grievances, and in his enforcement of the contract
vigorously opposed the positions of both the
Respondent and his superiors in the IBEW. The
settlement of the equal pay for women issue resulted
in a considerable backpay liability for the
Respondent. Other positions he took were equally
disturbing to the Respondent. In view of this
background, we do not agree with the Trial
Examiner that the remark made by Stanley to
Dinges about a threat to "get him" and "this can be
arranged" can be characterized as a "quip." It is
also significant that this remark took place while
Dinges was in a heated discussion opposing the
Respondent's position as to the application of the
contract.
We also disagree with the Trial Examiner's
findings that the Respondent did not know of
Dinges' problems within the IBEW and thus would
not associate Dinges personally, rather than the
IBEW, with the grievances and contract
administration differences. His open opposition to
Kamen in dealing with the Respondent made this
self-evident. Respondent's contention that Dinges
was discharged after a 4- to 6-week investigation is
severely weakened by the fact that Dinges, although
in constant contact with Respondent's officials for
over 6 years, was never at any time warned or
notified that his work or conduct was unsatisfactory
and the record fails to show that any employees had
complained, or even knew of any investigation. And
finally, we find significant the peremptory manner in
which the discharge was announced to Dinges at a
time when he had sought out Stanley to discuss
pending grievances, and the failure of the
Respondent at any time to indicate the specific basis
for the allegations of misconduct.
Upon a consideration of all the evidence
presented, we find that the General Counsel has
a N L R B v Font Milling Co , 360 U S 301, 306-307
" See Local 1.38, International Union of Operating Engineers,
123 NLRB 1393, 1397-98, Idaho Concrete Products Company, 123
NLRB 1649, 1663 Cf Wagner-Wood Company, 148 NLRB 963,
967-968.
5 See Elco Corporation, 155 NLRB 796, 800-801; N.L R.B. v
Nu-Car Carriers, Inc , 189 F 2d 756, 760 (C A. 3)
6 We adopt the Trial Examiner's findings, grounded on certain
of his credibility resolutions , that the allegations regarding
preelection interrogations and threats made by Stanley to
Santiamagro , and Supervisor Loalbo to Howard be dismissed,
565
made out a prima facie case which imposed upon the
Respondent the duty of going forward with the
evidence and giving an adequate explanation of the
discharge.4 The Respondent offered no evidence to
dissipate the unfavorable inferences to be drawn
from the General Counsel's evidence. Accordingly,
we find that Respondent's discharge of Dinges on
December 5, 1964, was motivated, not by the
reasons stated, but by its hostility to his union
activities as union steward for the IBEW as alleged
in the complaint, and that Respondent thereby
violated Section 8(a)(3) and (1) of the Act.-5
2. Paragraphs 10 and 11 of the amended
complaint allege, inter alia, that Respondent's
Personnel Manager Stanley in January 1964
coercively interrogated employees concerning their
support and assistance to the UE which had started
an organizing campaign among Respondent's
employees. Respondent, in addition to denying these
allegations to the complaint, also contends that
consideration of the alleged incidents are barred by
Section 10(b) of the Act. The Trial Examiner found
the allegations in question to be without merit, and
found it unnecessary to pass on Respondent's 10(b)
defense. For the reasons set forth below, we reject
the Respondent's contention that any finding of
unfair labor practices in regard to Stanley's activity
in January 1964 is barred by Section 10(b) of the Act,
and, contrary to the Trial Examiner, we find that
Stanely's interrogation of Bellucci and Brown
violated Section 8(a)(1) of the Act.6
The charge involving Dinges in Case
2-CA-9838-2 was filed on February 20, 1964,
alleging only that Dinges was unlawfully discharged.
The first amended charge was filed on April 16, and
contained the following: "By the above acts
described and by other acts the above-named
employer has interfered with, restrained, and
coerced its said employee (Dinges) in the exercise of
rights guaranteed by Section 7 of the Act, as
amended." It also charged a violation of Section
8(a)(1) in addition to the Section 8(a)(3) charge
involving Dinges' discharge. The charge in Case
2-CA-10081 involving the Section 8(a)(5) conduct,
filed on June 18, 1964, also contained a separate
paragraph stating, "It (the Company) also engaged in
a campaign of threats and intimidation prior to and
after the strike" of June 2, 1964. This allegation was
repeated in the First Amended Charge filed on
July 8, 1964, and was also referred to in the first
since it is the Board's established policy not to overrule a Trial
Examiner's resolutions with respect to credibility unless, as is not
the case here, the clear preponderance of all the relevant
evidence convinces us that the resolutions were incorrect
Standard Dry Wall Products, Inc , 91 NLRB 544, enfd. 188 F 2d
362 (C A. 3) However , in accepting the Trial Examiner's
credibility findings regarding Supervisor Loalbo, we do not adopt
his additional reason that "in any event Loalbo was only a minor
supervisor" and "the plant never closed and was not moved "
Indeed, if the alleged threat was made, neither fact would in the
circumstances constitute a defense.
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
paragraph of the second amended charge filed on
January 27, 1965, which also contained a broad "By
these and other Acts" clause in the last paragraph.
We are satisfied, on the basis of the foregoing, that
our consideration of conduct engaged in by the
Respondent in January 1964 is not barred by Section
10(b) of the Act. Plainly, the charges were adequate
to support the allegations of interference, restraint,
and coercion contained in the complaint, and since
the conduct in question occurred within the 10(b)
period it is properly before the Board for
consideration.7
The record shows that Stanley admitted, during
his direct testimony, that he interrogated employees.
He testified that on December 23, 1963, he received
a telegram from the UE advising him that it had
petitioned for an election, and further testified that
this came as a complete surprise to him. Sometime
after the first of the year, more than a week after he
received the telegram, he went out into the shop and
spoke to employee Bellucci. He inquired of Bellucci
whether he knew anything of the UE in the plant.
Bellucci said he did not. Stanley testified that he
also approached employee Brown in the factory
about the same time and had a similar conversation.
Brown also replied that he had heard nothing about
the UE. The Trial Examiner viewed the
interrogations "as a normal reaction of a personnel
manager to the sudden advent of the UE on the
scene and his desire to ascertain whether in fact
there was genuine and sufficient interest of the
employees on behalf of UE as opposed to IBEW, the
then recognized bargaining agent." He found that
such conversations were nothing more than casual
or idle curiosity about the new Union and were
protected under the Board's Blue Flash doctrine."
We do not agree, and find, when viewed in the
context in which the interrogation occurred, that the
conduct engaged in by Stanley was coercive.
Despite the inherent danger of coercion therein,
the Board and the courts have held that where an
employer has a legitimate cause to inquire, he may
exercise the privilege of interrogating employees on
matters involving Section 7 rights without incurring
8(a)(1) liability, as where the purpose is to verify a
union's claimed majority status to determine
whether recognition should be extended. Here the
facts show that Stanley had been apprised of the
UE's petition more than a week before the incident,
and the interrogations were not directed at the
question of the majority status of the UE.
Additionally, in allowing the employer the privilege
of ascertaining necessary facts in such
circumstances, the Board and the courts have
established specific safeguards designed to
minimize the coercive impact of such employer
interrogation. Here, no such safeguards were
provided. In the circumstances, we do not believe
that the Respondent's conduct was privileged and,
contrary to the Trial Examiner, we find the
Respondent violated Section 8(a)(1) of the Act by its
interrogation.
3. We are satisfied from the record as a whole,
and in agreement with the Trial Examiner, that the
Respondent did not refuse to bargain within the
meaning of Section 8(a)(5).9 Accordingly, we adopt
the recommendations of the Trial Examiner that the
allegations of the complaint with respect to Section
8(a)(5) violations be dismissed. In view of our
conclusion with respect to Respondent's good-faith
bargaining during the negotiations, we further adopt
the Trial Examiner's findings that the strike of
June 2 was not an unfair labor practice strike, and
the Respondent could legally replace the strikers as
economic strikers.10 The record also fully supports
the Trial Examiner's further findings that all the
strikers, with the exception of Radzikowski, who
were not replaced were either rehired in the
classifications and at rates of pay to which they were
entitled or were validly offered reemployment which
was refused. Accordingly, no blanket order for
reinstatement will be issued. As for Radzikowski, we
find that the record supports the Trial Examiner's
finding that he was denied reinstatement on June 29,
1964, for discriminatory reasons, and the
Respondent thereby violated Section 8(a)(1) and (3)
of the Act. As provided below, the Respondent is
directed to offer him immediate and full
resinstatement to his former or a substantially
equivalent position and make him whole for any loss
of earnings and benefits he may have suffered
thereby.
4. Vacations with pay were provided for under the
collective-bargaining agreement between
Respondent and the IBEW which expired on
March 11, 1964. When the UE was certified on
March 12, 1964, the Respondent kept in effect the
economic terms of the IBEW contract, including
vacation pay. Employees who did not join the strike,
and who were otherwise qualified under the expired
contract between the Respondent and the IBEW,
received vacation pay up to 2 weeks for the period
beginning July 17, 1964, during the annual plant
closing. However, the Respondent denied vacation
r See Sam Klain and Sons, 127 NLRB 776, 777-778, Kohler
Co., 128 NLRB 1062, 1097-98, remanded on other grounds 300
F 2d 699 (C A.D C )
8109 NLRB 591, 592
Y In agreeing with the Trial Examiner's conclusion that there
was not bad-faith bargaining, we do not adopt his reliance on
Respondent counsel's conduct during the hearing However, we
find that such reliance by the Trial Examiner was not prejudicial
since there was sufficient other probative evidence upon which
the Trial Examiner relied to support his dismissal of 8(a)(5)
allegations Nor do we deem it necessary to pass upon the Trial
Examiner's views regarding preemption and the rights of State
and Federal courts in that area
10 In the circumstances, we find it unnecessary to pass on
whether Blanchard, Secor, Brown, Sansone, and Drake were in
any event not entitled to reinstatement because of alleged
misconduct during the strike.
STAR EXPANSION INDUSTRIES
pay to employees on strike and also to strikers who
returned to work before the end of the strike, on the
basis of its interpretation of the contract that they
were not eligible. We agree with the Trial Examiner
that the vacation issue falls within our rule of Great
Dane Trailers, Inc.," in which we held in regard to
vacation pay that "any striker who had not yet been
permanently replaced was entitled, as an employee
under Section 2(3) of the Act, to be treated in the
same fashion as other employees." Moreover, we
further find that those strikers who had been
permanently replaced before the date of the
payments of vacation benefits were entitled to a
"pro-rata share" as provided under the expired
contract. Since it is clear from the record that the
basis for denying the vacation benefits to the
employees involved was because of their strike
activity, we find the Respondent thereby violated
Section 8(a)(1) and (3) of the Act. As provided below,
the Respondent will be required to pay each
employee the vacation pay so withheld.12
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices in addition to those
found by the Trial Examiner, we shall order it to
cease and desist therefrom, and to take certain
affirmative action designed to effectuate the policies
of the Act.
Unlike the Trial Examiner, we have found that the
Respondent discharged Albert Dinges on
December 5, 1963, in violation of Section 8(a)(1) and
(3) of the Act. As noted above, for the reasons set
forth in the Trial Examiner's Decision, we have also
found that Radzikowski was discriminatorily refused
reemployment on June 29, 1964. Accordingly, we
shall order the Respondent to cease and desist from
such unfair labor practices and require that it take
certain affirmative action which we find necessary to
remedy and remove the effects of these unfair labor
practices and to effectuate the policies of the Act.
We shall, therefore, order that Dinges and
Radzikowski be offered immediate and full
reinstatement to their former or substantially
equivalent positions without prejudice to their
seniority or other rights and privileges, and make
them whole for any loss of pay suffered by reason of
the discrimination against them, from the date of
'" 150 NLRB 438, enforcement denied 363 F 2d 130 (C A 5),
cert granted 385 U S 1000
12 The Respondent contends that the Board should defer any
decision on the issue of vacation pay for the strikers since there is
now pending in the New York Supreme Court an action by the
striking employees based upon the construction and
interpretation of the IBEW agreement Our power to order
reimbursement of vacation benefits to the strikers here is not
based on the interpretation of the contract or the contractual
rights of the employees, whatever they may be, but the need to
remedy the unfair labor practice committed Indeed, the Supreme
Court has held that the Board's jurisdiction to remedy unfair labor
practices is not preempted by the possible existence of a
567
Dinges' discharge on December 5, 1963, and the
refusal to reinstate Radzikowski on June 29, 1964, to
the date of valid offers of reinstatement. Loss of pay
shall be computed as prescribed in F. W. Woolworth
Company, 90 NLRB 289, and interest on such
backpay shall be computed at 6 percent per annum
in accordance with Isis Plumbing & Heating Co., 138
NLRB 716. We shall also order that Respondent
make available to the Board, upon request, payroll
and other records in order to facilitate the checking
of the amounts of backpay and vacation benefits
due.
We have also found, contrary to the Trial
Examiner, that the interrogations by Respondent's
Personnel Manager Stanley in January 1964 of
Bellucci and Brown were coercive, and constituted
independent violations of Section 8(a)(1) of the Act.
Accordingly, we shall order the Respondent to cease
and desist therefrom.
Having found that the Respondent
discriminatorily refused vacation benefits to
employees who were on strike, we shall also require
Respondent to pay all employees who earned such
vacation credits vacation pay so withheld. The
amount due each employee shall bear interest at the
rate of 6 percent per annum from the date such
vacation pay was payable under the provisions of the
applicable contract until paid.13
In view of the nature and extent of the unfair labor
practices found herein, and as it appears that a
potential threat of future violations exists, we shall
also provide for broad cease-and-desist provisions in
our Order.
CONCLUSIONS OF LAW
1. The Respondent, Star Expansion Industries
Corporation, is engaged in commerce within the
meaning of the Act.
2. United Electrical, Radio & Machine Workers
of America, Independent, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By unlawfully interrogating employees in
regard to their union activity, the Respondent
interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed in
Section 7 of the Act, and has engaged in and is
engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
contractual obligation arising from the same circumstances See
Local 174, Teamsters v Lucas Flour Co , 369 U S 95, fn 9
Consequently, under the facts of this case, we do not find merit in
the Respondent' s contention that the findings in regard to
vacation pay should be deferred pending the determination of the
interpretation of the contract by the State Court in action under
301 of the Labor Management Relations Act C & C Plywood, 385
U S 421
' 1 At the hearing the parties stipulated that in the event that the
decision went against the Respondent with respect to vacation
pay, a blanket or general ruling would be adequate and that a
listing of the affected employees was not necessary
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. By discriminatorily discharging Albert Dinges,
the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act.
5. By discriminatorily refusing to reinstate
George Radzikowski , the Respondent has engaged
in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1) and (3) of the Act.
6. By withholding vacation pay from its
employees as set forth above, Respondent engaged
in and is engaging in unfair labor practices
proscribed by Section 8(a)(1) and (3) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
8. Respondent has not violated the Act in
respects not found herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Star Expansion
Industries Corporation, Mountainville, New York,
its officers, agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discharging or in any other manner
discriminating against any employees in the exercise
of their right to engage in concerted activities for the
purpose of collective bargaining or other mutual aid
and protection.
(b) Coercively interrogating employees as to their
activities in connection with a labor organization.
(c) Discouraging membership in United
Electrical, Radio & Machine Workers of America, or
in any other labor organization , by discharging,
refusing to reinstate, withholding vacation pay, or
otherwise discriminating against employees in
i'gard to their hire or tenure of employment or any
other condition of employment.
(d) In any other manner interfering with,
restraining , or coercing its employees in the exercise
of their right to self-organization, to form, join, or
assist the above-named Union, or any other labor
organization , to bargain collectively through
representatives of their own choosing , and to engage
in other concerted activities for the purpose of
collective bargaining or other mutual aid or
protection, and to refrain from any 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 in Section 8(a)(3) of the Act, as modified
by the Labor-Management Reporting and Disclosure
Act of 1957.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Offer to Albert Dinges immediate and full
reinstatement to his former or substantially
equivalent position without prejudice to his seniority
or other rights or privileges.
(b) Offer to George Radzikowski immediate and
full reinstatement to his former or substantially
equivalent position , without prejudice to his
seniority or other rights and privileges.
(c) Make whole the above -named employees, in
the manner set forth in the section herein entitled
"The Remedy," for any loss of pay and benefits each
may have suffered by reason of the Respondent's
discrimination against him.
(d) Forthwith pay, in the manner provided above
in the section herein entitled , "The Remedy ," to the
strikers involved in the June 2, 1964 , strike who
qualified for but were discriminatorily denied
vacation pay under the agreement between Star
Expansion Industries Corporation and Local 1968,
International Brotherhood of Electrical Workers,
AFL-CIO, the vacation pay due them , together with
interest thereon in the amount of 6 percent per
annum , until paid.
(e) Preserve and, upon request , make available to
the Board or its agents, for examination and copying,
all payroll records , social security payment records,
timecards , personnel records and reports, and all
other records necessary to analyze the amount of
backpay and vacation pay due under the terms of
this Order.
(f) Post at its plant in Mountainville, New
York, copies of the attached notice marked
"Appendix." 14 Copies of said notice , to be furnished
by the Regional Director for Region 2, after being
duly signed by Respondent 's representative, shall be
posted by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter , in conspicuous places, including all
places where notices to employees are customarily
posted . Reasonable steps shall be taken by the
Respondent to insure that said notices are not
altered , defaced , or covered by any other material.
(g) Notify the Regional Director for Region 2, in
writing, within 10 days from the receipt of this
Decision, what steps have been taken to comply
herewith.
14 In the event that this Order is enforced by a decree of a
United States Court of Appeals, there shall be substituted for the
words "a Decision and Order" the words "a Decree of the United
States Court of Appeals Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board, and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that:
WE WILL offer Albert Dinges his former or
substantially equivalent job, without prejudice
STAR EXPANSION INDUSTRIES
to his seniority or other employment rights and
privileges, and pay him for any loss of earnings
and benefits he may have suffered because of
our discrimination against him.
WE WILL offer to George Radzikowski
immediate and full reinstatement to his former
or a substantially equivalent position without
prejudice to his seniority or other rights and
privileges, and make him whole for any loss of
earnings and benefits he may have suffered as a
result of the discrimination against him.
WE WILL pay to all those strikers who
engaged in the June 2, 1964, strike, and who
qualified for vacation pay under our agreement
with Local 1968, IBEW, the vacation pay
discriminatorily denied them.
WE WILL NOT coercively interrogate
employees as to their activities in connection
with a labor organization.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to self-organization, to
form, join, or assist United Electrical, Radio &
Machine Workers of America, Independent, 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 in Section 8(a)(3) of the Act, as
modified by the Labor-Management Reporting
and Disclosure Act of 1959.
WE WILL notify Albert Dinges and George
Radzikowski if presently serving in the Armea
Forces of the United States of their right to
reinstatement upon application in accordance
with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed
Forces.
STAR EXPANSION
INDUSTRIES
CORPORATION
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 745 Fifth Avenue, New York, New York
10022, Telephone 751-5500.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
569
HERMAN TOCKER, Trial Examiner: This proceeding,
with all the parties represented, was heard before me in
Newburgh, New York, at a hearing which commenced
March 16, 1965, continued at intervals for a total of 26
separate hearing days, and concluded late in the evening
of May 20, 1965. The case was heard on pleadings
consisting of the General Counsel's second consolidated
amended complaint, as supplemented by a bill of
particulars and the Respondent 's answer. Following the
conclusion of the hearing exceptionally well prepared
briefs were submitted by the General Counsel,
Respondent's attorney, and counsel for the United
Electrical, Radio & Machine Workers of America (UE),
the principal Charging Party.
THE PLEADINGS
The complaint , in general , alleged that the Respondent
had violated Section 8(a)(1), (3), and (5) of the Labor
Management Relations Act of 1947 , as amended.
Specifically, it alleged that the Respondent committed
these violations:
(a) By discharging Albert Dinges because of his
activities on behalf of the International Brotherhood of
Electrical Workers, AFL-CIO, Local 1968.
(b) By unlawfully interrogating its employees and
threatening them in various respects during the period
preceding the certification of UE as the bargaining agent
for the relevant unit.
(c) By sponsoring and causing the circulation among its
employees of petitions expressing opposition to UE
proposals during collective-bargaining negotiations during
June, July, and August 1964, and threatening employees in
various manners for the purpose of getting them to sign
such petitions.
(d) By negotiating with UE in bad faith and without any
intention to enter into a final agreement with it as
evidenced (1) by its acts with respect to the
aforementioned petitions and its failure to accede to UE's
request to disavow them and to dispel their effects and
(2) its submission to UE, during the course of such
negotiations , predictably unacceptable proposals relating
to arbitrator's powers and jurisdiction, management
prerogative , union security , and subcontracting, and
(3) insisting on the acceptance by UE of such proposals as
a condition precedent to any bargaining agreement to be
made-all such conduct being predicated on the existence
of those petitions.
(e) By, during the months of May and June 1964,
threatening its employees with discharge , loss of vacation,
and other reprisals if they struck or supported a strike by
UE.
(f) By causing a strike, which started June 2, 1964, and
ended August 28, 1964, in which 136 employees, listed in a
schedule attached to the complaint, participated, which
strike is characterized as an unfair labor strike resulting
from Respondent ' s conduct mentioned above and
prolonged by other unfair labor practices.
(g) By wrongfully denying vacation pay to those
employees who had participated in the strike, with the
purpose of undermining UE's status as collective-
bargaining agent.
(h) By wrongfully denying reinstatement to two-named
returning strikers and, following the termination of the
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strike, on or about August 28, 1964, by wrongfully refusing
to reinstate the 136 employees listed in the schedule
(whether or not the strike was an unfair labor practice
strike), this too for the purpose of undermining UE's status
as collective-bargaining agent.
The Respondent in its answer admitted substantially all
or most of the formal and jurisdictional allegations but, to
the extent that any allegation asserted a violation of the
Act, it was denied.
It admitted that the two employees who had been named
specifically had offered to return to work but it claimed
that, following the termination of the strike, every
employee listed in the schedule attached to the complaint
who had not been replaced by a permanent employee had
been reinstated to his former or a substantially equivalent
position with his former seniority and other rights and
privileges, except that certain employees had been denied
reinstatement because of misconduct. It added also that,
subject to the same exceptions for misconduct, all
employees listed in the schedule have been rehired with
the exception of some who refused reemployment and that
the wage rates at which they were rehired were either the
maximum for the job in which they were rehired or the
same as their prestrike wage rate, whichever was the
lower, plus some additional exceptions not relevant here.
While admitting that there had been a strike, it denied
that it should be regarded as an unfair labor practice
strike.
It alleged also several affirmative offenses, (1) and
(2) that the Dinges discharge had been disposed of in an
arbitration proceeding duly held and completed; (3) that
the General Counsel was chargeable with delay in
violation of section 6(a) of the Administrative Procedure
Act as far as the Dinges discharge was concerned; (4) that
the statute of limitations (Section 10(b) of the Act) barred
the prosecution of the alleged unfair labor practices
involving preelection interrogation and threats , failure to
grant vacation pay, and one of the two employees named
specifically as having been denied reinstatement; (5) that
an action was presently pending in the New York State
Supreme Court to recover the vacation pay allegedly
denied to strikers.
During the hearing, several motions to amend the
complaint were granted but these are not of material
significance at this point . To the extent that any particular
amendment became significant it is discussed in the body
of this decision.
THE ISSUES
In a summary fashion the issues may be set forth as
involving:
(1) whether Dinges was discharged because of his
lawful, protected activities as an IBEW steward;
(2) whether the arbitration award should be regarded as
foreclosing consideration of the Dinges discharge, the
arbitrator having sustained the validity of the discharge;
(3) whether there had been unlawful interrogation and
threats during the preelection campaign; (4) whether the
Company was responsible for the preparation and
circulation of the petitions claimed to have been in'
opposition to UE proposals and whether it wrongfully'
interrogated and coerced employees with respect to them;
(5) whether the Company should be held to have bargained
in bad faith and without an intention to enter into a final
agreement with UE because of its conduct with respect to
the petitions and its failure to dispel their effects, because
of its insistence on certain arbitration , management,
prerogative , and subcontracting clauses as a condition
precedent to any final agreement and its rejection of UE's
union security proposals, all predicated upon the existence
of the aforementioned petitions; (6) whether the
Company's arbitration, management, union security, and
subcontracting proposals were predictably unacceptable
and consequently in and of themselves constituted bad-
faith bargaining; (7) whether there had been a threat to
deny vacation pay to strikers and whether the actual
denial was a violation of the Act; (8) whether the strike was
or became an unfair labor practice strike, thereby
imposing on the Respondent the obligation to reinstate all
returning employees who had participated in it;
(9) whether certain employees rightfully had been denied
reinstatement because of misconduct; and finally
(10) whether; assuming that the strike had not been and
had not become an unfair labor strike, did the Company
wrongfully refuse to reinstate certain returning strikers?
THE LABOR ORGANIZATIONS INVOLVED
Between 1957 and March 1964 the employees in the
relevant unit had been represented by the recognized
bargaining agent , Local 1968 , International Brotherhood
of Electrical Workers, AFL-CIO . Following an
organization and election campaign which commenced in
January 1964, United Electrical , Radio and Machine
Workers of America (UE) was, on or about March 12, 1964,
duly certified by the Regional Director as the exclusive
collective -bargaining representative of the employees in
the unit . Both these unions are labor organizations within
the meaning of Section 2(5) of the Act.
On the basis of admissions contained in the answer of
the Respondent I make the following:
PRELIMINARY FINDINGS AND CONCLUSIONS
1. (a) The Charge in Case 2-CA-9839-2 was filed by
Albert Dinges on February 20, 1964, and served by
registered mail upon Respondent on or about February 25,
1964.
(b) The first amended charge in Case 2-CA-9839-2 was
filed by Albert Dinges on April 16, 1964, and served by
registered mail upon Respondent on or about April 20,
1964.
(c) The charge in Case 2-CA-10081 was filed by UE on
June 18, 1964, and served by registered mail upon
Respondent on or about June 22, 1964.
(d) The first amended charge in Case 2-CA-10081 was
filed by UE on July 8, 1964, and served by registered mail
upon Respondent on or about July 9, 1964.
(e) The second amended charge in Case 2-CA-10081
was filed by UE on January 27, 1965, and served by
registered mail upon Respondent on or about January 28,
1965.
(f) The charge in Case 2-CA-10248-2 was filed by UE
on September 21, 1964, and served by registered mail
upon Respondent on or about September 22, 1964.
(g) The charge in Case 2-CA-10340 was filed by UE on
October 27, 1964, and served by registered mail upon
Respondent on or about October 29, 1964.
2. (a) Respondent is, and has been at all times material
herein, a corporation duly organized under, and existing by
virtue of, the laws of the State of Delaware.
(b) At all times material herein Respondent has
maintained an office and place of business in
Mountainville, New York, herein called the Mountainville
plant where it is, and has been at all times material herein,
STAR EXPANSION INDUSTRIES 571
engaged in the manufacture , sale, and distribution of
hardware fasteners and related products.
(c) During 1964, a year representative of its annual
operations generally, Respondent , in the course and
conduct of its business operations , manufactured, sold,
and distributed at its Mountainville plant , products valued
in excess of $1 million of which products valued in excess
of $50,000 were shipped from said plant in interstate
commerce directly to States of the United States other
than the State in which it is located.
3. Respondent is, and has been at all times material
herein , an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
4. UE and Local 1968, International Brotherhood of
Electrical Workers , AFL-CIO , herein called IBEW, and
each of them , are, and have been at all times material
herein , labor organizations within the meaning of Section
2(5) of the Act.
5. At all times material herein , up to on or about
March 12, 1964, Respondent recognized IBEW as the
collective -bargaining representative of its production and
maintenance employees at the Mountainville plant.
6. The Respondent discharged Albert Dinges in
December 1963.
7. All full-time and regular part -time production and
maintenance employees of Respondent , employed at its
Mountainville plant , exclusive of office clericals,
temporary employees , professional employees , executives,
guards, watchmen and all supervisors as defined in
Section 2(11) of the Act, constitute a unit appropriate for
the purpose of collective bargaining within the meaning of
Section 9(b) of the Act.
8. In or about . the month of January 1964 UE
commenced an organizing campaign among Respondent's
employees in the unit described above.
9. On or about March 4, 1964, a majority of the
employees in that unit , in a secret election conducted
under the supervision of the Regional Director for Region
2 of the National Labor Relations Board , designated and
selected UE as their representative for the purpose of
collective bargaining . with Respondent ; on or about
March 12, 1964, said Regional Director certified UE as
such exclusive collective -bargaining representative, and at
all times since that day, UE, by virtue of Section 9(a) of the
Act, has been and is now the exclusive representative of
all the employees in that unit for the purpose of collective
bargaining.
10. On or about March 23, 1964, and at various times
thereafter , Respondent engaged in negotiations with UE
respecting the wages , hours, and other terms and
conditions of employment for the employees in that unit.
The matters in issue now will become the subject of
further findings and conclusions . I shall discuss them in
the following order: (1) the Dinges discharge and
subsidiary questions of law related thereto ; (2) the
vacation pay issue ; (3) the so-called anti-UE petitions;
(4) the alleged threats to employees for supporting the
strike ; (5) the alleged refusal or failure to bargain in good
faith and its various ramifications which include not only
those issues discussed separately but also the contract
clauses which were the stumbling blocks, the complicated
questions of law underlying the Employer's insistence on
those clauses and the overall general conduct of the
Employer; (6) the failure to reinstate Radzikowski and
Drake; (7) the failure to reinstate Blanchard , Secor, and
Brown ; (8) the failure to reinstate Sal Sansone; (9) my
conclusion that the June, July, and Augu st 1964 strike was
not an unfair labor strike and, (10 ) the matter of
reinstatement of returning strikers.
Upon the entire record , consisting of all oral testimony
and documentary evidence , on the basis of my careful
observations of all the witnesses , their demeanor on the
witness stand, the manner in which they gave their
testimony , the overall impressions they made upon me
during the time they gave their testimony, and after
carefully considering all the briefs, I hereby make the
following:
I. FINDINGS AND CONCLUSIONS AS TO ALL MATTERS IN
ISSUE
A. The Discharge of Albert Dinges
On February 20, 1964, Albert E. Dinges filed a charge
against Star alleging that it discharged him on
December 5, 1963, because of his "activity and support of
United Electrical and Radio Machine Workers of America
(UE)." On April 16, 1964, he filed an amended charge
alleging that he was discharged "because of his militant
activity rendered on behalf of a labor organization ." At the
hearing he identified this "labor organization" as UE.
Despite the fact that UE is the labor organization to which
Dinges twice referred as the Union on whose behalf he had
acted , the complaint refers not to UE but to IBEW. It
alleges, "Respondent discharged and thereafter failed and
refused to reinstate Albert Dinges ... because said
employee engaged in lawful protected activities in
connection with his duties as shop steward for IBEW."
[Emphasis supplied.] The evidence embraces activities
both on behalf of IBEW and on behalf of UE and portrays
the transition of Dinges ' loyalty from IBEW to UE.
Respondent admits it discharged Dinges and has
refused to offer him reinstatement but denies that it
discharged him for the reasons set forth in the complaint.
It alleges several affirmative defenses : ( 1) that the
collective -bargaining agreement in effect at the time of the
discharge provided that a discharge claimed to be "not for
just cause" had to be arbitrated, that an arbitration was
conducted and that the arbitrator ruled that "the
discharge was for just cause"; (2) that UE, though not a
party to the collective -bargaining agreement in effect
when Dinges was discharged , claimed the right to conduct
the arbitration proceeding on his behalf, that while IBEW
refused to grant UE that right it "offered to call any
witnesses, ask any questions , and submit any memoranda
that UE might wish to present" but that UE and Dinges
refused this offer, all of which was follow ed by a motion in
an action brought in the United States District Court,
Southern District of New York, to enjoin the arbitration,
which motion was denied, and the subsequent rendition by
the arbitrator of his award sustaining the discharge,
without any application thereafter by Dinges for a
reopening of the arbitration hearing; (3) that the General
Counsel had dismissed an unfair labor practice charge
against Star for violation of the Act in refusing to arbitrate
the discharge with UE instead of with IBEW; (4) that the
time lapse between the filing of the charges, the filing of
the second amended complaint following the first
amended complaint , and the failure to include the charge
in the original complaint was such a lack of "reasonable
dispatch" as to constitute a violation of Section 6(a) of the
Administrative Procedure Act, 5 USC 1005(a).
I shall discuss these defenses in inverse order.
The defense based on Section 6(a) of the Administrative
Procedure Act is rejected not only on the law (W.C. Nabors
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company, 134 NLRB 1078, 1079, fn. 3) but also on the
facts. The Dinges claim was only one incident in a long
series of incidents involving the Respondent with which
the General Counsel was occupied. It cannot be said that it
was not appropriate administrative practice for the
General Counsel to defer precipitate action on this charge
in the original complaint or ultimately to consolidate it
with all the other charges for determination in a single
hearing.
Next is the U.S. District Court action. It is alleged that
following the rejection of the IBEW offer to have Dinges'
case channeled through its attorney, Dinges and his lawyer
left the hearing and advised the arbitrator that an action
would be brought for a determination that UE had the
exclusive right . to represent Dinges in the arbitration. UE
then brought the action in the district court and moved for
a temporary injunction restraining the arbitration. This
application was denied essentially on the ground that
arbitration is a matter of contract and, in view of the fact
that the discharge was to be arbitrated under a contract
between IBEW and the Employer, UE, not being a party to
that contract, was not entitled to relief. This order was not
appealed and the time to appeal therefrom has expired. No
request was made to the arbitrator to reopen the hearing or
to receive additional testimony.
The order denying the application for temporary
injunction is not res judicator . Montogomery Building &
Construction Trades Council v. Ledbetter Erection Co., 344
U.S. 178. At best, it was concerned only with the
conflicting claims of UE and IBEW and was an
intermediate step in the lawsuit. The result might have
been different if, following the arbitration award, Star had
made a motion for summary judgment or had brought a
separate action under Section 301 LMRA or a summary
motion under Title 9, U.S.C. to confirm the arbitrator's
award and had had judgment entered on it. None of these
procedures was followed. The defense based on the
proceedings in the district court is rejected.
The Respondent alleged also that UE's charge that Star
had violated the Act by refusing to arbitrate the Dinges
discharge with UE instead of IBEW was dismissed by the
General Counsel. The issue, as I see it, is not whether Star
wrongfully refused to arbitrate with UE. As the District
Judge correctly stated in denying the motion for a
temporary injunction, arbitration is mandatory only where
there is a contract between parties providing for it. UE had
no such contract with the Respondent and it could not
compel the Respondent to engage in any arbitration with
it. Consequently , it is irrelevant that the General Counsel
dismissed UE's charge that the Respondent wrongfully
had refused to arbitrate the Dinges discharge with UE.
Respondent's primary affirmative defense that the
Dinges discharge has been arbitrated, that an award has
been rendered in that arbitration , and that the award is to
the effect that the discharge was for just cause presents a
more difficult problem . It is well established, as far as the
National Labor Relations Board is concerned, buttressed
by such cases as Textile Workers Union v. Lincoln Mills,
353 U.S. 448; Goodall-Sanford, Inc. v. United Textile
Workers of America, 353 U.S. 550; General Electric Co. v.
Local 205, UE, 353 U.S. 547; and Republic Steel Corp. v.
Maddox, 379 U.S. 650, that when an arbitration award has
been rendered and the proceedings were fair, just, regular,
and not at odds with the Act, the Board will not go behind
that award to reexamine the facts but will allow it to stand.
Spielberg Manufacturing Company, 112 NLRB 1080;
International Harvester Company, 138 NLRB 923, 927;
affirmed sub nom. Thomas Ramsey v. N.L.R.B., 327 F.2d
784 (C.A. 7).
Republic Steel v. Maddox, 379 U.S. 650, 652, points,
however, to an exception to the rule:
As a general rule in cases to which federal law
applies, federal labor policy requires that individual
employees wishing to assert contract grievances must
attempt use of the contract grievance procedure
agreed upon by employer and union as the mode of
redress. If the union refuses to press or only
perfunctorily presses the individual's claim,
differences may arise as to the forms of redress then
available. See Humphrey v. Moore, 375 U.S. 335;
Labor Board v. Miranda Fuel Co., 326 F.2d 172.
The authorities make clear that while an arbitrator's
award ordinarily will not be disturbed by the Board, it is by
no means unassailable . Monsanto Chemical Company, 130
NLRB 1097; Raytheon Company, 140 NLRB 883;
N.L.R.B. v. Walt Disney Productions, 146 F.2d 44 (C.A. 9),
cert. denied 324 U.S. 877. Republic Steel v. Maddox, 379
U.S. 650, above, which Mr. Justice Black in a blistering
dissent denounced as depriving a member of a union of the
historic right to have his claim adjudicated before a court
and jury, recognizes that "if the union refuses to press or
only perfunctorily presses the individual's claim,
differences may arise as to the forms of redress then
available."
It is correct that the contract which governed the
working conditions and terms of employment in the
Respondent's plant provided for arbitration of grievances,
including one resulting from a discharge . It is true also
that Dinges was discharged prior to its expiration and that
under Republic Steel and even under Ramsey where the
collective-bargaining agreement, as here, had expired the
union, IBEW here, presumptively was the party entitled to
demand and have arbitration, and that ordinarily the
resulting award would be binding and final.
The facts in our case dictate a contrary result. In the
first place, the IBEW contract with the Employer gives a
discharged employee the right to file the grievance
[section XIX (a)]. The grievance procedure distinguishes
disputes , differences , and grievances between an
employer and the Company from disputes, differences,
and grievances between the union and the Company
[section XXII (a)(2), (c)]. In making this observation, I do
not overlook (D) of section XXII, which provides that
"either the Union or the Company may institute such
arbitration proceedings . . ." because the preceding
paragraph (C) vests in the employee a right to arbitration
distinguished from that of the Union. Despite re Soto, 7
N.Y. 2d 397, and Parker v. Boroch, 5 N.Y. 2d 156, relied on
by Respondent, I am not convinced that the employee
would not have been entitled independently to institute
and participate in the arbitration proceeding . Pattenge v.
Wagner Iron Works, 275 Wis. 495, 82 N.W. 2d 172; Clark
v. Hein-Werner, 8 Wis. 2d 397, 99 N.W. 2d 132; Hughes
Tool Company, 56 NLRB 981, 982, 983; U.S. Automatic
Corporation, 57 NLRB 124, 135; and see Section 9(a)
LMRA. In Parker the agreement precluded intervention by
the employee and in Soto, as was noted by Judge Froessel
in his dissent, the agreement was not before the court. As
a matter of fact , if Dinges had not tried to have his claim
arbitrated someone might have suggested that he had
failed to exhaust his remedies under the contract. In any
event, as has been emphasized so often , in unfair labor
practice cases involving interstate commerce, it is the
national labor policy and not state law which is controlling,
STAR EXPANSION INDUSTRIES 573
Textile Workers v. Lincoln Mills, 353 U.S. 448. "The Board
is empowered ... to prevent any person from engaging in
any unfair labor practice ... affecting commerce [which]
power shall not be affected by any other means of
adjustment or prevention that has or may be established
by agreement, law or otherwise ...." Section 10(a),
LMRA. The question thus remaining is only whether the
Board should exercise this power in this case.
Under the conditions existing at the time of the
arbitration, it was patently improbable that the IBEW
could diligently and faithfully prosecute Dinges' claim of
wrongful discharge. For a long time prior thereto, he had
been at odds with it and its business agent who appeared,
purportedly on his behalf, before the arbitrator. As a
matter of fact, Dinges had filed charges within the IBEW
against him . The handling of the grievance arising out of
his discharge and his legal representation in any
proceedings concerned with that discharge became the
subject of a bitter dispute between him and the IBEW
attorney. This involved not only claims by Dinges that this
attorney was not representing him adequately, but also
that he could not represent him faithfully because Dinges
was the leader of the movement to have UE replace IBEW
as the bargaining agent for Respondent's employees. This
was aggravated to the extent that, during the election
campaign , the IBEW publicized a letter sent to Dinges by
its attorney maligning Dinges in connection with his
activities against IBEW and on behalf of UE. The
exchange of correspondence was so bitter that under no
stretch of the imagination could it be expected that the
IBEW attorney would make an adequate and effective
presentation of Dinges' side of the case before the
arbitrator. If an employee "is friendly to a rival union or
part of an insurgent faction in the bargaining union, he
may well be wary of a union-controlled grievance
procedure." Note, Federal Protection of Individual Rights
Under Labor Contracts, 73 Yale L.J. (1964) p. 1215. The
ruling in Ramsey v. N.L.R.B., 327 F.2d 784 (C.A. 7),
"There is no statutory or constitutional right of an
employee to be present at an arbitration hearing" is not
absolute. The court hastened to add, "It appears that the
Company fully and adequately defended petitioner's
position at the hearing." (p. 788.) See also Cox, Rights
Under a Labor Agreement, 69 Harvard L.Rev. 601,
particularly 630 et seq. (1956) and Judge Froessel's
dissenting opinion in re Soto, 7 N.Y. 2d 397 at 400, with
Van Voorhis J. concurring. And see Roadway Express,
Inc., 145 NLRB 513, 514, 515.
The arbitrator was duly informed by Dinges, in a
telegram dated February 7, 1964, of his objections to being
represented by the IBEW attorney and his reasons
therefor. These included not only the matters concerned
with the divergent interests of IBEW and UE, but also
claimed defective proceedings within the grievance
procedure and lack of consultation between Dinges and
the IBEW lawyer. The arbitrator replied to the effect that
he had been appointed by the New York State Board of
Mediation after a request by the Employer and the IBEW,
and that he was in no position to interfere in the affairs of
either the Employer or the Union or to suggest to either of
them the identity of their representatives. In short, he took
the position that he was concerned only with the
arbitration of a dispute between IBEW and the Employer
and was not concerned with the fact that Dinges was the
real party in interest . Prior to the writing of that letter to
Dinges, the Respondent's attorney had telegraphed the
arbitrator demanding that the arbitration proceed "at first
available date."
The arbitrator convened his hearing on March 23, 1964.
Dinges and his own attorney (not the IBEW attorney)
appeared there. Present also were the IBEW attorney and
representatives of the Employer. Dinges stated that he did
not wish to be represented by the IBEW attorney but only
by his own attorney. The IBEW attorney offered to allow
Dinges the opportunity to call witnesses on his behalf but
restricted this offer to the condition that whatever
questions were asked of the witnesses and whatever
submissions were made on behalf of Dinges were to be
channeled through him, the IBEW attorney. He refused to
yield to Dinges' attorney the presentation of the arbitration
case. While Dinges' attorney made clear that he
demanded to be recognized as such in the presentation of
the grievance, he demanded also that UE be recognized as
the prosecutor of the grievance, giving as his reason UE's
status as exclusive bargaining agent for the employees at
that time. The employer's attorney opposed any
substitution of UE for IBEW in the proceeding. The
arbitrator ruled that he had no authority to substitute UE
for IBEW, or to substitute Dinges' personal attorney for
the attorney selected by and representing IBEW. Dinges
and his attorney then left and the hearing proceeded in
their absence. All this was set forth in a letter dated
March 27, 1964, which the arbitrator wrote to all the
attorneys concerned. In it he stated further that he would
defer completion of his award for a reasonable period
within a maximum of 30 days because of his understanding
that Dinges' attorney intended to take court action with
respect to the arbitration.
The arbitrator made his award on or about April 28,
1964. It appears from it that he had before him and
considered only the Employer's alleged reasons for the
discharge and held that Dinges' actions in certain respects
set forth in detail in the award
constituted a violation of the parties' agreement and
that his discharge was for just cause . I do not believe
that the Employer' s action in discharging Mr. Dinges
constituted a breach of the agreement or that the
Union suffered any damages by reason of Mr. Dinges'
"discharge."
Clearly, from its face, the arbitrator failed to give any
consideration at all to whether the Employer's alleged
reasons were pretextual only and whether the real reason
was because of his protected union activities. Clearly, his
only concern was whether the discharge was a breach of
the contract with IBEW. Clearly he held only that the
Union suffered no damages by reason of the discharge.
Both Dinges' rights and the public interest, with which the
Board is concerned, were ignored completely and were not
adjudicated.
Consequently it is necessary to examine the facts and
decide de novo whether the Respondent should be held to
have discharged Dinges because he engaged in union
activities which were protected under the Act. Youngstown
Cartage Company, 146 NLRB 305.
At the threshold we are met with an objection that the
complaint is at complete variance with the charges. Both
the charge and the amended charge, supplemented by
Dinges' testimony, alleged that he had been discharged
because of his activities on behalf of UE. The complaint,
on the other hand, alleged that the discharge was because
of his activities on behalf of IBEW. N.L.R.B. v. Fant
Milling Co., 360 U.S. 301, following National Licorice Co.
v. N.L.R.B., 309 U.S. 350, was concerned with the
complaint 's expansion of a charge as filed to the end that
certain actions of the employer, which occurred after the
filing of the charge, were presented'for adjudication by the
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board . Quoting from National Licorice, the Court , in f ant
Milling, said:
"It is unnecessary for us to consider now how far
the statutory requirement of a charge as a condition
precedent to a complaint excludes from the
subsequent proceedings matters existing when the
charge was filed , but not included in it. Whatever
restrictions the requirements of a charge may be
thought to place upon subsequent proceedings by the
Board , we can find no warrant in the language or
purposes of the Act for saying that it precludes the
Board from dealing adequately with unfair labor
practices which are related to those alleged in the
charge and which grow out of them while the
proceeding is pending before the Board ." [pp. 306,
307]
What has been said is not to imply that the Board
is, in the words of the Court of Appeals, to be left
"carte blanche to expand the charge as they might
please, or to ignore it altogether ." 258 F. 2d at 856.
[p. 309]
Here also it is unnecessary to reach the point not
reached by the Supreme Court in Fant and National
Licorice. Although Dinges did testify that when he filed his
amended charge he was referring to UE, the charge itself
made no reference to UE but alleged only that he had been
discharged because of "his militant activity rendered on
behalf of a labor organization ," not otherwise identified.
The Charging Party is not to be expected to be fully
familiar with the law governing unfair labor practices nor
is the General Counsel to be restricted in his investigation
and his formulation of the complaint based on that
investigation when the charge itself does not limit him to
UE but refers only to an unidentified labor organization.
Therefore, it is my ruling that the complaint is not at fatal
variance with the charge.
The Respondent did not rely solely on the legal defenses
discussed above. Its attorney, in response to a request for
a stipulation to that effect, said:
The issue is whether the discharge was
discriminatory, and that depends upon the showing
made by the General Counsel in his direct case. And
we would rely upon the record as to that as well as the
arbitration proceeding.
It is necessary, therefore , to determine whether the
almost totally unrebutted prima facie case is sufficient to
support a finding of an unfair labor practice discharge
because of Dinges' activity on behalf of IBEW. Was Star's
conduct motivated by union animus or did it interfere with
Dinges' exercise of rights under Section 7 or discriminate
against him as an IBEW member or steward to discourage
his or any other employee's membership in or activities on
behalf of IBEW?
The only evidence which has been offered in support of
such a finding is Dinges ' testimony and a communication
from the New York State Industrial Commission. He was
discharged on December 5, 1964. In August 1963, having
become dissatisfied with the manner in which the IBEW
business agent had handled a grievance , he sought to
enlist union officials employed in the shop against both the
Company and IBEW and told them there "could be firings
over this ." There is no evidence the Company knew of
this. He settled , satisfactorily , a seniority grievance in
August 1963. He settled , satisfactorily , an inequity
grievance in September 1963. He disagreed with the
business agent ' s handling of a step increase grievance
arising out of a change in minimum pay but the agent's
action seems to have been reasonable . He, together with
another steward , in November 1963, settled satisfactorily a
"working boss" grievance but, after the settlement,
something else came up and this is discussed at greater
length below . These incidents and his 6 or 7 years of
service as chief steward for IBEW constitute the only
evidence of his activities on behalf of IBEW . His other
activities were political within IBEW and, later , on behalf
of UE against IBEW . There is no evidence that the
Company at the time of the discharge knew anything about
his troubles with IBEW or his support of UE . (The theory
of the case as a whole is largely that Respondent was
friendly to IBEW , the union mentioned in the Dinges part
of the complaint .) The decision to discharge him (his check
was ready) must have been made before a meeting he
demanded to discuss a holiday pay grievance . (The holiday
pay was a gratuitous act of the Company following
President Kennedy's assassination and not required by the
contract .) There is no evidence or contention (not resolved
by the General Counsel in favor of the Company ) that any
other IBEW steward or member ever was discharged or
disciplined . There is not a scintilla of evidence that the
Respondent bore any union animus.
I disregard those portions of Dinges ' testimony referring
to his dissatisfaction with IBEW' s handling and settling of
grievances , his conduct within the IBEW , and the
communication from the New York State Industrial
Commission . None of these is sufficient to bring this case
within either the rule of N.L .R.B. v. Draper , Corp., 145
F.2d 199 (C.A. 4) or that of N.L.R.B. v. Nu-Car Carriers,
Inc., 189 F.2d 756 (C.A. 3), and cases following. They are
at variance also with the complaint . The communication
from the New York State Industrial Commission gives, as
the Employer's reason for the discharge, the commission
by Dinges of "certain union activities that were
detrimental to his interests ." This is only secondary
evidence and, at best , only a State employee's version of
what the Employer had said. Respondent ' s attorney
suggests correctly that , even if considered, there is no
indication whether the activities mentioned were
protected or not.
There is some similarity between Dinges ' version of the
Employer's alleged reasons for the discharge and that of
the Employer.
Dinges, in his testimony , said that at the time he was
discharged he was told that he "was talking strike ... was
telling workers to slow down ... (and he "understood"
that it) was discriminating against colored people." He
testified that Respondent 's personnel manager refused to
give him further facts concerning these charges against
him, that he had never heard of any investigation made by
the Company concerning these alleged activities on his
part , that he had never been given warning concerning any
of them, that he had never told any workers to slow down,
that he had never discriminated against Negro workers in
his union representation activities.
The incident which followed the "working boss"
grievance (deferred above for discussion here ) came about
after the grievance talk was settled satisfactorily and
terminated . Andy Chessman , the steward who had
accompanied Dinges, and the general foreman had gotten
into an argument (probably personal) during which the
latter is alleged to have said to him , "As long as you are
making this personal , I'm personally going out to get you."
At this point Dinges interrupted and said, "Just don't
include Andy Chessman, include myself." Following this,
it is alleged , the personnel manager said , "This can be
arranged ." I am not at all influenced by this because,
STAR EXPANSION INDUSTRIES 575
following my continuous observation of the personnel
manager both on and off the witness stand during and
throughout 26 hearing days, I am convinced that,
separately and apart from the fact that the alleged remarks
were made in the context of a personal argument between
the other steward (who, incidentally, never was
discharged) and the general foreman , after the grievance
for which the meeting had been called had been settled
and closed, the personnel manager 's remark , "This can be
arranged ," (even if made) was nothing more than a quip
and should not be regarded as a threat to discharge for
"not doing work" or for union activities.
This leaves only Dinges' long service as chief steward,
his activities in the settlement of grievances, his
uneventful work record, and his categorical denials of the
alleged reasons for the discharge . Is the condition of the
record such that, in view of Dinges ' denials of the conduct
he says the Employer assigned as the reasons for his
discharge, the duty of going forward with the evidence
further than it did and presenting evidence in support of
the alleged reasons given for the discharge fell upon the
Respondent ? The Respondent did not go forward except
to deny that there was talk about firing and to show that
Chessman never was even disciplined . Must the decision
therefore go against it? I am not so persuaded . Even if
there was a duty to go forward to a degree greater than that
to which the Respondent went we still are required to
determine whether, despite such failure to go forward,
there is a "preponderance of ... testimony (to support a
finding that the Respondent) has engaged in (the ) unfair
labor practice" alleged in the complaint . Giving all the
evidence here presented every fair intendment, I am
unable to find, regardless of what the true motives for the
discharge might have been , that Respondent (as alleged in
the complaint , by which I am bound), interfered with or
discriminated against Dinges as an IBEW member or
steward or discharged him to discourage his or any other
employee's membership in IBEW (Northeastern Indiana
Building and Construction Trades Council [Centiliure
Village Apts.] v. N.L.R.B., 352 F.2d 696, (C.A.D.C.)). His
own testimony shows that during all the years he was chief
steward his activities as such were respected and there is
no suggestion that the Company ever was opposed to his
union activities or to IBEW, or ever hindered them.
Moreover, during all this time no charge prior to the
Dinges charge had been filed with the Board against
Respondent . I am not unmindful that it could be argued
that an employer's discharge of an employee for "talking
strike" could be a violation of Section 7 but this argument
is of no avail because a strike might be unprotected within
the rule of Draper, 145 F.2d 199, and certainly would have
been a violation of the "no-strike " clause of the contract in
effect. The per se implications of N.L.R.B. v. Burnup &
Sims, Inc., 379 U.S. 21, do not come into play here because
of Dinges ' longtime respected union activity and the lack
of IBEW animus. Paragraphs 6 and 7 and paragraphs 22,
23, and 25 of the second consolidated amended complaint,
insofar as they are concerned with Dinges , should be
dismissed for lack of substantial evidence in support of the
charge as therein alleged.
B. The Vacation Issue
During the hearing the language of the complaint was
amended to allege that "since on or about July 16, 1964,
Respondent has failed and refused to grant vacation pay to
various of its striking employees , whose right thereto had
accrued prior to the (June 2, 1964) strike ... under the
terms and conditions of employment then prevailing. . ."
and a number of employees were added to the schedule
which had been attached . There is no need to list the
employees involved because it has been agreed that they
can be referred to in a general ruling if the order goes
against the Respondent . The Respondent admits that
employees who joined the June, July, and August 1964
strike were denied vacation pay but denies that they are
entitled to any relief . It has taken the same position in a
New York State Supreme Court action which had been
brought on their behalf for the recovery of vacation pay.
It appears from the record that employees who did not
join the strike and otherwise were qualified for vacation
pay under the contract between the Company and the
IBEW did receive vacation pay. This procedure was
adopted voluntarily by the Company even though the
contract with IBEW had expired on March 11 , 1964, and a
new contract with UE, the newly certified bargaining
agent , had not been consummated . As a matter of fact, at
the April 28 , 1964, negotiating meeting, the Company said
"We are still operating under the economic conditions of
the old I . B.E.W. contract."
That a civil action is pending in the New York State
Supreme Court for the recovery of these vacation benefits
and that a direction that they be paid in this proceeding in
effect may result in the enforcement of a contractual
obligation is irrelevant if it be found in this proceeding that
the denial of vacation pay constituted an unfair labor
practice . In Local 174, Teamsters v. Lucas Flour Co., 369
U.S. 95, 101, footnote 9, the Supreme Court said:
It is, of course, true that conduct which is a violation
of a contractual obilgation may also be conduct
constituting an unfair labor practice , and what has
been said is not to imply that enforcement by a court
of a contract obligation affects the jurisdiction of the
N.L.R.B . to remedy unfair labor practices, as such.
The only reason for denying vacation pay to the
employees involved was attributed by the Respondent to
their having been out on strike. The Respondent
specifically agreed that any employees who remained at
work "until the plant closed for vacation on July 17, 1964
... (were) eligible for vacation pay." Thus, it regarded its
obligation to give vacation pay as surviving the expiration
of the contract. As noted before , it so stated at a
negotiating session . Section XV of the expired contract
was concerned with vacations. It defined the "vacation
year" as being the period starting July 1 and ending
June 30, inclusive . This provision, since it provided for a
vacation year ending more than 3-1/2 months after the
termination date of the contract , must be regarded as
evidence of the intention of the parties that the right to
vacations was to survive its expiration. Whether that be
the case or whether vacation rights are to be regarded as a
form of deferred compensation , it seems clear to me that
employees who qualified in the manner provided in section
XV for vacations acquired vested rights thereto which
could not be divested merely because they engaged in a
strike on June 2, 1964 . Without getting into the overall
question of the rights of an individual under an employer-
union collective-bargaining agreement (see references to
this in the portion of this Decision concerned with the
discharge of Albert Dinges, Summers , 37 N.Y.U.L. Rev.
362; note, 73 Yale L. Journal , 1215, and Cox, 69 Harvard
L. Rev. 601 ), the individual employees at the very least
were third party beneficiaries.
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This vacation issue seems to be squarely within the rule
of Great Dane Trailers, Inc., 150 NLRB 438. There the
Board held , after finding facts similar to those here, that
"Any striker who had not yet been permanently replaced
was entitled, as an employee under Section 2(3) of the Act,
to be treated in the same fashion as other employees. And
even those strikers who had been permanently replaced
before the date of payment of vacation benefits were
entitled to a pro-rata share . . ." of vacation pay.
In our case, although the vacation year ended June 30,
1964, the contract provided, "Vacation pay will be
computed on the basis of the straight time hourly rate in
effect on June First." The strike did not start until June 2.
Respondent refers to the vacation clause and points out
that it provides that "An employee who quits or is
discharged for cause shall not be entitled to any vacation
pay." Its interpretation of the clause , although I disagree
with it , appears to have been sincere. This was made clear
from the ante litam motam position taken as early as
April 9, 1964. It was consistent in this interpretation
because strikers who returned to work prior to the end of
the strike also were denied vacation pay. Since the strike
did not start until June 2, 1964, I do not perceive how the
argument that some had been permanently replaced and
thereby became ineligible for vacation pay can be valid.
Even if there could have been a permanent replacement as
early as June 2, the first day of the strike, obviously there
had been none on June 1, the date specified in the contract
as the basis for computation of vacation pay. Moreover,
under the Board's ruling in Great Dane, even strikers
permanently replaced were entitled to receive a pro rata
share of vacation pay. An employee who strikes, whether
or not he is permanently replaced is not an employee "who
quits or is discharged for cause." For that reason the
quoted portion from the vacation clause of the contract is
inapplicable.
Respondent argues also that the expired contract
"contemplated that employees would be actively at work
at vacation time unless the employer had laid them off for
lack of work." I do not find any such provision in the
vacation clause but the Company did make this assertion
as early as April 9, 1964. Although a portion of the clause
does refer to "laid off" employees, that does not require us
to imply and read into the contract that employees actually
must be employed at vacation time. The provision
concerned with laid-off employees is a plus provision for
the benefit of such employees. It provides specifically for
the payment of vacation pay to them within the schedule
set up in the clause and when such payment shall be
made.
Respondent argues further that, since the expired
contract contained a no-strike clause which would have
made a strike unlawful , subjecting the strikers to
discharge , the strikers in effect broke the contract and
were not entitled to receive vacation pay. The expired
contract is not susceptible to such a construction. By its
very terms the vacation clause survived its expiration. The
no-strike clause in combination with the vacation clause
and all other clauses of the contract did not result in such
an entire contract as to make it indivisible as far as
vacations were concerned . To the extent that any
individual employee earned vacation credits by working,
there was substantial performance of his obligations under
the contract, both during the time it was in effect and after
its expiration. It seems fallacious to argue that if the
contract had continued in effect, a striking employee could
have been discharged when the circumstances were such
that the contract no longer was in effect. Moreover, even if
it had been in effect and an employee became subject to
discharge for striking , no employee actually was
discharged in this context.
Since the only reason for denying the employees
involved vacation benefits was that they had gone out on
strike, Respondent did violate Section 8(a)(1) and (3) of the
Act for the reason stated by the Trial Examiner at 442 in
his decision in the Great Dane case.
Although the General Counsel contends also for a
finding of violation of Section 8(a)(5), I am unable to
conclude from the facts of this case that the Employer did
in fact violate that section by the position it took on the
vacation issue. The matter of these vacations was
discussed during the negotiations . The Employer listened
to the discussion , gave it consideration , and later informed
the Union's representatives that it had concluded
that striking employees were not entitled , according to its
interpretation of the contract to receive vacation pay. This,
I emphasize , was not a new position but a reaffirmation of
its earlier position. I am unable to find that there was a
refusal to bargain as to vacation pay or that the Employer
did not bargain in good faith with respect to it. Every
difference as to the legal interpretation of a contract,
particularly a difference apparently sincere, should not be
regarded as a basis for a finding of violation of Section
8(a)(5) of the Act. For the same reason I preceive no basis
for a finding that the Company's action with respect to
vacation pay was undertaken for the purpose of
undermining UE. It cannot be considered in the overall
consideration of whether there was good-faith bargaining
during the negotiating sessions. I have no doubt that its
position would have been the same if the Union had been
IBEW. Nor may the denial of vacation pay be regarded as
converting what started as an economic strike into an
unfair labor strike. The result might have been different
had the Union offered unequivocally to terminate the
strike if the Employer changed its position and agreed to
give the employees their vacation pay and the Employer
then rejected his offer, causing the strike to be prolonged
thereby. This the Union never did. It always coupled that
issue into the other issues.
C. The Alleged Preelection Interrogation and Threats
Paragraphs 10 and 11 of the complaint allege that, at
times in January and during the months of January
through March 1964, Respondent's personnel manager
and a supervisor interrogated its employees concerning
their UE membership , activities , and sympathies and
threatened plant closing, discharge, and other reprisals for
UE membership and support. These allegations are denied
by the Respondent which pleads as well that prosecution
is barred by the 6-month statute of limitations contained
in the proviso of Section 10(b) of the Act.
The General Counsel opposes the plea in bar on the
basis of Sam Klain and Sons, 127 NLRB 776. In the Klain
case a broad interpretation was given to the language,
"and by other acts and statements ." The Board used it as
justifying consideration of events not specifically alleged
in a charge filed "within a few days after the time" they
happened. The first amended charge here was filed
April 16,1964, in Case 2-CA-9839-2. This uses the words,
"and by other acts the above-named employer has
interfered, restricted and coerced its said employee."
These words are not used as they were used in Klain.
They refer to "its said employee," meaning Dinges and no
STAR EXPANSION INDUSTRIES 577
other employee. The General Counsel then cites the
wording of a charge filed in Case 2-CA-10081 on June 18,
1964, also timely if effective, "It (the Company) also
engaged in a campaign of threats and intimidation prior to
and after the strike." The linking of this alleged campaign
of threats and intimidation to the strike which did not
occur until June 2, 1964, seems to be stretching too far
when it is sought to embrace within it alleged conduct
during an organization campaign prior to an election held
March 4, 1964. While the reliance on Klain is rather thin I
find it unnecessary to rule specifically whether the statute
of limitations should be held to bar consideration of these
two paragraphs of the complaint. It is desirable that I pass
on their merits because the General Counsel relies on
them not only as the basis for an independent charge but
also as background for the overall charge of lack of good-
faith bargaining during the contract negotiations following
the certification.
Of great significance, both in the consideration of these
charges and in the consideration of the bad-faith
bargaining charges, is the obviously traumatic experience
of the Respondent when suddenly, after 6 years of
apparently cordial relations with IBEW, a different union,
UE, appeared on the scene and sought to represent its
employees as their bargaining agent . Somewhat more than
casual or idle curiosity about the new union, provided that
it does not lead to clearly positive violations of the rights of
employees under Section 7 of the Act, should be expected.
In support of these allegations the General Counsel
relies on alleged remarks to Annette Santiamagro, Vincent
Bellucci, Herb Brown, and Virginia Howard.
Santimagro's testimony is about two incidents. She says
(1) that on January 3, 1964, the personnel manager asked
her whether she had seen UE cards and if she knew who
was passing them out, and (2) that about a week later, after
he told her there was no job opening for her father, he said
(a) that he knew UE business was going on in the plant and
who was involved in it, (b) that a lot of people were going to
be hurt and fired, and (c) if she was involved she should
watch her step "as a warning." She says that these
conversations arose in connection with her desire that her
father be employed at the plant to ease the transportation
problem of her sister and herself. While not of decisive
importance, the record shows that, although she suggested
that this potential hiring was something new that came up
in January 1964, her father actually had signed an
application for employment at the same time that she and
her sister had filed their applications, August 5, 1963.
Within a day or at most a very few days after the January
1964 meetings she gave a Board agent statements of the
alleged conversations. (They were dated January 12 and
14, 1964.) Her version of the conversations must have been
conditioned by her resentment of or her disappointment
with the fact that her father was not hired. She testified
also that sometime during the spring, about 2 weeks before
the election, she was approached by her supervisor (whose
name she did not even know), and that, after
complimenting her on her work, he asked her whether she
was still with IBEW, saying that he really did not care and
that he was just curious. She told him that she did not want
to have anything to do with either union. This last incident
was not the subject of an immediate statement or
communication to the Board. It was communicated by her
to the General Counsel's attorney during his preparation of
the case, only a few days before she testified. This failure
to report the new interrogation seems notable considering
the timing of her prior reports and that she had attended
many union meetings and the UE campaign had become
very active after it is alleged to have occurred. She was
never disciplined or discharged and seems to have
terminated her employment voluntarily.
The personnel manager denied interrogating her about
UE activities and warning her of any reprisals. At best, her
conversation with her supervisor , if actually there was one,
suggests that it was a friendly interchange of pleasantries.
To the extent that the personnel manager 's version of the
conversation contradicts hers, I accept his. I have
concluded that the rest of her testimony as to interrogation -
and threats is not to be credited.
The testimony given by Bellucci is to the effect that the
personnel manager , when interrogating him, referred to
the "rebel union ." In the same breath that he so quoted
the personnel manager he said , "Well, I couldn ' t give you
word for word, but just a supposition." This "supposition"
was based on the fact that he had "UE in mind (because)
they were the ones that were petitioning." The personnel
manager denies making this sort of inquiry of Bellucci. He
affirmatively states that, having been surprised by the UE
petition, he inquired of Bellucci (and also of Brown above
mentioned and other employees) whether they had heard
anything about it. A strong effort is made by the General
Counsel to discredit his versions of the conversations by
pointing to inconsistencies or contradictions in his
testimony with the contents of the statement given by him
to a Board agent. An argument could be made that there
are some inconsistencies or contradictions. However,
considering the circumstances under which that statement
was taken down by the Board agent (it was written in'
longhand in a rambling fashion), its ex parte nature, and
bearing in mind as I have said before (see p. 10 hereof) that
laymen are not so familiar with the niceties of labor law as
to understand fully the broad spectrum of inferences
which may be drawn from words lightly used in documents
not subjected to painstaking analysis at the time of their
execution, we should not be quick to condemn testimony
as false dust because some contradictions and
inconsistencies may be argued after searching analysis.
We are all aware of the fact that some very experienced
lawyers, hearing examiners , judges, and others write and
rewrite even single sentences anywhere from two to a
dozen or more times to make sure that they set forth what
is intended to be set forth.
To the extent that there were interrogations I view them
as a normal reaction of a personnel manager to the sudden
advent of UE on the scene and his desire to ascertain
whether in fact there was genuine and sufficient interest of
the employees on behalf of UE as opposed to IBEW, the
then recognized bargaining agent. Blue Flash Express, Inc.,
109 NLRB 591, 592.
There remains the alleged threat, about 2 days before
the election, that the plant would be closed down or moved
and that everyone would be out of a job. This is found in
`Virginia Howard's testimony. The context in which this
alleged threat was made was a discussion with her by
Loalbo, a minor supervisor, about an argument that she
had had with another employee concerning the respective
campaigns of IBEW and UE. Loalbo did whatever any
supervisor would be expected to do. He tried to get her and
the other employee to compose their differences. It was
during this effort that Loalbo said, according to Howard,
that people in the plant were getting themselves into
trouble because the owner "could" close the plant or move
it. (She subsequently changed the word "could" to
"would.") She admitted that Loalbo also said that the
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other employee had the "right to feel the way she felt and
that (she, Howard) had a right to feel the way (she) felt."
Loalbo denied that he had said anything about closing
the plant . He supported the unlikelihood of any such
remark by showing that he had never had any
conversations with the plant' s owner about union matters
or with any officials about the possibility of the plant being
closed. If plant closing actually was discussed in the
conversation , the actual nature of this discussion and
whether in fact it was threatening or coercive under
Section 7 of the Act is greatly in doubt . Even Virginia
Howard initially did not testify that Loalbo said that plant
would be closed or moved. She testified, after referring to
her argument with another worker, that he said, "The
people in here are getting themselves into trouble because
Mr. Ogden, the owner , could either close this plant or
move it and we will all be out of a job." To me this seems
more like an exploring of possibilities and conjecture on
the part of Loalbo at worst as to what might result not
because of union activities but because of intramural
bickering among the employees.
In any event Loalbo was only a minor supervisor. He
was not in any position where he could make or even
influence a decision to close the plant . The alleged remark
(the only such remark in the entire case) was not "made by
one who is a part of the company management , and who
has the power to change prophesies into realities . . . ."
N.L.R.B. v. Nabors, 196 F.2d 272 (C.A. 5). The plant never
closed and was not moved.
For all the foregoing reasons the allegations contained in
paragraphs 10 and 11 of the complaint should be
dismissed.
D. The Anti-UE Petitions
The UE, on December 23, 1963, applied to the Board for
certification as bargaining representative on behalf of the
production and maintenance employees at Respondent's
factory in Mountainville , New York. An election was held.
Out of approximately 350 eligible voters, 183 voted for UE,
148 voted for IBEW , 3 voted against both and there were 6
challenged ballots. On March 12 , 1964, the UE was
certified as the exclusive representative of all the
employees in the bargaining unit.
Following such a close election and bearing in mind that
the IBEW had been the recognized bargaining agent since
1957, it is not strange that there remained a good deal of
IBEW loyalty in the shop and that many employees
remained opposed to UE.
In the complaint [paragraphs 14(a), (b), (c)j it is alleged
that the Respondent "sponsored and caused to be
circulated among the employees at said plant, petitions
expressing opposition to the proposals made by UE" in the
contract negotiations (which commenced within 2 weeks
after the certification); that the Respondent "orally
threatened employees ... with discharge and other
reprisals in order to induce them to sign " such petitions,
and "coercively interrogated various employees
concerning whether they had signed such petitions"; and
that Respondent 's object with respect to the sponsorship
and circulation of the petitions and its threats and
interrogations concerning them was "to undermine UE's
status as collective bargaining representative , and its
position respecting collective bargaining with
Respondent."
Many witnesses were called by the General Counsel to
demonstrate that "petitions" had been circulated around
the plant , that signatures therefor had been solicited and
procured, and that UE adherents were bypassed in
connection with such solicitations . There was testimony
also that several supervisors had inquired about the
petitions , had demonstrated their desires that the petitions
be signed , had intimated , suggested , or actually warned of
reprisals which would be taken against employees who did
not sign the petitions.
Despite the fact that the testimony establishes clearly
that many papers were being circulated around the plant
and that signatures were being sought for them, the
General Counsel was unable to produce even one paper
which he was able to connect directly to the Respondent.
The nearest he came to producing any paper was when, on
the direction of the Trial Examiner, he subpenaed an
IBEW business representative to bring to the hearing "all
papers, petitions , circulars and communications of any
kind or nature, signed by employees of Star Expansion
Industries Corporation, with respect to a preference on the
part of said employees in opposition to the United
Electrical , Radio and Machine Workers of America (UE),
or in opposition to a union shop or a checkoff clause in
favor of said UE in any contract it might enter into with
Star Expansion Industries Corporation, covering the
period March 4, 1964 to the present ." The IBEW
representative appeared with 20 sheets of paper each of
which contained many signatures and eac h of which had at
the top an identical legend . He testifie d that these had
been circulated and the signatures obtained thereon by
several persons who, during the course of the hearing,
were identified as persons who had circulated petitions
among the employees and obtained signatures thereon. He
testified also that he had received them in August 1964.
None of these papers, although offered by the General
Counsel, was received in evidence . The reasons for not
receiving them were that they were not within the
framework of the allegations of the complaint and that
there was a failure to link them directly to the Respondent.
The General Counsel never availed himself of the
Examiner 's specific invitation to him to link them to the
Respondent . For that reason the legend at their top
appears in the record only as an offer of proof. In order to
clarify the first of the two reasons for not receiving them, I
observe here that they were merely to the effect that the
signers did not want to be represented by UE and
rescinded a prior authorization, if any, that UE represent
them. Thus, even if the papers brought in by the IBEW
representative had been linked to the Respondent they
would not have supported the allegations contained in the
three subdivisions of paragraph 14 of the complaint. There
was nothing in them "expressing opposition to the
proposals made by UE" in the bargaining negotiations.
The IBEW' s representative testified that these papers had
been solicited by employees, not supervisors or agents, of
the Respondent.
There is no credible evidence of any petition
"expressing opposition to the proposals made by UE" in
the negotiations . Most of the evidence is hearsay or
secondary and of a general nature . All but two of the
witnesses disclaimed having read or seen the contents of
any of the papers . These two brought out that certain of
the papers were opposed to a checkoff, were anti-UE and
favored an "open shop." The sum total of all the credible
and probative evidence , putting together both that in
support of the complaint and that of Respondent's
witnesses is that , regardless of the actual contents or
wording of the petitions , Respondent had an awareness
that they were either pro-IBEW or anti-UE, that although
the measures taken by the Respondent to control the UE
STAR EXPANSION INDUSTRIES 579
opponents from soliciting such petitions on company
premises during working hours proved ineffective the
same was true about UE activities , that some of its
supervisors by inquiring about them may have given some
employees the impression that they encouraged them, and
that Respondent, with knowledge of all that was going on
sought to obtain advantages from it in connection with the
negotiations which were, during all that time, being
conducted with UE for a collective-bargaining agreement.
I am not convinced by any of the testimony that
Respondent had any responsibility for or caused to be
circulated among its employees the various "petitions"
about which the testimony was given. The General
Counsel, himself, stated on the record that the papers
were IBEW papers brought by IBEW people for IBEW
people.
The quantity of the petitions and the emotions following
the certification of UE could have been expected to and
did generate a great deal of turmoil in the shop. As was
said in Burnup & Sims, Inc., 379 U.S. 21, "Union activity
often engenders strong emotions and gives rise to active
rumors." I do not credit any of the testimony in support of
charges of discrimination, threats, or promises of reprisals
which might follow a failure to sign any petition. Not a
single instance of discrimination or reprisal for failing to
sign a petition is suggested in the record
The General Counsel argues strongly that, during the
course of the bargaining negotiations, union
representatives frequently complained of anti-UE petitions
and activities in the shop, requested that the Respondent
take various measures to stop them and that the
Respondent did not take enough measures and those
which it did take were ineffective. This evidence was
received over Respondent's objection but with the oft-
repeated admonition of the Trial Examiner that it was not
being received as evidence that the events did occur but
only as evidence of what transpired at the bargaining
table. To accept the evidence now as proof of the facts
would be contrary to that ruling and, in effect, would be
allowing the case to be built on the second floor in the air
without a first floor and foundation. It cannot be found, on
the basis of complaints having been made, that either
(1) the complaints were valid or (2) that Respondent failed
to take effective measures to curtail or stop the activities
of which complaints were made.
The maximum finding that I can make in this general
area is that Respondent was not antiunion but it was
willing to reap the benefits of any employee activities,
whether IBEW, anti-UE, or if the occasion had arisen,
anti-IBEW and pro-UE, if such activities could be utilized
in furthering its objectives.
With respect to paragraphs 14(a), (b), and (c), of the
complaint , I am unable to find the facts as therein alleged.
I deliberately avoid making any Section 8(a)(1) finding of
a lesser gravity (assuming that there were ground for so
doing) because, by Section 5(a) of the Administrative
Procedure Act, Respondent is entitled to have notice of
"the matters of fact and law asserted" and because the
good -faith bargaining elements of the complaint , alleged
elsewhere, could be seriously affected thereby, to
Respondent's prejudice.
E. Alleged Threats to Employees for Supporting the Strike
In paragraph 16 of the complaint it is alleged that the
Respondent , by certain of its supervisory employees,
"orally threatened its employees with discharge and loss
of vacation and other reprisals if they ceased work and
went out on strike or supported a strike by UE."
The evidence in support of this allegation consists of
testimony by three witnesses, each of whom testified to
conversations held with a different supervisor. It is the
only evidence of such alleged threats made in connection
with a strike which lasted from June 2, 1964, until
August 28, 1964, almost three full months.
One of the witnesses, Blanchard, testified that while she
was working at her machine on either May 21 or 22, 1964,
her supervisor came over to her and said, "By the way, if
you people go out on strike again, I have it on good
authority that you are all going to be fired." The reason for
his having made such a spontaneous remark is not
apparent and why he should have singled her out for the
threat is likewise unapparent. The remark is denied by the
supervisor. The circumstances under which it is alleged
the remark was made cast suspicion on whether , in fact, it
was made. This is not however my only reason for
rejection of this testimony. As far as Blanchard is
concerned, because of my conclusions (expressed
elsewhere) with respect to her veracity and role in certain
events which transpired during the strike, I would not and
do not credit her testimony in any respect.
Another witness testified that following an argument
with her immediate supervisor, she had gone to the
general foreman of the plant to talk to him about this. It
seems that something which her immediate supervisor had
said during the argument caused her to suspect or believe
that this supervisor intended to get her discharged in order
to deprive her of her vacation. Her testimony suggests to
me that her view of the conversation with the general
foreman was a subjective reaction to the argument
between her and her immediate supervisor. This argument
is not of any importance as far as the charge is concerned.
It provided only the reason or occasion for her having the
related discussion with the general foreman. It seems that
he had become aware of the dispute and, after some short
conversation about it, the employee says that he blurted
out, "Vacation?" ". . . Now, there will be no vacation for
anybody that goes out on strike." This is a complete non
sequitur because the matter of a strike had not come up at
all in the argument with her immediate supervisor. There
seems to be no logic or reason for the general foreman to
have injected into this conversation any threat related to a
strike. The witness' positive testimony, purporting to
quote the exact words used by the general foreman, is at
variance with her complete inability to remember any
strike talk at any union meeting although she testified that
she attended all such meetings but the last, which came
long after this incident. The conversation occurred,
according to her, on a Wednesday in the week before the
commencement of the strike on the following Tuesday, the
day after Memorial Day. Bargaining negotiations still were
in progress and meetings were had on May 25, 2 days
before the alleged conversation, on May 28, the day after,
on May 29, and again on June 1, the day before the strike.
It seems to me that this witness was so emotionally
wrought up about her understanding of the dispute with
her immediate supervisor that she connected the strike
which followed a week later with her conversation with the
general foreman and, possibly in brooding about it, came
to the conclusion that he, while discussing her vacation
problem as it arose in her dispute with her immediate
supervisor , converted it into a strike issue as distinguished
from a work performance issue. He denies so having
threatened this employee and denies having any
298-668 0-69-38
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
administrative duties relating to the allowance or
disallowance of vacations. My consideration of this
particular testimony had led me to explore the possibility
that the Company's general position with respect to
vacations might have been known by him and this
knowledge might have prompted him, since the matter of
vacations was the subject of the conversation, to advise
this employee about the possibility that strikers would not
get vacations. This, however, is sheer speculation on my
part and is not enough to alter the fact that I dust am not
convinced by this witness' testimony that the general
foreman, in fact, had made the remark. For this reason I
discard this testimony.
The third witness gave testimony to which Respondent
objected because the supervisor who allegedly made the
threat had not been mentioned in the complaint, and this
particular threat came up only when this witness was
called. Over Respondent's objection, I allowed an
amendment on the ground that it was squarely within the
thrust of_paragraph 16 and could be regarded more
properly as a further bill of particulars. I did this despite
the General Counsel's admission that the failure to include
in the complaint the particular supervisor involved was
sheer oversight on the part of his office. That there was an
oversight is not in doubt because, in the charge filed
June 18, 1964, specific reference was made to this alleged
threat.
The circumstances of the conversation during which the
alleged threat was made are not in dispute. At a social
meeting of an American Legion auxiliary, the witness, the
employee involved, happened to get into what was
definitely a friendly conversation related to her being out
on strike. She is an elderly lady, not in very good health,
and a widow. There is no doubt that she was concerned
with her job and her livelihood. It seems only natural that,
despite the social nature of her meeting with the
supervisor involved, in view of their friendly relationship,
the matter of her being on strike and her possible future
employment was discussed. It is clear from both versions
of the conversation that the necessity for her future
employment was in the minds of both and that it was
discussed. It is also clear that this friend and supervisor
said substantially that if she wanted to go back to work she
would have to apply to the personnel manager and that she
would have the former's help in getting her reinstated. I
am satisfied also that the witness' age was a factor which
entered into the conversation.
The only real issue, is, did this supervisor tell her that if
she was not reemployed she would never get a job
anywhere else because "the Company would never give
her a reference to any other job." Assuming that the
supervisor did say what she says he said about a reference,
taking into consideration the entire conversation, the place
where it was held, its nature, and the friendly relationship
between the two, I hardly think that the remark, if actually
made, could be regarded as anything else but a friend's
advice to another friend as to his personal opinion of the
possible actions of the Company in the future. This is
hardly a threat. The witness never was denied
reemployment and was actually in the Company's employ,
although out on sick leave, at the time she gave her
testimony.
The supervisor denied having told her that the Company
would not give her a reference. Apart from this, the only
substantial difference between his version of the
conversation and hers is that he says the conversation was
had while they were dancing together and she says that he
came over to the table where she was sitting with her
friends and in three short sentences told her that if she
wanted to go back to work she would have to apply to the
Company's employment bureau, that he would help her,
that she was too old to get another job, and that the
Company would not give her a reference to any other job.
This was all at the table where she had been sitting with
her friends. A conversation of this nature more probably
was not conducted so publicly and so abruptly at a table
where the witness was sitting with her friends. The
likelihood is that such a conversation would not have been
so publicly aired and the supervisor's version of it and the
conditions under which it was held is the more likely and
more credible version. Again, not only am I not convinced
that if any remark about references was made that it was a
threat, I am not even convinced that it was made.
I am unable to find that any one of these alleged threats
was made, and for that reason subdivisions (a) and (b)
which constitute paragraph 16 of the complaint should be
dismissed.
F. The Alleged Refusal or Failure to Bargain in Good
Faith (Section 8(a)(5))
A large part, if not most, of the bad-faith bargaining
portion of this case is related to the Respondent's
advocacy for and insistence upon certain contract terms
during the course of 38 negotiating sessions starting on
March 23, 1964 (11 days after UE was certified as the
collective-bargaining representative of the Company's
employees), and ending on January 13, 1965 (more than 4-
1/2 months after UE had agreed to end a strike it had
started June 2, 1964,-UE's offer to return to work having
been made on August 27, 1964).
Thus, it appears that the Company quite promptly
entered on its statutory duty to bargain collectively with
UE and continued with great frequency. This continued
during both the short-lived April strike and the June, July,
and August strike. For a long time after the 3-month strike
was abandoned Respondent continued to meet and confer
with the Union at reasonable times in its effort to negotiate
an agreement.
It is unfortunate that we have been deprived of the
testimony of Respondent's attorney who was its principal
negotiator at every one of the bargaining sessions and that
of the Union's attorney who participated, although he was
not its principal negotiator, in 22 sessions. Both originally
had planned to testify. During the course of the hearing
their attention was directed to the opinion of the Circuit
Court of Appeals in Vanderbilt Products, Inc. v. N.L.R.B.,
297 F.2d 833 (C.A. 2). Presumably, because of the ethical
considerations cited in that opinion they elected not to
testify. The record however does have in it much
testimony by union representatives and by Respondent's
personnel manager, copies of documents which frequently
were the subject of the negotiations and, what I believe to
be truthful and pretty accurate, a set of notes of what
transpired at most of if not all the crucial sessions held.
These were made by Respondent's personnel manager.
The charge of bad-faith bargaining (paragraph 15 of the
complaint) is hinged, to a great extent, on the claim that
behind it all and as primary evidence of its intention never
to enter into an agreement with UE were the Respondent's
sponsorship and circulation among its employees of
petitions objecting to the bargaining proposals made by
UE. I can make no finding of fact that such actually was
the case. This has been treated at length elsewhere in this
Decision. Nevertheless, I do not agree with Respondent's
STAR EXPANSION INDUSTRIES 581
contention that , because of the hinging of that particular
allegation to the charge of bad -faith bargaining, in the
event that it is not sustained , a finding of bad-faith
bargaining may not be made because consideration of the
additional matters alleged in paragraph 15 of the
complaint would be varying its theory . Regardless of any
criticism of the manner in which the complaint was
drawn , if any of the additional matters alleged in that
paragraph were in fact found to be bad-faith bargaining the
charge of violation of Section 8(a)(5) would have to be
sustained.
Thus interpreted , paragraph 15 may be read to include
allegations to the effect that Respondent violated its
obligations under Section 8(a)(5)of the Act by the position
it took with respect to its proposals involving arbitration
(coupled with an injunctive provision specifically
applicable to the no-strike , no lockout clause, a
management prerogative clause , a sub-contracting clause,
and its opposition to certain union-security provisions).
It is alleged, "Respondent insisted on acceptance by UE
of such proposals as a condition of any collective-
bargaining agreement to be made, predicating its conduct
upon the existence of the petitions ...... (discussed and
rejected elsewhere). It is alleged also that the proposals
were "predictably unacceptable ." The General Counsel,
during the hearing and in his brief , has argued that some of
these, if not totally at least in some respects , were per se
violations of Section 8(a)(5) and therefore in and of
themselves justification for the issuance of an order.
These include particularly the so-called injunctive power
sought for the arbitrator , a waiver of the right of removal of
a State court proceeding to a Federal court , and the
subcontracting clause, which I shall discuss at length
below.
A charge of bad-faith bargaining should be determined
after consideration of the overall conduct of the employer.
Emphasis on this should not obscure the concomitant
obligation to weigh allegedly offensive acts of the employer
against the background of the union generally and its
activities and conduct directly related to this employer and
this case , or relevant thereto. Such factors, are, for
example, UE ' s announced antipathy to arbitration
(contrary to the National Labor Policy), its vituperative
preelection campaign against IBEW in which it made
serious charges against the employer suggesting not only
corrupt and collusive administration of the then existing
contract with IBEW but also collusive agreement upon
unfavorable terms and conditions of employment and
finally the Union 's own adamant and immutable attitudes
frequently taken during the course of the bargaining
sessions . Just as the Board considered general, public
utterances of the company 's labor relations counsel as
having a bearing on the determination of its good faith in
N.L.R.B. v. Reed & Prince Mfg. Co., 118 F .2d 874 (C.A. 1),
at 882, I too regard as significant and as having a bearing
upon whether the Company acted reasonably in its
insistence on certain provisions UE's public
announcement expressing a policy against arbitration of
grievances and its preference for a resolution of such
grievances either directly in the shop or by strike. In
consequence of all this, it is my mature conclusion that,
having just completed 6 years of good labor relations under
contracts with IBEW and the sudden displacement of
IBEW by UE following a bitter campaign and its
awareness of UE 's general policies , the Respondent
approached its bargaining negotiations with UE not with
bad faith or an intention not to execute a final binding
contract but rather with fear and a hope that it would
achieve contract provisions which would assure quiet and
cordial labor conditions in its plant.
This fear of UE was aggravated further by the
Company's concern over its past widespread
subcontracting practices and the possible impact upon
them of the Board's Decision in East Bay Union of
Machinists, Local 1304, Steelworkers (Fibreboard Paper
Products Corp.) v. N.L.R.B., 138 NLRB 500, enfd. 322 F.2d
411 (C.A.D.C.),just a few months before UE was certified.
I have mentioned UE's adamant position. It was
particularly so on union shop and checkoffbefore the June,
July, and August strike and on union security after the
strike started. The Employer was against them. It did not
predicate its conduct on the existence of the petitions.
Some of its objections to union security and checkoff were
based on its belief that there was widespread opposition to
UE in the plant. This is supported by evidence discussed
in other parts of this Decision and also by the fact that the
UE was unable to get effective employee participation,
either in the April walkout or the prolonged June-August
strike. Only about half struck on June 2 and, by June 29,
nearly 50 returned. On that day it had a working force of
more than three-quarters of its normal employment. Under
such circumstances, opposition to a union shop or agency
shop and to checkoff does not seem to be unreasonable,
frivolous, or arbitrary. It is important to note that
Respondent's position was not like that of General Motors
in N.L.R.B. v. General Motors Corp., 373 U.S. 734, where
GM "decline(d) to comply with (the Union's) request for a
meeting" to bargain over the proposal. Here there was no
such categorical refusal to bargain . On the contrary there
were numerous times when the Union's proposal came up
for discussion and the Union's proposed modification also
was discussed frequently. These were among the so-called
noneconomic issues which were taken up at intervals and
at other intervals deferred-a procedure not unusual in
negotiations.
Pointing to cases where an employer denied such
clauses to a union when such clauses had been in a prior
contract as evidence of bad faith and as indicative of
intention to downgrade the union does not change the
result. Apart from the undeniable fact that a large
proportion of Respondent's employees either were not
members of UE or were strongly opposed to it, the prior
union contract in our case had not been made with UE but
had been made with another union, IBEW.
There is also great reliance on a contention that
Respondent had said that union security would be denied
"even at the end" indicating that there would be no
agreement which contained any sort of union-security
clause. There is grave doubt whether any such statement
ever was made by the Respondent although both Bloch,
the Union 's principal negotiator, and Farris, the
employees' committee member, so testified. Bloch
obviously had memorized his testimony and they both
testified mainly on the basis of the Farris notes (which had
been edited and rewritten) and purported to quote
Respondent's attorney as having used those words. Bloch
later admitted that his affidavit submitted to a Board agent
made no such claim and that his own notes contained no
such statement . Farris admitted that her original notes,
although they generally showed what various persons said,
did not show that Respondent's attorney made this
statement . If such a comment appears in her original notes
it is entirely consistent with her admissions that it could
have been her subjective reaction to a proposal to leave
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this clause to the end. Opposed to the Union's claim, there
is testimony that no such statement was made.
As far as the other references to the Respondent's
position on union security are concerned, a reading of
General Counsel's Exhibit 36, on which he relies greatly
by selective quotation, demonstrates only that this was a
recurring topic of discussion, that the Respondent took a
strong position opposed to an equally strong union position
with minor concessions, and that there were numerous
deferments for the purpose of going to other matters in
order to avoid a breaking off of negotiations. This exhibit
shows also that union negotiators took the flat position that
without union security there would be no agreement.
Union security and checkoff are matters for collective
bargaining and subject to impasse. Consequently, a
continued and final inability of the parties to agree on the
inclusion in or exclusion of such provisions from the
collective -bargaining agreement is not a violation of
Section 8(a)(5). Section 8(d) of the Act expressly provides
that the obligation to bargain collectively, etc. "does not
compel either party to agree to a proposal or require the
making of a concession."
The management prerogative clause as proposed by
Respondent specifically restricted it to matters not
covered by the contract. There is in the record an
agreement made between UE and a company in
Schenectady which has incorporated within it a broad
management clause. While not precisely in the words of
other management prerogative clauses, the Respondent's
proposal did not vary to any remarkable degree from such
heretofore held to be legitimate for negotiation to an
impasse. A portion which would have allowed
management "to determine the work pace and levels of
work required of employees" was eliminated during the
course of negotiations Another portion, to which the
Union had strenuous objection, was that the Company
would have the right to "determine the number and
location of the company 's plants." This is not an unnatural
prerogative of management. Regardless of the Union's
objection to the management clause, I am unable to
understand why it stopped short of merely "standing pat"
on its objections when it is entirely probable that adequate
provision could have been worked out to protect it and the
employees in the unit for which it had been certified. This
is particularly so in the light of the fact that Respondent
agreed to recognize UE in any new factory in
Mountainville if the work was the same. I am not
convinced that if UE had had a broader conception of its
own obligation to bargain in good faith, some mutually
acceptable management clause could not have been
worked out. This too comes within the exculpatory portion
of Section 8(d) of the Act.
The great difference of the parties with respect to the
arbitration clause was not so much whether or not there
would be such a clause but rather the insistence by the
Employer that there be woven into it (1) an authorization to
the arbitrator, upon ex parte telephone or telegram
request, in the event of a breach of the no-strike, no-
lockout clause, to issue a temporary enforcement order
which would have the effect of an interim arbitration
award , (2) a contemporaneous provision that the
enforcement award be adjudicated in New York State
courts, under New York law, and (3) another
contemporaneous provision that the Union and the
Company would not seek removal of such proceeding from
a New York State court to a United States court. At no time
in the consideration of these three items should we lose
sight of the fact that this so-called injunction provision was
limited expressly to section IX of the contract , the no-
strike, no -lockout provision , which was identical with that
which had been in the old IBEW contract . It is conceded
that various changes of the proposal were offered by the
Respondent during the negotiations . These are claimed to
be of no significance because the basic elements - ex parte
injunction and waiver of removal to the Federal courts
always remained.
The particular problem involved is well known. It has
come up in many court opinions and has been discussed in
numerous law review articles. It was considered most
recently at length in the first part of the report of the
Committee on State Labor Legislation of the Labor
Relations Section of the American Bar Association
presented at its meeting in Miami, Florida, August 10,
1965, 59 LRR 297-305. Thus, the provisions, intended to
cope with the problem , sought by the employer during the
bargaining sessions , obviously were not frivolous.
Respondent 's attorney made clear his reasons for wanting
them . His position was based on the decision of the United
States Supreme Court in Sinclair Refining Co. v. Atkins,
370 U.S. 195. The Court there held that the Federal
courts did not have jurisdiction to enjoin a strike believed
to be a breach of the no-strike clause in a collective-
bargaining agreement . It is sound professional conduct on
the part of an attorney , when confronted with a court
decision establishing a rule of law like Sinclair (or
Fibreboard , below ) to attempt , by means of contract
provisions, to provide for the resulting situation . This is
what Respondent ' s attorney did when advocating and
seeking the waiver provision with respect to removal from
a State to a Federal court.
Because of its novelty and importance , I quote the
entire clause:
(I) In the event of any claimed violation of Section
IX the Union or the Company may apply to the
Arbitrator for an order directing the violation of
Section IX to cease. Such application may be made by
telephone or telegram without notice to the other
party and without first following the procedure set
forth in (A) of this Section . The Arbitrator is
authorized to issue a temporary order directing the
Company or the Union and employees to cease the
violation of Section IX forthwith , and such temporary
order shall have the effect of an -arbitration award. In
the event the Arbitrator issues such a temporary
order he shall thereafter call a hearing on such notice
as he deems appropriate and may issue a permanent
order enjoining the violation of Section IX. In such
case, notice of the hearing may be given by telephone
or telegram . The party claiming a violation of Section
IX shall have the option, in its discretion , to submit
the question of damages in connection with the
violation of Section IX to the Arbitrator or any
appropriate court of law . In the event the Arbitrator
issues an order , whether temporary or permanent,
restraining a violation of Section IX, his order may be
enforced in the courts of the State of New York and it
is expressly agreed that neither the Company nor the
Union or any employee will seek removal of any such
proceeding in the courts of the State of New York to
the Federal Courts and they expressly waive their
right to seek such removal.
This clause is not unilateral. It applies not only to strikes
in breach of Section IX of the contract but also to lockouts
and the order whether temporary or final , could go against
either the Union or the Company.
STAR EXPANSION INDUSTRIES 583
The first problem is concerned with the temporary
order . It is clear also from its wording that there is nothing
manadatory about the issuance of a temporary order after
telephone or telegram request. Similarly, because of the
use of the words, "In the event," at the beginning of the
fourth sentence , it is clear that the arbitrator may elect not
to issue a temporary order . Moreover , there is no reason to
,assume that the arbitrator, should he decide to consider
the request for a temporary order, will not make some sort
of preliminary inquiry before issuin g it. All these
possibilities show that the wording of the clause could
have been tempered by appropriate modifications or
additional language had the Union not closed its mind to
any consideration of it. The General Counsel's concession
that the Respondent consented to some modifications of
the original clause is watered down by his characterization
that they were "insignificant ." It has long been the law
that the NLRB may not sit in judgment on the substantive
terms and conditions of a proposal. N.L.R.B. v. American
National Insurance Co., 343 U.S. 395.
Although the position of the Union and that of the
General Counsel is that a temporary return-to-work order
(the half which might be made applicable to it) is
unprecedented and unheard of, the practice or procedure
is not at all new. The evidence in the record shows that
arbitrators do issue temporary orders which have the
effect of enjoining a breach of a no-strike clause. The fact
that the practice may not have been incorporated in
writing within any particular contract is not reason for
saying that the Respondent here was in bad faith in
seeking that it so be incorporated I perceive nothing
wrong about the desire on the part of any party to have in
writing any provision that is a part of the agreement. The
Act itself contemplates a written and signed agreement
when negotiations have been completed (Section 8(d)).
This temporary order provision did not astonish me as
much as it seems to have astonished General Counsel and
counsel for the Union . Just as soon as it came up in the
hearing I informed all counsel that I would take official
notice that it had been standard policy of the National War
Labor Board to require a union to terminate a strike before
it would consider settling a dispute. Professor Nathan
Feinsinger , public member, writing for the National War
Labor Board in E.A. Laboratories, 21 War Lab. Rep., 232,
235, after noting that a strike would interfere with the
Board ' s main objective of minimizing interference with
war production , was not content to rely on that as a basis
for an interim return -to-work order , and added:
Experience has shown, moreover, that the Board
cannot give proper consideration to a labor dispute in
the atmosphere of a strike. A necessary first step in
the Board's procedure is therefore to direct that the
strike be terminated and that the strikers be restored
to their jobs with utmost dispatch. Fairness requires
that neither party obtain an advantage because of the
strike. Therefore, as a corollary to the first step, the
Board directs that the strike be terminated and
production resumed under the conditions prevailing
at the time of the strike, leaving the underlying
dispute and questions arising out of the strike for
determination after the status quo has thus been
restored. [Emphasis supplied.]
Consequently, the provision for the temporary order is
not so outrageous as to be "predictably unacceptable" to a
self-respecting labor union , thus resulting in a per se
violation of Section 8(a)(5).
Nor can I say, for the reasons about to be discussed, that
the waiver of resort to the Federal courts in the event of a
State court proceeding to enforce a return-to-work
arbitration award is similarly predictably unacceptable
and a per se violation of Section 8(a)(5).
The Supreme Court in Charles Dowd Box Co. v.
Courtney, 368 U.S. 502, in concluding its opinion in that
case, recognized that diversities and conflicts may occur
not only among the circuit courts but also among the State
courts. In the concluding footnote it stressed that it had
not yet ruled on the effect of the Norri s-LaGuardia Act
upon the jurisdiction of Federal courts in the area of
actions brought for violation by a union of its contract, the
effect of Norris-LaGuardia on the jurisdiction of State
courts and the problems concerning removal of such
actions for the State courts to the Federal courts. It did
expressly hold that Section 301(a) LMRA did not preclude
State court jurisdiction of actions authorized by that
section.
Shortly after Charles Dowd Box Co., the Supreme Court,
in Sinclair Refining Co. v. Atkinson, 370 U.S. 195, did rule,
as noted before, that Norris-LaGuardia required Federal
courts to deny enforcement of a no-strike clause coupled
with an arbitration provision by issuing an injunction
requiring termination of a strike pending resort to the
contract's grievance procedure. The reason simply was
lack of jurisdiction because of Norris-LaGuardia. It did so
despite Textile Workers Union v. Lincoln Mills, 353 U.S.
448, where it had held that Norris-LaGuardia did not
prevent a judgment compelling parties to a collective-
bargaining agreement to submit a dispute to arbitration
where the agreement itself required arbitration. It left
pregnant, however, the possibility that there might be a
distinction between an injunction barring a strike pending
arbitration and an order enforcing an arbitration award
directing a return to work. I say this because of the Court's
comments upon Brotherhood of Railroad Trainmen v.
Chicago River & Indiana Railroad Co., 353 U.S. 30. It
justified that decision by saying that in Chicago River,
arbitration by the Railroad Adjustment Board was
involved and this arbitration had been imposed statutorily
by the Railway Labor Act. It added, "And certainly no one
could contend that Section 301 (LMRA, 1947, as amended)
was intended to set up any such system of `compulsory
arbitration' as the exclusive method for settling grievances
under the Taft-Hartley Act." The Court, having cursorily
dismissed this contention, did not and has not yet decided
what its ruling would be in the case of a voluntarily
imposed arbitration clause providing for final award if the
question of enforcing a return-to-work award came before
it or the Federal courts generally. It did, however say, in
Chicago River, "The Act (Norris-LaGuardia) aimed to
correct existing abuses of the injunctive remedy in labor
disputes." The enforcement of an arbitrator's award made
in accordance with a contract does not appear to me to be
one of those abuses (and see, Local 780, Stage Employee v.
Radio Corp. of America, 380 U.S. 973, April 26, 1965,
discussed below).
The problem exists and there is some support of a view
of Section 301 as establishing that, to the extent that State
courts must follow Federal law, Norris-LaGuardia is
substantive and that State courts may not, in cases
wherein interstate commerce is involved, issue an
injunction or order enforcing an arbitrator's return-to-work
order.
There is eminent and persuasive authority to the
contrary. In the State of New York, where Respondent's
principal place of business is located, Justice Isadore
Bookstein wrote a comprehensive opinion , carefully
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reviewing the Federal and New York State authorities and
held that the New York courts have jurisdiction to enjoin
breach of a no-strike clause (Perry & Sons v. Robilotto, 39
Misc. 2d 147,240 N.Y.S. 2d 331).
The majority, in American Dredging Co. v. Local 25, etc.,
338 F.2d at 852 (C.A. 3, 1964) said:
There is nothing in the language of the (Norris-
LaGuardia) Act or its legislative history which can
possibly, within the "range of judicial inventiveness,"
or the process of judicial fashioning, be construed as
extending to the jurisdiction of state courts.
The Supreme Court of Pennsylvania, also after
reviewing carefully the Federal authorities, has held that
State courts are not precluded from issuing an injunction
restraining activities barred by a collective-bargaining
agreement. Shaw Electric Co. v. I.B.E.W., 418 Pa. 1, 208 A
2d 769. Florida also has held expressly that its State courts
have jurisdiction to enforce no-strike clauses of collective-
bargaining agreements. Again, we are favored with an
exhaustive review of the Federal authorities. Radio
Corporation of America v. Local 780, etc., 160 So. 2d 150.
While not decisive, it is important to note that the United
States Supreme Court denied certiorari here, 380 U.S. 973,
April 26, 1965. This happened also in McCarroll v. L.A.
County District Council, 49 Cal. 2d 45, cert. denied 355
U.S. 932, cited in footnote 5 of Radio Corporation, where
Minnesota, New York, Ohio, and Alabama decisions to the
same effect also are listed.
This brings us to the point of removal of such an action
or proceeding from the State court to the Federal court.
Title 28, Section 1441, U.S.C.A., imposes a primary
condition for removal, the district court must have
jurisdiction of the cause. The Sixth Circuit in Direct
Transit Lines v. Starr, 219 F.2d 89 (1952), with respect to
an action brought in the State court to restrain members of
a union from interfering in various ways with its business,
said:
... We are of the opinion that the action is not one of
which the federal district courts have original
jurisdiction, that the district court therefore had no
jurisdiction upon removal, and that the cause should
accordingly have been remanded to the Superior
Court of Grand Rapids.
In an unfair labor practice case where an injunction was
sought in the Second Circuit, that court of appeals, in
Electrical Workers v. Underwood Corp., 219 F.2d 100
(1955) (a decision in which Mr. Justice Frankfurter
participated) directed that a union's complaint be
dismissed because Norris-LaGuardia forbids Federal
courts to grant injunctions in cases involving labor
disputes, a United States court has no jurisdiction to issue
such an injunction. (That court's companion opinion, at
page 99, in which Mr. Justice Frankfurter made it a point
to note his concurrence is interesting as well on the matter
of State court jurisdiction.) The Court of Appeals for the
Third Circuit, in American Dredging, already mentioned,
when confronted with the same issue as that posed in
Atkinson, above, and after carefully analyzing it, held
expressly that where removal from the State court to the
Federal court is involved the latter, not having original
jurisdiction, may not take jurisdiction by way of removal
and then dismiss on the authority of Norris-LaGuardia. It
held that removal had been improvident in the first place
and that the employer's motion to remand to the State
court should have been granted. American Dredging Co. v.
Local 25, 338 F.2d 852 (C.A. 3,1964).
I do not agree with predictions that the Supreme Court
ultimately will rule that Norris-LaGuardia, is such a
statement of the national labor policy as to carry over to
the State courts so that their jurisdiction to enjoin a strike
or to enforce an arbitration award directing a return to
work has been preempted. The denials of certiorari in
RCA v. Local 780, and McCarroll, above, while not
decisive, may be pointing the way. The logic for continuing
jurisdiction in the State courts is set forth so well and so
much better than I could do in the cases cited that I see no
reason to prolong this Decision by repeating it here.
There is nothing in Section 301 LMRA from which it
could be inferred that Norris-LaGuardia has been
established as a national labor policy binding on State
courts. To say, as was said by the Supreme Court in
Atkinson, that Section 301 "was not intended to have any
... partially repealing effect upon such a longstanding,
carefully thought out, and highly significant part of this
country's labor legislation as the Norris-LaGuardia Act" is
not to say that, because of its silence about partial
repealer, it hereby resulted in depriving State courts of
their plenary jurisdiction merely because Congress had
taken that power away from Federal courts. It seems to me
that the rule of preemption should apply only where there
is affirmative legislation as distinguished from negative
legislation such as Norris-LaGrardia. This is certainly the
law at least until the Supreme Court settles the problem
which it recognized in footnote 8 of Charles Dowd Box
Company, supra, by referring to McCarroll v. Los Angeles
District Council of Carpenters, 49 Cal.2d 45, 315 P.2d 322,
and of which it was aware when it denied certiorari in the
State court cases mentioned above.
To summarize, we find that (1) an attempt to remove
from the State court a proceeding to enforce an
arbitrator's no-strike order undoubtedly cannot survive
and must be vulnerable to an application to remand and
(2) a New York State court , at least at this time , must be
regarded as having authority, notwithstanding Norris-
LaGuardia, to issue a judgment or order enforcing an
arbitrator's return-to-work order. This being the state of
the law, I do not regard the Employer's effort to obtain
from the Union the Federal court waiver as being bad-faith
bargaining , outrageous in any respect, or predictably
unacceptable. As a matter of fact, the contrary most
certainly is true with respect to the last. If a party does not
have the right to remove to the Federal court a State court
proceeding to enforce an arbitrator's return-to-work order,
what did the Union have to lose by agreeing to the waiver
since actually it was giving up only the delaying tactic of
removal inevitably subject to remand?
One final question about this clause in its entirety
remains. Is its nature such as to make it only a permissive
bargaining matter within the rule of N.L.R.B. v. Wooster
Division of Borg-Warner, 365 U.S. 342, and the later cases
involving surety company bonds or resort for damages to
the treasury of an International, not a party to the
contract? The law of these cases, as I understand it, is that
a mandatory subject for collective bargaining is
distinguished from a nonmandatory subject which may
require resort to persons who are not parties to the
contract. This type of nonmandatory clause is
objectionable because it injects into the relations between
a company and a union persons or entities not parties to
the contract.
The General Counsel relies on this line of cases in
arguing that the clause we have under consideration here
was a nonmadatory clause and therefore not subject to
impasse. They are not applicable either to the injunctive
provision or the waiver provision because neither injects
into the relationship of the parties, the Company and the
STAR EXPANSION INDUSTRIES 585
Union, recourse to third parties not parties to the contract.
It does no such thing. Certainly the fact that the
arbitration clause provides for an arbitrator to determine
the dispute and issue an award based upon his
determination cannot be objectionable on this ground. The
national policy favors arbitration. A no-strike clause is a
recognized bargaining clause, Lloyd A. Fry Roofing Co.,
123 NLRB 647. The engrafting into the arbitration clause
of disputes arising from the breach of the no-strike clause
is nothing new and long has been recognized. As a matter
of fact, -one might very well inquire whether, since
Teamsters v. Lucas Flour, 369 U.S. 95, there is any
necessity at all to engraft it. It is not meet for the General
Counsel or the Union to take the position that a no-strike
clause shall become meaningless merely because a
Federal court, by reason of Norris-LaGuardia, may have
no power to issue a judgment or order enforcing it.
I have been able to find only one case remotely
approaching this particular phase of the problem. It is
N.L.R.B. v. Dalton Telephone Company, 187 F.2d 811
(C.A. 5, 1951). It refers to Hill v. Florida, 325 U.S. 538,
holding that bargaining rights created by the NLRA may
not be conditioned upon compliance with State
registration law. Consequently, the court in Dalton held
that an employer's refusal to sign an agreement in
accordance with the requirement of Section 8(a)(5) of the
Act until the union registered under the Georgia Code to
make it subject to suit in the Georgia courts, properly was
found by the NLRB to be a violation of Section 8(a)(5).
There, full agreement had been reached on all the terms of
the contract. Nothing was left but to sign as required by
Section 8(a)(5), if demanded. The employer then refused to
sign unless the union complied with the Georgia Code. Of
course, no State registration statute could be used to
nullify a certification by the NLRB. Even without a
certification, a majority union could not be made helpless
by such a statute. Here, no such extraneous demand was
made by the Respondent on the Union. The most that
Respondent here could be said to have demanded from the
Union was the right to have the arbitrator's award
enforced according to recognized and established
processes without any additional or nullifying act on the
part either of the Union or of third persons not parties to
the contract.
Such additional objections as the General Counsel
offers to the wording of the clause are not persuasive
inasmuch as its wording could have been adapted to take
care of Section 502, LMRA, stoppages or unfair labor
practice strikes particularly when, in any event, the
arbitrator under the agreement would have had not only
the right but also the obligation to determine whether a
walkout actually was a violation of the no-strike clause. In
this connection, see Mastro Plastics Corp. v. N.L.R.B., 350
U.S. 270.
Upon-all the facts and circumstances, I am unable to
conclude that the Employer, by proposing and endeavoring
to have the Union agree to this clause, failed to bargain in
good faith in accordance with the mandate of Section
8(a)(5).
The subcontracting clause is another of the clauses, the
Respondent's insistence on, which is cited in further
support of the charge of bad-faith bargaining.
This clause after several modifications and additions
worked out during the course of the negotiations
ultimately emerged substantially as follows:
The right of the Company, in its discretion, to
subcontract or purchase any work or processes
(whether or not such work or processes can be or are
performed in its factory), including machinery,
equipment , parts, materials , supplies, services, and
products, is expressly recognized and the Company
shall not be required to consult or confer with the
Union before subcontracting or purchasing any such
work or processes. Actions taken by the Company
pursuant to this provision shall not be subject to
arbitration except that if the Union claims that the
Company is engaging in subcontracting or purchasing
under this clause with the purpose and effect of
causing the layoff of a substantial number of
employees in the bargaining unit, the Arbitrator is
empowered to investigate the claim. The Company
shall disclose to the Arbitrator all information he may
require in the course of his investigation but such
information shall be kept confidential and shall not be
disclosed to the Union or any other person or party.
Should the Arbitrator sustain the Union's claim, he is
authorized to direct the Company to discontinue such
subcontracting or purchasing which has such purpose
and effect. The decision of the Arbitrator shall be
final and binding.
It may be observed that it provides, when there is a
claim by the Union that subcontracting or purchasing by
the Employer under the clause has "the purpose and
effect of causing the layoff of a substantial number of
employees in the bargaining unit , the arbitrator is
empowered to investigate the claim." The arbitrator is not
limited in his investigation and he may require the
Company to disclose any information necessary for his
investigation . There is a restriction on the information to
be furnished in that the Union and every other person is
barred from access to it. Should the arbitrator decide that
the Union's claim is justified, he may order the Company
to discontinue such subcontracting or purchasing and his
decision is final and binding. The Company's reason for
desiring that the information be kept confidential is that its
volume of subcontracting always has been very great and
it does not want to have its internal business activity made
public and every subcontract negotiated with the Union so
that the Union in effect could become a party to all
dealings with contractors. The clause, despite the
restriction as to confidentiality, permits the arbitrator to
make a decision as to whether in fact the Company's
action in any particular situation has "the purpose and
effect of causing the layoff of a substantial number of
employees in the bargaining unit." If he comes to that
conclusion he may order the discontinuance of such
subcontracting.
This is precisely what the Board has done in the 1965
cases since Fibreboard. Certainly the Union has an
interest that the bargaining unit not be injured by
subcontracting. It does not follow that because the Union
has this interest, it must inject, or that there is any
necessity for injecting, itself into the Respondent's
dealings with its suppliers. Such a privilege, if accorded to
it, very well might hamper seriously the Company's
business activities and its obligations to perform its
agreements with its customers. If we consider the nature
of the subcontracing activites which Respondent was
seeking to protect, the proposed clause does not seem to
be unreasonable. (Whether we are authorized to consider
it to this extent is doubtful in view of the observation of the
court in N.L.R.B. v. American National Insurance Co., 343
U.S. 395, that the Board may not be the judge of the
substantive terms and conditions of the proposal.) The
General Counsel recognizes that ". . . for the nine months
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
period preceding the election in March 1964, the company
subcontracted from 2,000 to 2,500 separate purchase
orders, to some 68 outside suppliers of services, for the
purchase of services and products or parts of a nature
which the Company itself produces in its factories. The
total cost to the Company for this work during the period
of time indicated was a little over a half a million dollars
. (and) this subcontracting occurred during the time
when the IBEW contract was in effect, and that the
company experienced no problem with the Union in
connection with this subcontracting work."
This prior practice was under a contract with IBEW
which had no subcontracting clause. It may be assumed,
in the light of the 1965 decisions of the Board, as the
General Counsel argues, that such unilateral
subcontracting practices could well have been regarded as
legal and not in violation of Respondent 's obligation to
bargain collectively with the Union with respect to
subcontracting. This however is hindsight. That
Respondent wanted to protect itself and its established
practice at a time when the rules about subcontracting had
not been catalyzed should not be cause for saying that the
Company either insisted on a predicatably unacceptable
clause or showed bad faith by trying to have the matters
settled by agreement specifically set forth in writing. To
suggest , as does the General Counsel , that a union may not
waive the obligation for collective bargaining with respect
to subcontracting just is not a correct statement of the law.
The Board has held explicitly that a collective-bargaining
agreement may provide for a waiver by the union of the
employer's obligation to bargain with it with respect to
subcontracting. Westinghouse Electric Corporation, 150
NLRB 1574,1575.
We should not condemn the Employer's effort in 1964 to
obtain a specific contract clause governing its
subcontracting practices by pointing to the clarifying
decisions by the Board in 1965. Every one of the cases
cited by the General Counsel in the portion of his brief
criticizing this clause was decided on or after February 11,
1965. Another Decision cited by him, to the effect that the
Board found a violation because there was a "measurable
impact on unit work or unit employees ," was announced
on November 26, 1964, after 35 of the 38 collective-
bargaining meetings . The cases cited and their dates are
American Oil Company, 152 NLRB 56, April 25, 1965,
Westinghouse Electric Corp. (Mansfield Plant), 150 NLRB
1574, February 11, 1965, Allied Chemical Corp. (National
Aniline Division), 151 NLRB 1666, March 16, 1965, The
Fafnir Bearing Company, 151 NLRB 332, March 5, 1965,
Superior Coach Corporation, 151 NLRB 118, February 19,
1965.
The Respondent 's business need to engage in
subcontracting properly became a subject of great concern
to it because of the Board's decisions in Fibreboard Paper
Products Corporation, 138 NLRB 500, and Town &
Country Manufacturing Company, Inc., 136 NLRB 1022,
enfd. 316 F.2d 846 (C.A. 5). Fibreboard had been enforced
by the D.C. Circuit Court of Appeals on July 3, 1963, 322
F.2d 411, just a few months before UE was certified. The
Supreme Court did not issue its decision affirming the
circuit court until December 14, 1964, 379 U.S. 203.
During this period , commencing March 23, 1964, the
Respondent had engaged in 36 of the 38 bargaining
sessions.
It is common knowledge that there was widespread
misunderstanding of Fibreboard. Until the Board clarified
it by later decisions, many overlooked the fact that the
Supreme Court expressly had qualified it by saying:
We are thus not expanding the scope of mandatory
bargaining to hold, as we do now, that the type of
"contracting out" involved in this case-the
replacement of employees in the existing bargaining
unit with those of an independent contractor to do the
same work under similar conditions of
employment-is a statutory subject of collective
bargaining under §8(d). Our decision need not and
does not encompass other forms of "contracting out"
or "subcontracting" which arise daily in our complex
economy.
The misunderstanding was reflected even in several
decisions by experienced Trial Examiners which the
Board later saw fit to reverse. The Respondent should not
be condemned for recognizing the unsettled state of the
law and seeking to have agreement rather than later strife
by proposing this subcontracting clause which had within
it substantive elements it believed necessary to protect
practices which had been a part of its pattern of existence
during the time when it had a collective-bargaining
agreement with IBEW, a contract which had no express
provision governing subcontracting. Moreover, its
practices never approached "contracting out" as found in
Fibreboard resulting in that company ridding itself of an
entire labor force.
During the course of negotiations the Company
countered UE's proposal that subcontracting be permitted
only when no employee's job would be eliminated thereby
with the wording that the subcontracting shall not have
"the purpose and effect of causing the layoff of a
substantial number of employees in the bargaining unit.
" The Union objected to the use of the word
"substantial." The General Counsel also is critical of and
assigns as an element of bad-faith bargaining the
Company's failure to submit a proposal which would serve
to define the word "substantial." Here again we get into
substantive terms and semantics. There is a tendency to
fall into a failure to recognize that the Board itself, in
clarifying Fibreboard, recognized that there could be no
"hard and fast new rule to be mechanically applied
regardless of the situation involved" and that the
determination of whether or not, "in the absence of a
contractual waiver," an employer's unilateral conduct in
subcontracting may be excused or justified. In
Westinghouse, supra, it used words like "significant
impairment" and "demonstrable adverse impact," etc.
Again, in Allied Chemical Corp., supra, it used the words,
"subcontracting had no significant impact." Also in that
case it said it could not find a "substantial" increase of
subcontracting. Inasmuch as the question whether the
purpose and effect of any layoff "of a substantial number
of employees in the bargaining unit" was a matter for
decision by the arbitrator, in the light of the Board's own
clarifying decisions, the word "substantial" does not seem
to be so indefinite as to make it objectionable per se. The
arbitrator, who was to be supplied with all the information,
was not restricted in his power to make a determination
whether the subcontracting resulted in a "substantial"
impairment, and his decision was to be final and binding.
There is objection also that, while the clause authorized
the arbitrator to order the Company to discontinue
particular subcontracting or purchasing, it failed to
provide for an additional remedy to make whole any
employees hurt by it . I am not convinced that it should be
so interpreted . I believe that it was implicit in the powers
given to the arbitrator to direct not only a cessation but
also a remedy. Counsel for the Union says that the
ambiguity was noted but that relief was rejected by
STAR EXPANSION INDUSTRIES 587
Respondent. I must reject this contention because, if it did
happen, the record shows only an aborted stab at it with
both the Union and General Counsel accepting the
Examiner's ruling to strike. In any event, I am of the
opinion that ultimate agreement on the clarification of the
arbitrator's power was not foreclosed, particularly in view
of the negotiations with respect to two alternate proposals
by the Union. One of these could have resulted in a
complete contracting out of all of Respondent's operations
provided that the subcontractors adopted and assumed the
contract ultimately to be negotiated between UE and
Respondent. This I believe, at the risk of falling into the
error of evaluating the substantive elements of a proposal,
would have been predicatably unacceptable to any
employer because its subcontracting rights would have
been dependent on its becoming either a UE missionary to,
or UE organizer of, plants with which it sought to contract.
In addition, while it resulted in this benefit to UE, it could
have been catastrophic for Star's employees because, like
in Fibreboard above, every Star employee could have lost
his job by reason of complete "contracting-out" to other
UE shops.
The Union later submitted another clause brought into
the record by oral testimony. It was clearly ambiguous
both as to whether it would result in the loss by some
employees of their jobs and as to what might have been
meant by the words, "shall not be used to impair the
representative status of the Union...." There was a short
exchange in which the Union's negotiator is quoted as
having said some people might lose their jobs, to which
Respondent's attorney agreed, followed by mutual
agreement that there was still disagreement on the
management clause. Both parties appear to have had great
difficulty not only in coming to any agreement but also in
framing any language in the first place. This could indicate
that if they had worked a little harder on the language and
been less at odds on form and novelty, a mutually
agreeable clause could have been negotiated. It is not,
however, our function to write the contract for the parties.
There is great emphasis on repeated insistence by
Respondent's attorney that various matters in controversy
had to be "resolved" before a full agreement was reached.
This word "resolve" has in it no connotation of finality or
suggestion of condition precedent that any proposal to
which it was directed had to be accepted in the precise
form submitted. On the contrary, reference to a dictionary
in common use, Webster's Seventh New Collegiate
Dictionary, discloses that such language is the expression
of a position that controversy with respect to any proposal
is subject to clarification, additional negotiation, and
ultimate agreement before a total contract is completed.
For the same reason , the objections to the Respondent's
utilization of language like "settlement of issues" etc.
indicates only a seeking for ultimate agreement. This very
interpretation of the word was brought out during cross-
examination . This is the objective of Section 8(a)(5) and the
objective of all negotiations looking to the making of a
contract. For this the Respondent should not be
condemned but commended.
Not only do I find that Respondent's subcontracting
proposal was not so repugnant as to be predictably
unacceptable but I find affirmatively that it was a proper
subject for collective bargaining , that it was consistent
with legitimate business objectives, and that it was not so
arbitrarily worded as not to be susceptible of being
composed ultimately into a clause quite agreeable to a
union sincerely intent upon working out a collective-
bargaining agreement . There is no reasonable basis for
pointing to any of this as evidence of had faith on the part
of the Respondent.
The foregoing are the major specific items, with one
exception and apart from overall conduct and particular
matters treated elsewhere in this Decision, which are
alleged to be evidence of the Respondent's bad-faith
bargaining. The Employer's specification of March 11,
1965, as the proposed termination date for any contract to
be signed remains. This date coincides with the end of the
certification year for UE. It came up for the first time at
the 20th negotiating meeting, held June 29, 1964,
when the Respondent stated its complete position on the
entire contract, clause by clause. This was the third
meeting following the commencement of the strike. The
Respondent gave as its reason for setting that date its
belief that UE no longer represented the majority of its
employees in the bargaining unit. The facts show that this
assertion was justified. The strike had been in effect since
June 2. During that time the Employer had replaced 1 tool-
and-die maker, 14 mechanics, 3 turret lathe operators, 7
mill machine operators, 8 diecasters, 7 production
inspectors, 3 forklift operators, 3 storage and handling
workers, 7 laborers, 1 porter, and 46 production workers, a
total of 100 employees. These, added to either the 177
(claimed by the Union) or the 192 (claimed by the
Respondent) employees who did not go out on strike,
result in a total easily more than half of the unit
employees, who were not supporting the strike and a
fortiori were opposed to UE. The strike collapsed on
August 28,1964.
This matter of considering the termination date of any
contract in relation to the termination of the certification
year can be looked at in more ways than one. A frequent
view, as evidenced by the General Counsel's argument
here and the cases upon which he relies is that a demand
for such simulataneous termination is evidence that an
antiunion employer is anxious to test the certification at
the earliest possible time. Another view may be that a
union, particularly when it is losing or has lost the support
of the employees, may be deliberately uncooperative in
negotiations and stall them by arbitrary demands or stand-
pat positions in the hope that it will obtain a contract for at
least a year following the date when agreement is reached
and thus prolong its life as certified bargaining agent. On
the basis of all the evidence here I would be inclined to
lean toward the latter in my appraisal of this factor
involving contract termination date rather than conclude
that this Employer's objective was solely to test the
Union's majority at the earliest possible time with a view to
ridding itself of it. In any event, the record is quite clear
and I find that the Respondent did have reasonable cause
for believing that the Union no longer represented a
majority of the employees in the bargaining unit.
In the wrap-up portion of his brief, the General Counsel,
in an admirable manner, sets forth what appears to be a
powerful thrust demonstrative of "other company conduct
particularly noteworthy as contributing toward overall bad
faith." He is to be commended for a brilliant summation
because he has done as well as anyone possibly could with
the materials available to him for supporting the position.
There would be good reason for finding bad-faith
bargaining if the facts in this case actually were, in their
overall content, like those in cases such as American
Aggregate Company, 125 NLRB 909; N.L.R.B. v Herman
Sausage Co., Inc., 275 F.2d 229; Fitzgerald Mills
Corporation, 133 NLRB 877; "M" System, Inc., 129
NLRB 527; N.L.R.B. v. Reed & Prince Manufacturing
Company, 205 F.2d 131; Jacobs Manufacturing Co., 138
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NLRB 35; Mathieson Chemical Corporation, 114 NLRB
486; Fetzer Television, Inc., 131 NLRB 821; Cummer-
Graham Co., 122 NLRB 1044; Capitol Aviation, Inc., 152
NLRB 745; and Berger Polishing, Inc., 147 NLRB 21. I am
constrained to say , although arriving at conclusion
opposite to his, what the Trial Examiner in Jacobs
Manufacturing Co., said "My conclusion with respect to
the Respondent's fundamental attitude is a broad one and
rests on all of the record."
In this wrap-up portion of the General Counsel's brief
comment is made on numerous matters which, in
substance , involve repetition of argument considered
elsewhere in this Decision . It is proper for counsel to
stress those portions of the record which support his
position . It may be noted , also, that the oral testimony of
the union representatives (particularly the remarkably and
completely memorized testimony of Bloch), to which
reference is made so frequently , quite naturally was
confined mostly to those phases of the bargaining
negotiations which they believed supported their case.
The result is that the argument , to the extent that it is
based on this testimony and to the selective references to
the notes taken by Respondent 's personnel manager,
ignores completely the Union's conduct which also must
be evaluated in the determination of a good -faith question.
Moreover, and this is definitely not said with any thought of
criticizing the General Counsel , isolated quotations from
the personnel manager 's notes necessarily are insulated
from other portions of those same notes which may explain
and justify the statements quoted.
The Employer 's principal representative at the
negotiating meeting, as noted above , was the attorney who
tried the case on its behalf . Both he and the attorney for
the Union , although they did not testify, actually were on
trial before me during the hearing . The Union 's attorney
allowed the General Counsel to present the case fully and
only occasionally did he take an active part . To the extent
that he participated he did so always in a constructive and
proper manner . Respondent 's attorney , however,
conducted every bit of the trial on its behalf. Although he
did not testify, he was on trial every minute of the 26 days
of actual hearing , both on the record and off. I had ample
opportunity to observe his conduct and his methods of
defense and attack . The transcript shows affirmatively at
many places not only his retiring nature but also his
consistent courtesies to opposing counsel , to all the
witnesses , and to me. (The same is to be said about both
the General Counsel and the Union's attorney.) An
attorney does not, of course, win cases by such conduct
during the hearing . This is expected of him. It
nevertheless is important because it must ineluctably
leave its impression with me. I consider it for the single
purpose of trying to recreate in my mind what happened at
the bargaining table. Having so considered it, I say
unqualifiedly that I just cannot believe that Respondent's
attorney ever acted in an arbitrary or bad -faith manner in
any of the negotiating sessions . This is further reason for
my ultimate conclusion that there was no bad-faith
bargaining on the part of the Respondent.
I have observed above that , as an advocate , the General
Counsel quite properly relied on those elements in the
record which supported most strongly the charges and that
he was influenced in this respect by the necessarily biased
testimony of the union representatives which stressed only
those views of the bargaining sessions which supported
their position , only incidentally mentioned other matters,
and completely disregarded such of their own conduct as
might have redounded to their disadvantage.
I shall attempt briefly and not exhaustively to relate
some plus factors, apart from the legal considerations
which justify Respondent ' s contract proposals, as are
indicia of its good faith.
Eleven days after the certification the first meeting was
held. Bulletin board privileges promptly were granted, a
grievance procedure was established, and payroll and
seniority information was furnished. Within 3 weeks union
stewards were appointed and the Company consented to
an installation ceremony for them at the plant . At the third
meeting, the Respondent agreed to 11 proposals made by
the Union. At meetings held in April it agreed to extend
from 6 months to 1 year recall rights for employees on sick
leave and to extend recognition to the Union in any new
factory it might build in the city where its present factory
is located if that factory engaged in the same line of work.
It was after these very concessions that without notice,
the Union called the short strike in April. After the
termination of this strike, the Company made an offer of 3
days' bereavement pay in the event of a death in an
employee's immediate family and it proposed a modified
but perhaps more attractive call-in pay clause. In
accordance with its promise at that meeting , it offered
wage increases in varying amounts and manners at the
next meeting . At the May 19 meeting , it offered an
improved provision for the submission of grievances by
tripling the time previously proposed. Also at that meeting,
it agreed to allow UE seven stewards whereas IBEW had
had only six. At the May 28 meeting , its previous proposal
with respect to time periods in the grievance procedure
was liberalized . At the May 29 meeting , it agreed that
employees be given the right to move from one shift to
another and, following further agreement by the Company
to additional suggestions made by the Union, complete
agreement on this clause was attained . As of June 29, the
Respondent made clear that it was willing, at any time, to
make a contract based on its last proposal . Despite the fact
that no contract had been consummated , the Respondent
agreed , with the Union' s concurrence , on November 9, to
make effective the wage increase it had offered. The
increase was made retroactive to June 2, 1964. This wage
increase it should be noted was on top of a wage structure
characterized by the conciliator as high not only for
Mountainville but also for New York City. All this was in
addition to the fact that the door always was left open to
modify or amplify the contract clauses forming the major
bones of contention.
I have indicated from time to time that the personnel
manager 's notes of the meeting , General Council's
Exhibit 36, present a fairly complete and apparently
reliable account of the negotiations . To attempt to review
them here in any great detail would lengthen
unnecessarily this Decision and also would impose upon
me the same handicap suffered by the General Counsel
when pointing to isolated and unrelated remarks therein
set forth without presenting the associated material
tending to explain and rationalize quoted portions. That is
better left to the advocates.
In conclusion , after my reading of those notes in their
entirety and considering their content along with all the
oral testimony, the documentary evidence, and the actual
events which transpired during the negotiations, it is my
finding and conclusion that the Respondent , as required
by Section 8(a)(5) of the Act, did bargain collectively with
the Union and did satisfy, to the extent possible under the
circumstances with which it was confronted both within
and external to the negotiations , all its obilgations as
provided in Section 8(d) of the Act.
STAR EXPANSION INDUSTRIES 589
G. The Failure to Reinstate Radzikowski and Drake
Radzikowski had been involved in a picket line incident
during a walkout in April 1964 before the big strike. He
was arrested and charged with assault and destruction of
property. After the return to work from the April walkout,
the Respondent reinstated him subject to the outcome of
the criminal charges. The criminal charges are still
pending and undetermined.
He struck with the other employees on June 2, 1964, but
on June 29, he presented himself to the personnel manager
and asked whether he could return to work. On the
following day he was told that he would not be rehired. No
replacement had been hired for him. The Respondent's
reason for not rehiring him is that the Company wanted
the charges against him cleared up before deciding to take
him back. It seems perfectly clear to me that having
allowed Radzikowski to return to work following the first
walkout, the permanence of such return to be resolved
ultimately at the time of the disposition of the criminal
charges, the Respondent's change of position after the
June 2 strike, when Radzikowski's criminal case was in
the same posture as it had been before, is clearly a
punitive action for his having gone out on strike on June 2.
The reversal of position is a reversal which can be
connected only to the fact that he again had gone out on
strike. It is not different from the waiver concept
enunciated by the Board in Quality Limestone Products,
Inc., 153 NLRB 1009, 1011.
My resolution of this situation solely as a matter of law
and not as an issue of fact is complicated slightly by
Radzikowski's own admission that when he came back to
the plant on June 29 he already had obtained another job
and had come back for the purpose of getting his tools. I
am unable however to say that, having obtained another
job, he did not make a bona fide and sincere offer to return
to work on the 29th. There are too many possibilities (for
example, preference to work for Star, possibly greater pay,
possibly more pleasant working conditions, possibly better
transportation from or near to his home, etc.) which could
have been reason for him to drop the other job and accept
reinstatement with Star. Consequently, I interpret
Radzikowski's offer to return to work as a sincere, bona
fide, and unconditional offer.
Having concluded that the Respondent's reversal of
position with respect to Radzikowski's eligibility for
reinstatement is attributable only to the fact that he
participated in the June 2 strike, the charge of
discrimination as to him must be sustained and for that
reason he should be offered reemployment, be reinstated
in the usual fashion, and the controlling date as to him
should be June 29, 1964.
Charles Drake is another employee whose denial of
reinstatement is claimed to be justified because of
misconduct. There are two citations of misconduct. One is
concerned with alleged misconduct during the April
walkout. He was resinstated following that walkout.
Consequently, as far as that is concerned, the situation is
the same as the Radzikowski situation and the same result
follows. The other citation is based on alleged name calling
and indelicate language addressed to a supervisor when he
drove through the picket line. This incident, in my opinion,
giving it most critical consideration, is insufficient to
justify a refusal to reinstate.
This does not, however, result in a reinstatement order
because, not like in the case of Radzikowski, he had been
replaced before his offer to return . The issue however, had
to be decided because of the unfair labor practice
contention in this case. Since I am holding that there was
no unfair labor practice strike and that it was an economic
strike both in its beginning and throughout, no remedial
action can be directed on behalf of Drake.
H. The Failures to Resinstate Blanchard, Secor, and
Brown
The less said about these the better. These three
employees (treated as a group by the General Counsel and
frequently linked together in the testimony) were denied
reinstatement for alleged misconduct both on and off the
picket line. (Consideration is being given to their situation
despite the fact that replacements had been hired for them
for the same reason that Drake's case was considered.)
The Respondent called a number of female witnesses to
testify about this misconduct. Every one of these
witnesses impressed me as being ladylike, well-mannered,
gentle, refined, and creditable. They testified as to
numerous remarks made by these three persons,
frequently as a triumvirate acting in unison. Apart from
racial slurs, the usual epithets such as scab, rat, and fink,
and one false accusation of larceny, several testified,
obviously with a great deal of difficulty and distaste, to
some of the vilest and most profane remarks and
aspersions that I have ever heard during my unsheltered
life, as having been made by Blanchard, Secor, and
Brown. My normal reaction to allegations of this nature
would be to disbelieve them because it is most difficult for
me to believe that any woman would make such remarks,
particularly in public. The testimony that they did make
the remarks was given by witnesses who as I have said
impressed me most favorably and I accord to them all
credibility. On the other hand, the string of categorical
denials by Blanchard, Secor, and Brown of almost every
remark attributed to them presents only a hollow ring to
me to say nothing of Secor's misleading testimony about
having been invited to return to work after the strike. I
ascribe no importance whatever to the fact that none of the
complaining witnesses had written the filthy language in
any written report to management. I would have been
astonished if they had put such words in writing. The
remarks made, by their very nature, were conducive to
causing serious breaches of the peace. It is surprising
indeed that extreme violence did not transpire. Employees
are not protected "in using insulting and profane language
calculated and intended to publicly humiliate and degrade
employees who are attempting to work in an effort to
prevent them from working." N.L.R.B. v. Longview
Furniture Company, 206 F.2d 274 . It is hardly an argument
in support of an assertion that the remarks were not made
to point to the fact that police officers testified that they
did not hear them and that no arrests were made. These
individuals would have had to be even worse than they
were and in addition would have had to be most rash to
engage in such conduct in the presence of police officers.
Further, I regard as irrelevant the fact that, at the time it
made its decision, the Respondent was not aware of some
of the misconduct proven. Such additional misconduct as
came to light at a later time demonstrates only that
Respondent's decision on the basis of such information as
it then had available was not a wrong decision. The law is
clear that an employer is not protected if it develops later
that his decision to discharge was based on erroneous
information . Burnup & Sims, Inc., 379 U.S. 21. It should
not be different if it develops later that the decision was
right because of cumulative reasons not known to him at
the time.
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Finally, although these strikers had been replaced, even
if the strike were held to be an unfair labor practice strike,
I regard the misconduct here as beyond the balancing
possibilities under H.N. Thayer Company, 115 NLRB
1591. The reinstatement of these individuals under any
conditions would be wholly incompatible with peaceful
normal labor relations in this establishment.
It is my finding and conclusion that the discharges of
these three employees would have been and were fully
justified , and that the Respondent was right in denying
reinstatement.
1. The Failure to Reinstate Sal Sansone
Sal Sansone presents a problem different from those
involving Radzikowski and Drake and not as shocking as
that involving Blanchard, Secor, and Brown. He, too, was
a replaced employee and he is being considered for the
same reason that Drake, Blanchard, Secor, and Brown
were considered. He is a retired New York City policeman
and testified in a calm and dispassionate manner.
Whatever experience he might have obtained in testifying
during his service as a policeman obviously stood him in
good stead at this hearing. During the short time in which I
had occasion to observe him I concluded that, in the
absence of some definitely inexcusable misconduct, there
would be nothing about him which would warrant an
employer to rid itself of his services. For this reason I
approach my consideration of Respondent's failure to
reinstate him with the feeling that the odds were in his
favor for reinstatement and that, if reinstatement was
denied to him, the Employer must have considered very
carefully the charges against him and not have taken
precipitous or petulant action in deciding not to reinstate
him.
The personnel manager gave as his reason for refusal to
reinstate the fact that during the strike Sansone and his
brother-in-law caused one of the working employees to be
discharged from a part-time job that this employee had at a
gasoline service station. This employee lost that job
because Sansone and his brother-in-law, on several
occasions , told the gas station operator that the employee
had to be discharged because Sansone and his friends
would not only boycott the station but also would publicize
their complaint against its owner. A second reason for
refusing reinstatement was Sansone's visit to the home of
an employee and his admonition to the boy's mother that if
she did not want to see her son hurt that she should get
him to quit his job at Star. The boy quit a few days later.
Two other incidents were given for denial of
reinstatement , ( 1) name-calling and yelling at employees
who were waiting at a pick-up place to get a ride to come to
work which resulted in a warning to Sansone by the police
constable and (2) the utterance of profanities at female
employees as they were driving through the picket line.
Respondent was unable to produce the boy's mother to
whom Sansone is alleged to have made the threatening
remark about the possibility of injury to her son. It had
issued a subpena to her but her absence was excused on
the certificate of her physician giving reasons why it would
be unwise for her to testify.
In his testimony Sansone admitted enough to support
the conclusion that all the incidents did occur. The only
questions for me to decide are (1) how much of his version
of the gas station incident should be believed and whether,
in its totality, this conduct justified failure to reinstate and
(2) whether, during the other incidents, Sansone went as
far as it was alleged he did go in the remarks made. Most
of Sansone's objectionable conduct was off and away from
the picket line. Obviously, this creates a distinction
because it means that Sansone went out of his way to do
what he did.
Sansone claims that on only one occasion, with no one
else present, he spoke to the owner of the gas station and
informed him of the strike, that the working employee was
also working at the station one day a week, that the
working employee was "scabbing" and that, if the gas
station owner did not stop his part-time employee from
working, Sansone would stop buying gas. Sansone admits
that the part-time employee was discharged by the owner.
Putting together both Sansone's version and the personnel
manager 's hearsay testimony based on contemporaneous
information received by him at the time when he made his
decision, I have concluded that Sansone's conduct was not
protected activity during the strike. On the contrary it was
a deliberate interference with the employment of the gas
station 's part-time operator and clearly within the classic
rule of Lumley v. Gye, El. & Bl. 216, 118 Eng. Rep. 749
(QB 1853) and Hornstein v. Podwitz, 254 New York 443.
This malicious and tortious interference with contract
should not be condoned. While not within the express
wording of Sections 8(b)(4) and 303(a) of the Act, it is
clearly within the spirit of these sections.
Sansone admits he visited the mother of the boy who
was working and remonstrated with her about his working
at Star. He says it was a friendly visit and he merely
pointed out to her that her boy was working at Star while
he and other employees were out on strike. He says she
told him that she was "hard up for money" and that the
boy needed "a job and he went to work there." Here again
we must synthesize his version with the personnel
manager 's hearsay testimony based on the contemporary
information available to him at the time he made his
decision. I do not believe that the visit was as friendly or as
short as that related by Sansone. It is quite likely that he
took advantage of his friendly relationship with the mother
by intimating that the boy might be hurt if he continued
working. If he did not so intimate , why did the boy quit so
quickly considering the family's need for money?
Sansone admits also having called two persons,
probably brothers, working at the plant "scab" and "rat"
but he denies having used profanity. He admits also having
accosted femal workers in an unincorporated village or
area near the plant and having called them "scabs" and
"rats" and that the police constable spoke to him after
their complaint. Again he denied the use of more
scurrilous remarks or profanity. I am not disposed to
credit his limited versions of the remarks made to the
brothers when they crossed the picket line or of the
remarks made to employees in areas removed from the
plant.
It is my conclusion that the denial of reinstatement to
Sansone was justified and that it should be sustained,
apart from the fact that a replacement for him had been
hired. This would have been my decision even if the strike
had been an unfair labor practice strike.
J. The Reinstatement of Returning Strikers
In view of my conclusions with respect to Respondent's
good-faith bargaining during the negotiations with UE and
my ultimate conclusion that there had been no bad-faith
bargaining, the claim that the June, July, and August
strike was an unfair labor practice strike is not sustained.
Nor did it become such by events during the strike.
Consequently there can be no blanket order directing the'
STAR EXPANSION INDUSTRIES
reinstatement of the mass of 136 returning strikers set
forth in schedule A of the complaint.
As far as Radzikowski is concerned , he is to be
reinstated in the manner provided in the section of this
Decision concerned with him. Although, in paragraph 20 of
the complaint , the paragraph in which reference to
Radzikowski is made, there is included also, one David
Coleman, he was reinstated and we need not be concerned
with him.
During the 22d session of the hearing it was stipulated
"that in the event that there is an adjudication that the
strike which commenced on June 2nd, 1964, was not an
unfair labor practice strike but on the contrary, was an
economic strike, claims under Section 8(a)(3) of the Act, of
alleged discrimination in reemployment of strikers ... are
being made only as respects" 40 of the original 136
employees listed - in the schedule attached to the
complaint . Among these 40 are included Catherine Brown
and Radzikowski , treated elsewhere in this Decision. The
remaining employees are easily divided into skills, porter
and production workers. The skills were George
Radzikowski-tool-and-die maker , three mechanics-first
class William Lamont , Robert Cram, and Herbert Sorton,
James Nicholson-mechanic second class, for screw-
machine turret lathe operators -Edwards Elejalde, Eward
Dombrowski, and Frank Evans ; a male machine
operator-Fred Matthews, porter-Gussie Ryerson, thus
leaving 29 production workers, reduced to 28 because of
the elimination of Catherine Brown . Fifty-three production
employees were hired during the period beginning
August 3 and ending August 27. Then, beginning
August 5, 1964, and ending August 28, 1964, 21 production
employees were terminated . Thus, at the time the strike
ended the Respondent had working for it a net of 32
production employees who had been hired as
replacements during the strike. Since only 28 production
employees, exclusive of Catherine Brown , or 29 including
her, remain on schedule A, the production employees for
whom reinstatement is claimed , no jobs were available for
them.
Skilled and name job employees were hired between
August 3 and 28 as follows: one first-class mechanic
August 26, 1964, two second-class mechanics August 4
and 6 , 1964, three screw- machine turret lathe operators
August 10 and 12, 1964, one male machine operator
August 26, 1964, and a porter August 10, 1964. Since two
first-class mechanics were terminated, one on August 6
and one on August 10, 1964, apart from Sorton there were
openings for Lamont and Cram . It appears that both
reported for work on August 31, 1964, and were rehired in
that classification at the same rate of pay.
One second-class mechanic was terminated on
August 26, 1964, leaving open one job in that
classification . Although Respondent interprets this as
being a net addition of one second-class mechanic I am
unable to find an explanation for this conclusion and
therefore hold that the second-class mechanic's job
vacated by Porcaro on August 26, 1964, should have been
filled at that time by James Nicholson. However the
evidence shows that he failed to report for work in
accordance with the recall and the personnel record in
evidence has on it , "No reply." For that reason I am
unable to direct reinstatement for him . Between August 10
and 12, 1964, three screw- machine turret lathe operators
were hired and there is no record of termination in this
classification . Thus one screw -machine turret lathe
operator job was available . Dombrowski , Buchta, and
591
Evans, having been hired originally in 1963, were junior to
Elejaldi, who had been hired originally in 1961, and so
Elejaldi alone was entitled to this position . According to
the employment record, he reported for work on
September 9, 1964, and was rehired in that job at the rate
of pay which he had received before the strike. Since only
one male machine operator had been hired during the
strike and three had been terminated a job was available
for Fred Matthews. According to the personnel record, he
reported for work on September 1, 1964, and was rehired
at the rate of pay he recrived prior to the strike.
A porter having been hired on August 10 and not having
been terminated , no job was available for Gussie Ryerson.
The General Counsel makes a broadside attack on the
method followed for determining whether striking
employees had been replaced. He describes the method as
"shifting" and contends there were in fact, no actual
replacements because particular strikers were not
identified by particular persons hired in their places. I do
not agree . The Respondent had no personalized positions.
The positions were identified by particular skills or under
the general term , "production workers." This is an
accepted and conventional job description system and
generally preferred by labor unions because the seniority
basis for layoffs, promotions , etc., is best preserved
thereby. I overrule this contention.
On the basis of the foregoing I am unable to make any
finding that any striking employee (except Radzikowski
treated elsewhere) was denied reinstatement after the
strike because he had participated in it . Except for those
employees who, it appears affirmatively , were rehired
when they reported for work, Respondent did hire
replacements for those remaining in the scheduled list, as
amended during the hearing.
In summary the only unfair labor practice charges
which I am able to sustain are those involving the failure to
reinstate Radzikowski and the denial of vacation pay to
employees who went out on strike. With respect to
vacation pay, paragraph 19 of the complaint was amended
during the trial so that 8 additional names were added
to the 136 name schedule attached to the complaint. It was
stipulated further, during the hearing , that it would be
unnecessary, in the event the decision went against the
Respondent with respect to vacation pay, to set forth in
detail the names of employees so entitled . It was agreed
that a blanket or general ruling would be adequate.
H. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The Respondent' s unfair labor practices, to the extent
found, having occurred in connection with its operations
described above, have a close , intimate , and substantial
relation to trade, traffic, and commerce among the several
States, and could lead to labor disputes burdening and
obstructing commerce.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact and upon
the entire record in this case , I make the following
conclusions of law:
1. Star Expansion Industries Corporation, a Delaware
corporation , is, and at all times herein involved has been,
an employer within the meaning of Section 2(2) of the Act.
2. United Electrical, Radio & Machine Workers of
America and International Brotherhood of Electrical
Workers Local 1968, AFL-CIO, are, and at all times
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
material herein were, labor organizations within the
meaning of Section 2(5) of theAct.
3. The arbitration of the discharge of Albert Dinges,
although held before an arbitrator mutually agreeable to
the Respondent and Local 1968 of International
Brotherhood of Electrical Workers, AFL-CIO, did not
afford to Dinges due process of law and the National Labor
Relations Board is warranted in disregarding the resulting
award and exercising its authority under Section 10(c) of
the Act.
4. That portion of the complaint which alleges that
Albert Dinges was discharged and thereafter denied
reinstatement because he engaged in lawful , protected
activities in his duties as shop steward for IBEW has not
been supported by a preponderance of the credible and
probative evidence submitted at the hearing herein and
consequently the same should be dismissed.
5. That portion of the complaint which alleges that the
Respondent interrogated unlawfully its employees
concerning their membership activities in and sympathy
for UE and threatened them with closing of the plant,
discharge , and other reprisals if they remained or became
members of UE or gave any help or assistance to it is not
supported by a preponderance of the credible and
probative evidence and should be dismissed.
6. That portion of the complaint which alleges that the
Respondent , by its supervisors and agents acting on its
behalf, caused to be circulated among its employees
petitions objecting to proposals made by UE in collective-
bargaining negotiations conducted with Respondent in
April, May, and June 1964, and threatened employees with
discharge and other reprisals in order to induce them to
sign such petitions and coercively interrogated employees
as to whether they had signed such petitions , all with the
object to undermine UE's status as collective -bargaining
agent and its position as bargaining agent with the
Respondent has not been sustained by a preponderance of
the credible and probative evidence and should be
dismissed.
7. The efforts of the Respondent to obtain , during the
course of negotiations, contract provisions such as or
substantially like those contained in its proposals relating
to arbitration , management rights, subcontracting, and
temporary injunctive power for the arbitrator and
restriction of adjudication of any award by him to the
courts of the State of New York were good -faith efforts
reasonably grounded on the state of the law as it then
existed and as it continues to exist today and I find that
they were reasonably related to the requirements of its
business activities and the interests of its employees.
8. Respondent ' s objection to the demand by United
Electrical , Radio & Machine Workers of America for
union shop, agency shop , and checkoff was not
unreasonable in the light of the fact that it had genuine and
reasonably based beliefs that a very large percentage of
employees in the unit , in the beginning , and more than half
of its employees later , were opposed to UE. For the same
reason , Respondent 's ultimate insistence that the
termination date of any contract to be executed by the
Respondent and the Union be coincidental with the
termination of the certification year was reasonable.
9. The actions of the Respondent, during the collective-
bargaining negotiations , which have been alleged as
constituting bad-faith bargaining, all were reasonable and
justified and it is my conclusion that the Respondent did
engage in good -faith bargaining as required by Sections
8(a)(5) and 8 (d) of the Act.
10. Respondent failed to grant vacation pay to those of
its employees who had engaged in the June, July, and
August strike whether or not they returned to work after
the termination of the vacation period which had begun
July 17, 1965, and, by so denying such vacation pay on the
ground that they had participated in the strike , it engaged
in an unfair labor practice within the meaning of Section
8(a)(1) and (3) of the Act.
11. Although in so denying vacation pay to striking
employees Respondent did thereby discriminate against
them in their terms and conditions of employment which
tended to discourage membership in the Union and did
interfere with them in the exercise of rights guaranteed to
them in Section 7, it took that position because of its good
faith but erroneous interpretation of its contract with
International Brotherhood of Electrical Workers
Local 1968 , AFL-CIO, which position it had maintained
for a long time prior to the time when vacation pay became
payable and throughout its negotiations with the United
Electrical , Radio & Machine Workers of America. Its
sincere and bona fide belief that it was correct in this
interpretation of the contract , although erroneous, is
sufficient to justify a conclusion that this should not be
regarded as an element in the determination of whether
there was in fact good -faith bargaining by it with United
Electrical , Radio & Machine Workers of America, and I so
conclude.
12. Respondent did not refuse to bargain collectively
with the representative of its employees and did not
engage in unfair labor practices within the meaning of
Section 8 (a)(5).
13. The strike called by UE on June 2, 1964, was an
economic strike and was not caused or prolonged by any
unfair labor practice committed by Respondent.
14. Respondent's discharges of or refusals to reinstate
Sal Sansone , Catherine Brown , Rose Secor , and Veronica
Blanchard were justified by reason of the fact that said
persons committed unprotected acts of misconduct during
the strike and further , if such employees had been
considered eligible for reemployment they would not have
been so entitled by reason of the fact that they had been
replaced at the time of their offer to return to work.
15. George Radzikowski was and Charles Drake might
have been entitled to reinstatement when they offered to
return to work and, by denying reinstatement to
Radzikowski because of his conduct during the April 1964
strike, Respondent engaged in an unfair labor practice
within the meaning of Section 8(a)(1) and (3) of the Act but,
since a valid replacement for Drake had been hired before
his offer to return to work , Respondent did not act unfairly
in denying reinstatement to him.
16. To the extent that George Radzikowski was denied
reinstatement and that all striking employees were denied
vacation pay Respondent has interfered with and
restrained them in the exercise of rights guaranteed to
them by Section 7 of the Act and has violated Section
8(a)(1) and (3) of the Act.
17. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act. May Department Stores,
d/b/a Famous -Barr Company v. N.L.R.B., 326 U .S. 376;
Bethlehem Steel Company v. N.L.R.B., 120 F.2d 641.
THE REMEDY
The unfair labor practices , to the extent found, are
violative of Section 8(a)(1) and (3) of the Act.
STAR EXPANSION INDUSTRIES 593
Consequently, the Respondent should be directed to cease
and desist therefrom and take affirmative action designed
to effectuate the policies of the Act.
Having found that Respondent has denied
reemployment discriminatorily to George Radzikowski
(Charles Drake having been replaced during the strike)
Respondent should be directed to offer him immediate and
full reinstatement to his former or a substantially
equivalent position and make him whole for any loss of
earnings and benefits he may have suffered thereby,
restoring him to all benefits from which he has been
deprived; and paying to him a sum of money equal to the
amount of wages which he would have earned from
June 29, 1964, the date when he offered to return to work
to the date of the offer of reinstatement, together with
interest at the rate of 6 percent per annum and that the
loss of pay and interest be computed in accordance with
the formulas and methods prescribed by the Board in F.W.
Woolworth Company, 90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716.
Respondent should be directed also to pay to all
employees who earned vacation credits the monetary
equivalent of vacations to which they became entitled,
together with interest from July 17, 1964, excepting
however, only those employees who actually were
discharged or quit prior to June 2, 1964.
Under all the facts and circumstances of this case, I am
unable to infer from Respondent's totality of conduct that
it maintains an attitude of opposition to the purposes of the
Act with respect to the protection of employees in general.
For that reason I am of the opinion that there is no
necessity that there be a general provision in the order that
Respondent should cease and desist from infringing in any
manner upon the rights guaranteed in Section 7 of the Act:
Nevertheless, the denial of reinstatement to Radzikowski
(and Drake apart from the fact that a replacement for him
had been hired) may be regarded as tending to deter
employees from engaging in protected activities, and for
that reason, provision will be made in the order against
such conduct. The same is true for vacations.
The order will provide also that Respondent, upon
request, shall make available to the Board or its agents, for
inspection and reproduction, all books and records
necessary or helpful for the purpose of determining the
identity of the employees to whom vacation pay is due as
herein provided as well as for the computation of the
amount thereof and also for the purpose of determining the
amount to be paid to George Radzikowski.