Tex-Tuft Products, Inc.

National Labor Relations Board - Board Decisions

Dec 27, 1961

134 N.L.R.B. 1628 (N.L.R.B. 1961)

1628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
let ... would be passed out in front of John Geer's store , among other places."
This was clearly an unlawful threat; and (5) Respondents ' request of the San
Francisco Labor Council, to aid them in their campaign to compel the sponsors to
withdraw their advertisements from KXTV by asking their members to return their
Shell Oil Company credit card and by asking the members of their affiliated unions
to do the same because Shell is a major source of income to KXTV.
The Trial Examiner has carefully considered the various defenses of Respondents
and finds each to be without merit or substance.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in section III, above , occurring in con-
nection with the business operations of the companies described in section I, above,
have a close, intimate , and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead - to labor disputes burdening and obstructing
commerce and the free flow thereof.
V. THE REMEDY
Having found that Respondents have engaged in certain unfair labor practices,
the Trial Examiner shall recommend that they cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
- Upon the basis of the foregoing findings of fact, and upon the entire record in
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Respondents are labor organizations within the meaning of Section 2(5) of
the Act.
2. Great Western Broadcasting Corporation, d/b/a KXTV, is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
3. Geer, Capitol, Rainbo, Shell, and Burgermeister are engaged in commerce or
in an industry affecting commerce.
4. By threatening , restraining, or coercing a person in an industry affecting com-
merce with an object of forcing him to cease doing business with another person,
Respondents have engaged in an unfair labor practice within the meaning of Section
8(b) (4) (ii) (B) of the Act.
5. The aforesaid unfair labor practice is an unfair labor practice affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Tex-Tuft Products , Inc. and Textile Workers Union of America,
AFL-CIO-CLC. Case No. 10-CA-4730. December 27, 1961
DECISION AND ORDER
On September 13, 1961, Trial Examiner Sidney Sherman issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint herein be dis-
missed , as set forth in the Intermediate Report attached hereto.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report and supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Rodgers and Fanning].
134 NLRB No. 160.
TEX-TUFT PRODUCTS, INC. 1629
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and brief, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
[The Board dismissed the complaint.]
INTERMEDIATE REPORT
This case was heard before Sidney Sherman , the duly designated Trial Examiner
in Rome, Georgia, on August 15, 1961 , upon a complaint filed by the General
Counsel and an answer by Tex-Tuft Products , Inc., hereinafter called the Respondent.
The issue litigated was whether the Respondent had violated Section 8 ( a)(1) of
the Act by refusing to rehire certain alleged economic strikers. Briefs were filed
by the General Counsel and the Respondent after the hearing.
Upon the entire record , and from my observation of the witnesses , I adopt the
following: .
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent , a Georgia corporation , is engaged at Rome , Georgia, in the
manufacture and sale of textile products . During 1960 , the Respondent shipped to
out-of-State customers products valued at more than $50 ,000. I find that the Re-
spondent is engaged in commerce and that it will effectuate the policies of the Act
to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Textile Workers Union of America , AFL-CIO, CLC, hereinafter called the Union,
is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint , as amended at the hearing , alleges that the Respondent until
June 5 , 1961 ,1 refused 'to reemploy -37 named strikers , notwithstanding that they had
applied unconditionally for reinstatement on June 3, 'and that the Respondent thereby
violated Section 8(a) (1) of ,the Act. The Respondent's defense is primarily that
there was no strike at its plant but a mass resignation and that any,refusal to rehire
the individuals involved was therefore not unlawful.
It is undisputed that on Friday , June 2,.-the 37 individuals named, in the amended
complaint ( hereinafter called the claimants ) were , with one exception,' employed
by the Respondent . It is also undisputed that 'about noon on that day, Respondent
posted a notice on the plant bulletin board stating that there would be no vacation
pay in 1961 ,3 that about 12:30 p . m., after reading this notice , all the claimants
ceased work , and that they sat at their work stations without performing any work
until 1 or 1: 30 p.m . During this interval Plant Superintendent Davis 'and Respond-
ent's president , Lumiere, approached the 'group and suggested that they designate
a committee to meet with management and discuss their grievance . The group se-
lected two of their number who conferred with Davis and Lumiere , but without
reaching any agreement . About 1 or 1:30 p .m., the immediate supervisor of the
employees involved directed them .to return to work or punch out. Those who had
not already punched out did so. About the same time Davis approached the group
All dates hereinafter relate to 1961 , unless otherwise noted.
2 The one exception was J. B. Garland ( or Garlin ) whose status as an employee of the
Respondent was the subject of litigation before the Board in a representation case which
was still pending at the time of the hearing herein. In view of Respondent ' s offer at the
hearing to make adequate restitution to Garland (all that was involved was a claim of
backpay for 24 hours ), and as no cogent objection thereto was made at the hearing,
I granted Respondent 's motion to dismiss as to Garland , without, however , passing on
the merits of his claim.
,$ The record Indicates that in previous years the employees had received 5 days' paid
vacation.
1630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and asked them what they had decided to do. Two or three of them announced
that they were "going to quit" 4 and asked to Abe "paid up in full." Thereupon Davis
asked the entire group to write their names on a pad of paper in order to obtain
their paychecks. After they did so, they left the building and waited outside for
about 2 hours while their checks were prepared.
During this interval about 10 of the claimants crossed the street to the Union's
office.5 and made arrangements with a union representative to meet there the next
day with Botelho, the Union's vice president.
About 2:30 or 3 p.m., the same day, these 10 employees rejoined the rest of the
claimants at the entrance to the plant building. Thereafter the entire group picketed
outside the plant until 4 p.m., when the second shift (comprising 15 to 20 employees)
reported for work. As they arrived at the plant, the claimants induced them not
to enter the plant, and they joined the pickets. About 4:30 p.m., Davis emerged
from the plant with the claimants' paychecks and announced that if any of them
wished to return to work they should so advise him before the following Monday
morning, otherwise they would be replaced.6 Davis then handed out the checks.
Most of the claimants received two checks-one for the week ending May 26 and
another for the week ending June 2. The first check was the only one that they
would normally have received, as they were normally paid each Friday for the week
ending the preceding Friday. The second check-for the current week-would not
normally have been given them on June 2 unless they had quit or been discharged.
Moreover, this second check did not contain the usual deduction for the employees'
Christmas savings fund. Cantrell, the Respondent's payroll clerk, testified, and I
find , that she prepared these checks pursuant to Davis' instructions after he in-
formed her that certain employees had "quit." The record shows also that on
June 5 , separation notices were sent to the claimants , as required by State law,
stating that they had "quit," and that about the same time Respondent made ar-
rangements with its insurance carrier to terminate the claimants' group coverage.
About 2 p.m., the next day, June 3 , all the claimants attended the meeting at the
union office , which had been previously arranged, and were advised by Botelho to
elect a committee to represent the group in requesting reinstatement. Lanham,
Duvall, Shirey, and Dowdy were elected to such a committee and a list was prepared
containing the names of all the claimants beneath a caption stating in effect that
the "undersigned" had selected the foregoing four individuals to represent them in
requesting reinstatement to their jobs. The committee then proceeded to the
Respondent 's plant and presented the foregoing list to Davis (who was in his office
that day, although the plant was not in operation ). Davis rejected the application,
asserting,- according to Lanham, that the claimants had "already been replaced."
Davis' version was that he stated merely that they were "being replaced," and that
he based this on the fact that he and two other representatives of management were
then in the process of hiring replacements, and that Davis had himself already hired
four or five replacements . (Ultimately 12 replacements in all were hired by 7:30
a.m. the following Monday, when operations resumed.) I credit Lanham?
' This finding is based on Davis' testimony, which was not controverted Lanham's
testimony on this point is confused and contradictory, and the most that can be gleaned
therefrom, in any event, is a denial that he, himself, announced any intention to quit
6 There is no evidence that any of the claimants had had any prior contact with the
Union.
6 The foregoing finding as to Davis' announcement is based on Lanham's testimony on
direct examination. Under cross-examination Lanham testified that Davis stated flatly
that he would keep the claimants' jobs "open" until Monday morning. Davis' version
was that he merely told the claimants to contact him before Monday morning about re-
employment but did not promise to rehire them He did not deny that he warned the
employees that they would be replaced if they did not contact him. As such a statement
was reasonably calculated to convey the impression that the claimants would not be re-
placed if they applied before Monday morning, I do not deem it necessary to determine
whether Davis in addition promised to keep their jobs open.
7 Lanham's testimony was at times evasive and inconsistent However, the parties
stipulated that three other claimants (Dowdy, Shirey, and Duvall), if called as witnesses,
would testify in substance to the same effect as Lanham with regard to any incident in
which they participated together with Lanham. It affirmatively appears that one of these
three, Dowdy, was still employed by the Respondent at the time of the hearing (Lanham
was not so employed.) The other two were rehired by the Respondent on June 8, as
related below, but the record is silent as to their employment status at the time of the
hearing In any event, in view, of the foregoing stipulation, I am constrained to credit
Lanham's testimony concerning"any incident covered thereby, including Davis' statement
to the employee committee on June 3 as reported in the text above.
TEX-TUFT PRODUCTS, INC. 1631
Upon being thus rebuffed , the committee returned to the Union 's office, where the
claimants decided that they should all apply individually to Davis for work. Davis
admitted them to his office in groups of two or three but gave them the same answer
as he had given the committee-namely, that they were "being replaced" (accord-
ing to Davis ) or that they had already been replaced ( according to Lanham, as
corroborated by Dowdy, Shirey , and Duvall ).8 For reasons already stated , I credit
Lanham's version.
The following Monday, at 6 a.m., the claimants , acting on the advice of Botelho,
began to picket the plant. According to Lanham , about 10 o'clock that morning,
Davis and Lumiere approached the pickets and offered to rehire all those claimants
who had not already been replaced . The claimants rejected this offer, insisting that
the Respondent rehire all or none. Davis placed the time of this incident at 8 a.m.
However, here again I am constrained to credit Lanham.9
On June 8, the claimants received from the Respondent a letter offering reinstate-
ment , and all of them were rehired that day.
The General Counsel concedes that the initial offer of June 5 to rehire all the
unreplaced claimants was a valid offer of reinstatement , and tolled Respondent's
liability for backpay. Backpay is therefore claimed only from 7:30 a.m. to .10 a.m.,
on June 5.
The Respondent 's defense is that ( 1) the claimants did not strike, but quit, and
that such quitting was not the kind of concerted activity which is prohibited by the
Act,10 and (2 ) in any event, the claimants at no time offered unconditionally to
return to work.
As to ( 1), this contention raises the issues ( a) whether the claimants quit or
struck, and (b) if they quit , whether such action , though concerted , was protected.
Resolution of these issues involves a number of vexing questions of fact and law.
I am satisfied that , whatever the claimants may have intended , either as a group, or
individually , the Respondent believed in good faith that they had quit, as is
demonstrated by the various fiscal and administrative actions taken by the Respond-
ent, as related above. I find further that such belief was induced by certain state-
ments and conduct of the claimants . Whether such a belief, so induced , constitutes
an adequate defense here is a question as to which there seems to be little, if any
authority . However , I do not deem it necessary to resolve this or other questions
presented by the Respondent's first contention , as I find , for reasons set forth
below , that Respondent 's second contention is supported by the record and con-
stitutes an adequate defense.
Even if it be assumed that the claimants were strikers, it is well settled that where,
as here , economic strikers seek reinstatement , the employer is required to rehire only
those who have not already been permanently replaced , and need not rehire even the
unreplaced strikers if they condition their application on the reinstatement of those
who have been replaced . The record shows, and I find , that by the time the claim-
ants first applied for rehire on June 3 , Davis had already replaced four or five
strikers . 11 Lanham testified in effect that from 2 p in. on June 3 12 (i.e ., just before
the employee committee met with Davis ) • until June 8 it was the position of the
claimants that all must be 'rehired or none, that this position was communicated
to Davis at the meeting on June 3 between him and the employee committee, and
8 See preceding footnote
9 See footnote 7 above. Dowdy was called as a witness and testified on this point in
substantial agreement with Lanham . His demeanor impressed me favorably In an
attempt to establish Davis' veracity on this point , Respondent ' s counsel recalled him after
Dowdy had testified , and elicited testimony that Davis had met with Respondent ' s counsel
at 11 a.m the morning in question, at Atlanta , Georgia, about 2 hours ' driving time from
Rome However , it is not clear how this uncorroborated testimony by Davis enhances his
own credibility
10 See Crescent Wharf and Warehouse Company and its successor, West Coast Terminals
Co, Inc , 104 NLRB 860 , 861-862
11 While 2 other management representatives were at the same time recruiting replace-
ments , and ultimately 12 in all were hired before operations resumed on.June 5, there is
no evidence as to how many , in addition to the 4 or 5 recruited by Davis, were hired before
the claimants applied on June 3. However , by conceding the validity of Respondent's
offer on June 5 to rehire all the claimants who had not yet been replaced , the General
Counsel has impliedly acknowledged that all such replacements as had been hired prior to
June 5 were valid, permanent replacements . Moreover , as to the permanency of the re-
placements , the record shows that all the replacements were still in Respondent ' s employ
at the time of the instant hearing, except for some who had voluntarily quit
12 At first Lanham gave this date as June 2 . However, lie promptly modified this
testimony
1632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was reiterated on June 5 to Davis and Lumiere when they offered to hire all un-
replaced strikers . Consistently with this testimony , Davis asserted that he under-
stood that the committee 's application on June 3 and the later individual applications
constituted a request that all or none be rehired. Moreover, it was stipulated at the
hearing that the Respondent did rehire prior to June 5 two employees who joined in
the "stoppage" of June 2 but did not associate themselves with the group or indi-
vidual applications on June 3.13 I am persuaded by the foregoing circumstances,
as well as by the fact that the Respondent a few hours after work resumed on
June 5 offered to rehire all those claimants who had not yet been replaced, that
Respondent on June 3 would have accepted the applications of those claimants who
had not yet been replaced 14 but for its understanding that they were conditioned,
as in fact they were, on reinstatement of all the claimants. Respondent was not re-
quired to accept the foregoing condition, but was privileged by reason of such condi-
tion to reject the applications in toto. I find therefore that such rejection did not
violate the Act, and will recommend dismissal of the complaint.
[Recommendations omitted from publication.]
13 One, Holcomb , applied for rehire in the evening of June 2, and the other , Dennis,.
applied on June 4.
14 As it did those of Holcomb and Dennis . See preceding footnote.
United Aircraft Corporation , Pratt & Whitney Aircraft Divi-
sion and District Lodge #91, Lodge 1746, International Asso-
ciation of Machinists , AFL-CIO. Case No. 1-CA-3351. Decem-
ber 27, 1961
DECISION AND ORDER
On June 9, 1961, Trial Examiner Robert E. Mullin issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and is engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Intermediate Report and the excep-
tions and brief, and finds merit in the Respondent's exceptions. The.
Board therefore adopts the Trial Examiner's findings and conclu-
sions only to the extent consistent herewith.'
1On November 20, 1961, the Board received an undated motion from the Charging
Party requesting oral argument and requesting that the Board strike the Respondent's
defense, upon which the Trial Examiner relied, that the Respondent' s ban did not occur
in the context of other unfair labor practices . The motion requested the Board to take
official notice of Cases Nos . 1-CA-3355, 1-CA-3357, 1-CA-3358, 1-.CA-3359, 1-CA-3372,
1-CA-3396, 1-CA-3430, 1-CA-3434, 1-CA-3435, 1-CA-3528, 1-CA-3532, and 1-CA-3571..
The charges in these cases , some of which were filed prior to the hearing in the instant
case, allege generally ( 1) a discriminatory delay in recalling "loyal" strikers , and (2) a
discriminatory refusal to reinstate and recall some "loyal " strikers after January 1, 1961.
In this connection , the Board , on November 15, 1961, denied Respondent 's -motion to revoke
certain precomplaint subpenas duces tecum issued September 16, 1961, and Respondent's
subsequent motion for reconsideration . The Charging Party urges that the Respondent's
refusal to comply therewith is relevant to its defense herein. However, as it appears that
134 NLRB No. 153.