Titan Metal Manufacturing Co.

National Labor Relations Board - Board Decisions

Jan 12, 1962

135 N.L.R.B. 196 (N.L.R.B. 1962)

196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees and all supervisors defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9(b) of the Act.
2. NMU has been at all times since February 8, 1960 , the exclusive representative
of all employees in the aforesaid unit for the purposes of collective bargaining within
the meaning of Section 9(a).
3. By refusing to bargain with NMU since November 16, 1960 , Respondent has
engaged in and is engaging in unfair labor practices proscribed by Section 8(a)(5)
and (1) .
4. By interfering with the administration of the Association and by contributing
financial or other support to it, Respondent has, since November 16, 1960, engaged
in and is engaging in unfair labor practices proscribed by Section 8(a)(2) and (1).
5. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
[Recommendations omitted from publication.]
Titan Metal Manufacturing Co. and United Steelworkers of
America, AFL-CIO; United Steelworkers of America, AFL-
CIO, Local 5649. Case No. 20-CA-1969. January 1 2, 1962
DECISION AND ORDER
On September 21,1961, Trial Examiner James R. Hemingway issued
his Intermediate Report in the above-entitled proceeding, finding
that Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that Respondent cease and desist
therefrom and take certain affirmative action, as set forth in the
Intermediate Report attached hereto. The Trial Examiner also rec-
ommended that all other allegations of the complaint be dismissed.
Thereafter, the Charging Party filed exceptions i to the Intermediate
Report and a supporting brief. The Respondent filed a reply brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Fanning].
. The Board has reviewed the Trial Examiner's rulings and finds that
no prejudicial error was committed. The rulings are hereby affirmed.
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner.2
ORDER
The Board adopts the Recommended Order of the Trial Examiner
with the modification of provision 2 (d) to read : "Notify said Regional
i Subsequent to the filing of its exceptions , the Charging Party requested permission to
withdraw its exceptions insofar as they relate to the Trial Examiner's dismissal of the
Section 8 ( a) (5) allegation of the complaint . The request is granted.
' Member Rodgers finds it unnecessary to a consideration of this case to decide whether
an economic striker once permanently replaced has a right to reinstatement if at the time
of application for reinstatement his replacement is no longer employed by the Employer.
Accordingly. he would not adopt the Trial Examiner's comments in this regard
135 NLRB No. 22.
TITAN METAL MANUFACTURING CO . 197
Director, in writing, within 10 days from the date of this Order, what
steps the Respondent has taken to comply herewith." 3
9 The notice attached to the Intermediate Report marked "Appendix" is modified and
appended to our Decision and Order . In the event that this Order is enforced by a decree
of a United States Court of Appeals , there shall be substituted for the words "Pursuant
to a Decision and Order" the words "Pursuant to a Decree of the United States Court of
Appeals, Enforcing an Order."
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 make whole James Douglas for any loss he may have
suffered by reason of the delay in offering him reinstatement to
the position he occupied before the strike in the manner recom-
mended by the said Trial Examiner.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the right to
self-organization, to form labor organizations, to join or assist
United Steelworkers of America, AFL-CIO, and United Steel-
workers of America, AFL-CIO, Local 5649, or any other labor
organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protec-
tion; 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,
in conformity with Section 8(a) (3) of the Act.
All our employees are free to become or to remain members of the
above-named Unions or any other labor organization. We will not
discriminate in regard to hire or tenure of employment. or any term
or condition of employment against any employee because of mem-
bership in or activity on behalf of any labor organization.
TITAN METAL MANUFACTURING CO.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge and two amended charges filed by the United Steelworkers of
America, AFL-CIO, and Local 5649 thereof, herein indiscriminately called the
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union, a complaint was duly issued against Titan Metal Manufacturing Co., herein
called the Respondent, on March 21, 1961, and an amendment thereto was issued on
April 6, 1961, alleging that the Respondent had committed unfair labor practices
within the meaning of Section 8(a) (1), (3), and (5) of the Act.
The gist of the complaint is that: While the Respondent's employees were out on
an economic strike, commencing on October 1, 1960, the Respondent on November
14, December 5 and 20, 1960, discharged certain strikers; the economic strike was,
converted into an unfair labor practice strike on November 14, 1960, because of
the discharge of striking employees John Prado and Earl Cook, or alternatively on
dates of subsequent discharges of strikers; the Respondent on various dates solicited
striking employees to return to work; the said strike was abandoned on February 9,
1961; on February 10, 1961, the Respondent failed and refused to reinstate employees
who had been on strike until certain dates between February 20 and March 3, 1961,
failed and refused to return three named employees at any date, gave some returning
strikers more arduous and less agreeable tasks, less desirable work shifts, and de-
creased rates of pay, and denied seniority based on prestrike service to those who
had engaged in the strike. The complaint further alleged that the Respondent on
March 1, 1961, had failed and refused to bargain with the Union although requested
by the Union (alleged to be the majority representative) on that and subsequent
dates to do so.
The Respondent's answer, duly filed, admitted that the strike was economic in
its inception and admitted the several discharges in November and December, but
denied the cause alleged and denied all other unfair labor practices, admitted that
the Union had been the majority representative on December 5, 1957, admitted the
refusal to bargain on March 1, 1961, but denied that the Union was then the majority
representative.
Pursuant to notice, a hearing was held in San Francisco, California, from May 9'
to 22, 1961, before the duly designated Trial Examiner. Time was set for the filing
of briefs, which time was later extended to July 31, 1961. In due time the General
Counsel, the Respondent, and the Union filed briefs with the Trial Examiner.
From my observation of the witnesses and their demeanor on the witness stand
and upon the entire record in the case, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Pennsylvania corporation, with places of business at Bellefonte,
Pennsylvania; Indianapolis, Indiana; and Newark, California, is engaged in the
business of the manufacture and distribution of brass and bronze rod wire and forg-
ings. The Newark plant is the only one here involved. During the year 1960, the
Respondent manufactured, sold, and shipped from its Newark, California, plant
products valued in excess of $50,000 to points outside the State of California.
During the same period, the Respondent purchased materials valued in excess of
$50,000 directly from points outside the State of California.' No issue of juris-
diction is raised.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting to membership employees of the
Respondent. The Respondent's answer denies that the Union is a labor organization,
but there is ample evidence to establish that it is, including the fact that the Respond-
ent had engaged in negotiations with the Union for a collective-bargaining agree-
ment, and, were it not evidenced in this case, the Trial Examiner could take official
notice from other Board decisions of the nature of the Union as a labor organization
within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
1. Background
All the allegations of unfair labor practices committed by the Respondent are
based on acts occurring in connection with a strike which began at the Respondent's
Newark plant on October 1, 1960. Before that date, the Union had been, since
1957, the recognized collective-bargaining representative for the Respondent's em-
'These findings as to the Respondent's business are based principally on the allega-
tions of the complaint, admitted In the answer.
TITAN METAL MANUFACTURING CO. 1991,
ployees in an appropriate unit. Having a collective-bargaining agreement which
expired on October 1, 1960, the Union and the Respondent, before that expiration
date, had been negotiating for a new contract upon different terms. When no agree-
ment was reached by October 1, a strike was called. The strike was, therefore, an
economic strike at its inception. It is contended by the General Counsel that each
of the alleged unfair labor practices occurring during the strike converted the strike
from an economic strike to an unfair labor practice strike.
2. Solicitation of strikers to abandon the strike
The first allegation of unfair labor practices alleged to have converted the strike
into an unfair labor practice strike on November 14, 1960, was solicitation of "vari-
ous" employees on October 4, 6, 20, 26, and 31. The first four dates are those on
which the Respondent wrote letters to its employees. The evidence indicates, how-
ever, that these letters were written, not to various, but to all striking employees.
October 31 was the date of a telegram sent by the Respondent to all striking
employees.
a. The written communications
Under date of October 4, 1960, William W. Sieg, president of the Respondent,
wrote a letter from Bellefonte, Pennsylvania, addressed to Western Division em-
ployees, in which he deplored the second strike in the short business life of the,
Respondent on the west coast as compared to only 1 in 45 years at Bellefonte.
Naming the issue as "money," he gave the economic reasons for building the plant
in California, denied a rumor that the Respondent would move its operations back
East, and stated that the Respondent was paying rates equal to or better than others
in the area and considerably better than Respondent's rates in the East. He said
that competition was difficult to meet and that the Respondent was "at a crossroads."
He concluded by saying that J. M. Golden (the Respondent's vice president in charge
of the Newark, California, plant) and John Cantwell (the Respondent's labor rela-
tions consultant) had the Respondent's backing and that there was no plan to send
additional help from the East for future bargaining. He closed by saying, "Our-
position is sincere, our future on the West Coast is in your hands."
On October 6, 1960, Golden sent a letter to Respondent's employees (addressed,
"Dear Titan Employee") to set forth an explanation of its proposal (in bargaining-
with the Union) of a reclassification of jobs which would result in higher rates for
many of the jobs in the old classification but lower rates for others. He assured'
the employees that this would not mean a loss of pay for a present employee whose
job would carry a new lower rate, that the rate of old employees would be red
circled and would remain the same even if they were transferred and were later
returned to their present job and even if they were laid off and returned to the job-
later. A list of the proposed classifications and rates was attached. Golden's letter
then mentioned the low level of business nationally and the necessity of not increas-
ing costs.
On October 20, 1960, Golden wrote another letter to the employees to inform
them of its bargaining proposals made to the Union, first, to extend the old contract
for another year and then to make a contract similar in most respects but with
important differences in others. A copy of this proposed contract with such dif-
ferences was attached, and the letter pointed out the paragraphs in which there were
changes. It then enumerated other terms agreed on with the Union or offered by
the Respondent. Golden concluded his letter with the statement: "No doubt this
still does not answer some of your questions; but, again, we will be glad to discuss
them with your Union representatives."
The last letter written by Golden, that of October 26, unlike the other letters,
was addressed personally, i.e., with a personal salutation, to each striking employee.
These letters were all the same except for the job classification and rate mentioned
in the letter which was stated for the employee addressed. Since this letter and the
telegram of October 31, 1960, constitute the principal basis for the General Counsel's
contention of unlawful solicitation, they are quoted here in full:
Mr. T. E. HAYHURST,
3356 Clifton Court,
Irvington, California.
DEAR Tommy: Again I write to you and your family about a very real prob-
lem that faces us all.
As we explained to your representatives in negotiating meetings-as we ex-
plained to you in our letters-the low level of business nationally and the tough
domestic and foreign competition that we face means that we simply cannot
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
go beyond our last offer . It is our sincere and considered opinion that this is
all the traffic will bear-to go any higher can only result in lost customers, lost
sales, less production, and fewer jobs.
From August 1 to October 1, the negotiating period for a new contract, we
met with your representatives six times, once in August and five times in
September. At our last meeting on September 30, your representatives gave
us a final package demand which we estimate will cost us in excess of 130 per
man hour, a cost which we cannot absorb and a cost which we cannot pass on
to our customers. Your representatives have not lowered this demand nor
have they requested any meetings since September 30. We have been willing,
and are willing, to meet with your representatives to discuss anything that you
think might help settle this strike; but business conditions will not permit us
to exceed the economic cost of our last offer.
Thus, it appears that things are at a standstill ; and the question facing us all
is, "Where do we go from here?"
One possible result of this, of course, could be a long strike . But I think you
and your family will agree that the losses already suffered by every one of us
make a long strike unthinkable.
We think another and better solution is for us all to get back to work so that
your regular income may be restored promptly before your loss becomes too
big. We sincerely want each and every Titan employee back on the payroll.
You are scheduled to report for work at 8 a.m. on Tuesday, November 1.
When you report for work on Tuesday, your job classification will be Block
Man. Your rate of pay will be $2.10 per hour, incentive base, which will be
an increase of 5¢ per hour for you. Shift differential will be the same as it
was, to be added to the above, when applicable.
Your health and welfare plan insurance, with coverage for you and your
dependents, will continue as in the past.
All of the, above is in accordance with our final offer to your representatives,
as explained to you in my letter of October 6.
You will receive 480 per hour bonus for each hour you work until Novem-
ber 20.
You will receive 570 per hour bonus for each hour you work from Novem-
ber 21 to December 18.
If you are unable to report for work on Tuesday, please contact J. E. Moore,
at our personnel office, or G. J. Miller, Plant Superintendent, to advise when
you will be able to report for work.
You will recall my letter of October 7 stated that your health and welfare
insurance coverage would be carried at company expense until November 1.
After November 1, this coverage will be continued only for those employees
who have returned to work or who have made arrangements to return to work.
Believe me, we have been proud of our Titan team, and we have absolutely
no desire to replace any employee. But-the plant just must get back into
production. So to be completely honest with you, we must report that the law
gives a company the right to permanently replace an economic striker. We do
not want to do that. We want you to have your regular job back again-to
rejoin our team!
Thank you for giving this your very serious consideration.
Yours very truly,
TITAN METAL MFG. COMPANY DIVISION,
(S) J M Golden,
J. M. GOLDEN,
Vice President-Western Division.
JMG:eo
No explanation was offered at the hearing for the bonus for each hour worked
between certain dates, as mentioned in the letter. It cannot be ascertained, there-
fore, whether this bonus was promised as an inducement to strikers to abandon
the strike, whether it refers to an incentive pay bonus, or whether it is an extension,
modification, or increase of some other bonus previously given as an established
practice. Since the new classification of blockman is shown as an incentive-pay job,
the bonus mentioned may very well refer to the average incentive rate for the em-
ployees. Where an innocent meaning is possible, it is incumbent on the General
Counsel, if he contends that the meaning is not innocent, to offer proof of his con-
tention. A's-he has failed to do so, I find no promise of special benefit to abandon
the strike. Since the Respondent had already offered to the Union the new classifi-
cations and rates, it was at liberty to institute such changes unilaterally after rejec-
TITAN METAL MANUFACTURING CO. 201
tion by the Union? The incentive rate quoted to Hayhurst (addressee of the letter)
is the same as that shown in the new schedule and the new rate was in fact 5 cents
higher than his former rate. Anyone going on that job after the new rates were
initiated would receive the higher rate. It was not, therefore, an offer of special
inducement to Hayhurst alone, as a striker, to abandon the strike.
The final communication alleged to be solicitation of individual strikers was a
telegram sent on Monday, October 31, 1960, over Golden's signature, to each strik-
ing employee. This telegram read:
You are expected on the job tomorrow at 8 a.m. Under the Taft-Hartley
Law, no man can be fired from his job except for failure to pay his normal
monthly dues where a contract requires union membership. He cannot be fired
for failure to pay fines, and he cannot be legally blocked from employment
anywhere else. You, therefore, have the law's protection to make the decision
- to come to work. If the Union or the conciliator asks for a meeting, the
Company will not refuse to meet. However, the Company's economic offer
that you already have gotten is as high as we can go this year; and it is pointless
to call new meetings just to see if the Company will increase its economic offer.
As stated in my letter of October 26, we do not want to replace any Titan
employees; but the law gives as that right, and we will do so, if such is necessary
to resume production.
If the General Counsel has made an analysis of this correspondence which shows
how it constitutes interference, restraint, and coercion, as alleged in the complaint,
he has not presented it either during the hearing or in his brief. Nor does the Union
argue the matter in its brief. With the one exception noted above (hourly bonus
for work done between certain dates), none of the letters contains anything that
could be construed as a promise of benefit which had not already been offered in
negotiations with the Union, and that one exception may have followed as a conse-
quence of the terms offered the Union. The only threat of detriment appears in
the Respondent's statement about replacement. Since that statement was merely an
explanation of the legal consequences resulting from replacement of economic
strikers, that is not a threat constituting a violation of Section 8(a)( I) of the Act s
The statements made in Golden's telegram likewise carry no threat or offer of benefit.
The fact that Golden explained, at all, the legal rights and immunities of those who
might abandon the strike finds an explanation in the next related incident.
b. Oral solicitation
Although the complaint alleges that on various unknown dates in October and
November 1960, the Respondent by certain officers, agents, and representatives
(naming two) solicited various striking employees to return to work, the evidence
offered by the General Counsel was limited to one instance involving one employee.
This occurred on Saturday, October 29, 1960. On that day, striking employee
Virgil Edwards arrived alone early in the morning for picket duty. Superintendent
George Miller, who had been doing guard duty from midnight on, came to Edwards'
car, asked if he was cold, and if he would like a cup of coffee. Edwards accepted
the offer and went into the guard shack which adjoins the main building. Miller
made coffee and while they drank it Miller told Edwards about the products which,
the Respondent made and how the dies were designed. Among other things, the
Respondent made bookends and letter openers which it used to give as souvenirs.
Each new employee was given one. Miller asked if Edwards had ever received
one. Edwards said he had not, and Miller gave him a letter opener. Edwards com-
mented that he was in arrears in his rent and would like to come back to work but
was afraid to cross the picket line. According to Miller, Edwards said that he was
afraid the Union would blackball him and fine him and that be feared physical
harm. Miller expressed his opinion that the Union could not legally blackball
Edwards and that a fine would not affect his employment status but suggested to
Edwards that if he had questions, he could ask Golden after he arrived.
When Golden arrived at the plant after 8 a.m., Miller told him that Edwards
wanted to talk to him. Golden went to Edwards' car. Edwards told Golden that
he wanted to talk to Golden about returning to work on November 1 (the date set
for the plant's reopening in Golden's October 26 letter to the employees). Edwards.
asked Golden whether he would suffer a union fine if he came back across the
picket line and if a fine would affect his job. Golden answered that he had no
2 Mission Manufacturing Company, 128 NLRB 275
' The Texas Company, 93 NLRB 1358; McLean-Arkansas Lumber Company, 109 NLRB
1022; Economy Stores, Incorporated, 120 NLRB 1.
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
knowledge of the Union 's bylaws or policy , that before the strike the Respondent
had collected only dues, and that he knew of no law that required a discharge for
failure to pay a fine. Edwards asked what the situation would be if the Union
blackballed him. Golden said that he would not have to discharge Edwards for
that, but he said that he was not versed in the law and that, if Edwards wanted to
know, he should call the Board. Edwards asked where it was and Golden took
him into the guard shack and looked up the address and telephone number of the
Board 's Regional Office. Edwards asked permission to call Richard Winter , presi-
dent of the Union , to see if he wanted to ask questions and would come in to talk
with Golden . Golden gave him permission to telephone and said that he would talk
with any striker about anything except negotiable items. Golden stepped out of
the room while Edwards talked with Winter. The latter refused to speak with
Golden except over the negotiating table.
Edwards returned to the guard shack and encountered James Moore, the Re-
spondent's office manager. Edwards told Moore that he wanted very much to
return to work, that if the strike continued much longer he was afraid that under
his current financial condition he would be unable to stand it. Moore told Edwards
that, if he was afraid to cross the picket line, the Respondent would see that he
arrived safely, that he would drive Edwards in his car. Edwards said that he had
never crossed a picket line but might have to. He then returned to his car.
Because Edwards himself raised the subject of his return and because the Re-
spondent offered him no special inducement to return , I find no solicitation of any
strikers nor any attempt by the Respondent to undermine the Union 's bargaining
position 4
B. Discouragement of union membership by discriminating in regard to hire and
tenure of employment
1. Discharge of strikers for misconduct
a. Events of November 11, 1960
For want of employees , the Respondent did not go back into production on
November 1, 1960, as it had stated it would in its letter of October 26. Thereafter,
however, it began to seek replacements for the strikers, and on Friday, November 11,
1960, it began production with two new employees, Leo Rial and Norman Johnson.
That day, contrary to their usual parking practices, the pickets turned their parked
automobiles around on the street in front of the plant so as to face in the direction
-in which anyone leaving the Respondent 's plant would have to go.5 When the shift
ended that day, the new employees drove out in their respective cars. Johnson,
.accompanied by a foreman, left first and was followed by Robinson , a staff repre-
sentative of the Union, in his car, accompanied by several identified strikers. As
Rial, accompanied by Foreman William Holt, drove out, strikers John Prado and
Earl Cook, in Prado's car, pulled out behind Rial and followed him northeastward
,on Mowry Avenue. For a distance of perhaps a mile from the plant Mowry is a
two-lane, two-way road; but north of the Nimitz Freeway (running from Oakland
-to San Jose) Mowry becomes a divided highway of two lanes in each direction.
When Rial reached this point, Prado accelerated his car and came alongside of
Rial's car. Cook shouted to Rial to stop and made motions with his hands. Holt
-did not hear what Cook said but surmised that Cook was trying to stop Rial.
Before the hearing , Rial had gone into military service and did not testify. Holt
-testified that Rial expressed fear of stopping and refused to do so, although Holt
tried to assure Rial that Cook and Prado were regular fellows. Following this,
and in a distance of perhaps another 1 or li miles, Prado indulged in various
-maneuvers with his car to bring Rial to a halt , starting with "drifting" in Rial's
-direction and later with passing Rial and cutting in front of him. On one occasion,
to avoid being cut off by Prado's car, Rial swerved off the road to the right shoulder
and speeded up. After that, Prado passed Rial, cut fully in front of Rial, about
* See Jordan Bus Company and Denco Bus Lines, Inc, 107 NLRB 717; The Texas
Company, 93 NLRB 1358 An offer of protection in crossing the picket line is not, in my
opinion, such special inducement It is no more than the normal concern an employer
should have for the safety of his employees.
5 The Respondent's plant faces Mowry Avenue in Newark, a street that runs from
southwest to northeast. Mowry deadends in a city dump a short distance southwest of
-the plant . In a northeasterly direction it leads to Centerville and to crossroads leading
-to other East Bay cities
TITAN METAL MANUFACTURING CO. 203
one or perhaps a length and a half ahead of Rial , and slowed down . Rial cut
around Prado on the left and returned to the slow lane . Prado caught up, passed
Rial on the left, cut sharply in front of Rial and stopped fast , on an angle, across
the line dividing the fast and slow lanes. The witnesses varied considerably in
their estimate of speeds, but I conclude that, when not impeded by slowing down
tactics, Rial was attempting to maintain a speed of between 25 and 35 miles per
hour. When Prado stopped sharply in front of Rial, diagonally across the road, Rial
applied his brakes hard and cut his wheels sharply to the left, skidding to a diagonal
position 6 opposite to that of Prado 's car; then Rial started up and, to clear Prado's
,car, cut left across the dividing strip into the fast southbound lane and returned to
the righthand northbound lane. While Prado and Cook were still at a stop , Super-
intendent Miller drove up on their right, stopped , and asked what they were trying
to do. Cook answered that they wanted to talk with "that fellow in the other car."
Miller said that that was "a h- of a way to do it ." Prado and Cook took off
again but did not thereafter get ahead of Rial, or engage in any maneuvers. Rial
made a right turn on the next thoroughfare , went for a distance of a mile, more or
less, and made another right turn , with Prado and Cook following all the way.
Miller , meanwhile, followed Prado and Cook. After the last turn, Rial stopped at
the curb, Prado and Cook pulled up behind and to the left of Rial's car, while
Miller brought up the rear. Rial and Holt got out and went to Cook, who did not
get out of Prado 's car. Miller joined them and asked Cook why he was there. He
answered that he wanted to talk to Rial. Holt warned Cook that if he threatened
harm to Rial , he could be in serious trouble. Rial asked what Cook had to say.
Miller testified that Cook asked Rial if he realized that he was taking someone
else's job in the plant , and told Rial he would better not return to work the following
Monday or there would be somebody else to stop him . Cook quoted himself as
asking if Rial knew he had crossed a picket line and if he knew they were on strike.
Rial asked if that was all Cook wanted . Cook said it was, and Rial told Cook to be
on his way then . Holt and Cook chatted amiably for a short while about the
subject of fishing . When the group broke up, Prado turned around and left. Miller
and Holt remained with Rial until he reached his home; then they returned to the
plant and reported to Golden the activities of Prado and Cook . Golden considered
this report over the weekend ( the incident occurring on Friday night ). On Monday,
November14 , 1960, Golden sent telegrams to Prado and Cook notifying them that
their acts of reckless 7 use of an automobile against an employee of Respondent on
November 11 were not protected by the Act and that they were discharged without
right of reinstatement.
b. Events of November 30, 1960
By the end of November , the Respondent had hired 14 replacements . On Novem-
ber 30 , a large number of pickets were in front of the plant . Three service roads
for the plant extend between the plant facilities and Mowry Avenue . The first, as
one approaches from the northeast on Mowry, is the entrance to the office parking
lot, the second is the exit for that parking lot, while the third , sometimes called the
truck entrance, leads to the plant parking lot as well as to the truck scales and the
rear of the plant . On that morning , as employees arrived at work, they found their
progress impeded by strikers in their path. A number were stationed in the office
parking lot entrance while others were on Mowry and at the truck entrance. Union
President Richard Winter was near the office parking lot entrance, among a num-
ber of others, and strikers Warren Jennings and Harry Kissler were walking down
Mowry toward the truck entrance when a car driven by a newly hired employee,
J. D. Herrin , reporting for the first time, approached the plant on Mowry. It slowed
to about 5 miles per hour and proceeded to a point between the entrances to the two
parking lots. Jennings turned , faced the front of Herrin 's car , and put his hands
on the hood and right front fender . The car continued at the same speed with
Jennings walking or jumping backward. The driver raced the motor of his car 8
and then swerved to his left and accelerated The evidence is in conflict as to
whether Jennings was struck and tossed onto the fender or whether he jumped for-
8 It had been raining that day, but whether or not the roads were still 'wet is not
certain
7 The telegrams had been telephoned to the Western Union office . The misspelling of
"reckless" as "wreckless" in the telegrams is not chargeable to the Respondent, nor do
I read them as having a meaning different from that intended
8 1 received the impression that the driver did this with his clutch disengaged as a
warning signal before actually moving forward at an increased speed
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ward onto it and then rolled off into the ditch. He may have been struck as he
attempted to jump aside .9 In any event , Winter , observing Jennings going into
the ditch , voiced an imprecation , reached down and picked up a piece of hard clay
about the size of a soft ball, and threw it at the back of the receding car. Winter
testified that the lump fell short of the car and broke up in the road . This was un-
refuted . The Respondent 's witnesses were not in a position to see where it landed,
and Herrin did not testify.
Kissler, about 30 feet below Jennings toward the truck entrance , but on the oppo-
site side of the road, also saw Jennings go into the ditch . Kissler had been walking
toward the truck entrance on Mowry Avenue with a paper cup in his hand ( having
bought coffee at a canteen truck a while before ). Kissler saw the car come into
contact with Jennings. He turned to face the side of the car as it was accelerating
in his direction and raised his hands face high before him . iO The testimony at this
point is in conflict . Witnesses for the General Counsel testified that they saw
Kissler's cup fly upward and then saw Kissler roll off the rear fender . Kissler testi-
fied that he was hit by the side of the car and rolled along its side, striking his elbow
and suffering a small glass cut on his little finger . Office Manager Moore, who
observed the incident as he was approaching the entrance to the office parking lot
on Mowry in his car, testified that he saw a man whom he believed to be Kissler
with his hands at the left front window of the car and then heard a loud noise
of impact and the sound of glass breaking.
After the incident involving the Herrin car, Superintendent Miller, who had wit-
nessed Winter 's act of throwing something at the car , reported the matter to
Golden, but he called the thrown object a rock. Moore reported what he had seen
and heard to Miller and Golden, but although he said he saw a blow struck, he told
them he thought it was Kissler who did it but he was not sure.
On the same morning , Plant Metallurgist John Dillon , approaching the plant,
attempted to drive his small foreign car into the office parking lot but was blocked
by a group of pickets , one of whom , a man in a plaid jacket , was not a striking
employee . This man was at the right front of Dillon 's car . He remarked to
Dillon, "Let's tip your car over ." Dillon tried to swing to the left around this man,
but the latter kept pace and continued to block Dillon 's ingress . By this time,
Dillon 's car had turned left until it was almost parallel with Mowry Avenue.
Striker Thomas Crain was then near the left front of Dillon's car. The testimony
of the witnesses from this point on was at variance as to what occurred . Dillon
testified that, as Crain was standing in front of his car, Leo Rial (previously men-
tioned in connection with Prado and Cook) drove onto Mowry and proceeded slowly
in the direction of the truck entrance , that Crain left his position by Dillon 's car and
went into Mowry Avenue and kicked Rial's car , that this gave Dillon a moment in
which to start to turn his car into Mowry Avenue from the parking lot entrance,
that Crain came back and told Dillon that if Dillon hit him, he would whip Dillon's
posterior , that Dillon eased his car past Crain and just after the window of his car
passed Crain , he felt a bump , and that he then proceeded into the office parking lot
by way of the exit road.
Foreman Holt, who drove his car into Mowry Avenue from a side street and
approached the office parking lot entrance , testified that he saw Crain at the left
front window of Dillon 's car with one hand on the roof at the top of the door and
the other resting on the sill, that as Dillon started up , Crain 's hands dropped down
and came into the fender well of the rear wheel , that at this point Crain, whose
knees were apparently bent in a stooping position , suddenly raised himself, holding
onto the fender , that Dillon's car was raised enough so that the left rear wheel spun
faster than the others ii
Crain's account was that , as Dillon came past the entrance to the office parking
lot, Dillon stopped in front of him , he walked to the window on the driver 's side,
where he rested his left hand on the sill and his right hand on the roof, and asked
Dillon to help them win the strike instead of pulling against them, that Dillon had
replied that he was going in and no "s- o - b-" was going to stop him, that
Dillon had then started up rather fast and that he (Crain) then pushed himself
9 Jennings suffered no serious injuries. He bruised his shoulder and skinned his knees
as he fell into the ditch. Some testimony suggested that Jennings had started to the
driver's side of the car to speak to the driver. On all the evidence , I conclude that his
purpose was rather to cause the car to stop by standing in front of it
10 The record apparently failed to describe in full Kissler 's demonstration with his
hands, but I observed that Kissler had his hands closed in the form of fists.
n Following this, Bolt tried to enter the office parking lot but was blocked He asked
Winter if he was going to let him in Winter replied , "No, turn around and go home."
TITAN METAL MANUFACTURING CO . 205
away from the car with his hands on the roof ,12 and that otherwise he did not rock
Dillon 's car nor touch the fender or bumper of Dillon's car.
Holt reported to Golden what he had observed Cram do to Dillon's car. Golden
considered this report and the reports received from Miller and Moore and on
Friday, December 2, 1960, sent to Winter and Crain telegrams notifying them that,
for acts performed on the Wednesday preceding , they were discharged without right
of reinstatement 13
Golden sent no discharge notice to Kissler at that time because he felt that the
identity of the men who had been reported as having broken the car window of an
employee had not been sufficiently established. However, Kissler later executed an
affidavit for a court proceeding in which, in part, he deposed: "The side of the car
grazed me and my hands made contact with a window. I heard the glass crack as
the car bumped by me." He also therein denied that he had hit the car window,
insisting that the car had hit him. However, upon learning through this affidavit
that Kissler was the one whose hands had come into contact with the car window,
Golden, on December 19, 1960, sent Kissler a similar notice of discharge.
c. Conclusions respecting the discharges
Because within a month after the end of the strike all five dischargees were re-
employed, the problem here is to determine (1) whether or not the Respondent's act
of notifying the employees during the strike that they were discharged was an un-
fair labor practice which converted the economic strike into an unfair labor practice
strike, and (2) if it was not, whether or not the dischargees were treated as all
other economic strikers and were reinstated at the end of the strike to the extent
that they had not been permanently replaced.
Most frequently, the question of the effect of discharge of a striker for misconduct
arises because of a refusal to reemploy him at the end of the strike, and the problem
then to resolve is (1) whether or not the striker's misconduct was of such char-
acter as to justify the employer in denying him employee status, and (2), if so,
whether or not the Respondent had justifiable grounds for believing in good faith that
the employee had in fact engaged in such misconduct. Here, however, it must be
ascertained not merely whether a discrimination occurred at the end of the strike
but whether it occurred at the very moment of notification of discharge. From the
fact that the Respondent did reemploy all dischargees, it might be deduced that the
Respondent discharged them as a tactical maneuver with no permanent intent to
deprive them of such rights of economic strikers to reemployment as might exist
at the end of the strike. No testimony was given regarding the Respondent's future
intent at the time the discharge telegrams were sent, and as direct evidence of the
Respondent's intent as to the future was consistent with either an affirmative or
negative inference, I cannot from it alone conclude that the Respondent did engage
in a mere tactical maneuver. Vice President Golden testified that he discharged the
five strikers for misconduct because he was concerned with the safety of the Re-
spondent's nonstriking employees (i.e., replacements) and he wished to check any
acts of violence against them. He acted consistently with this purpose in discharg-
ing only those whom he believed to be culpable of acts which threatened the
safety of the Respondent's employees. There is evidence of mass picketing or ob-
struction of entrances with apparent attempts to turn employees away which, by law,
might, perhaps, have justified other discharges,14 but the Respondent did not dis-
charge anyone for that alone. It discharged only those who, in some way, threatened
the safety of employees or performed acts designed to instill in them a fear of
violence.
Before November 11, 1960, the Respondent is not seriously claimed to have
engaged in unfair labor practices. True, the General Counsel alleges that the Re-
spondent before that date solicited the return of strikers but he does not argue in his
brief that this had any causal connection with the continuance of the strike. Not
12 Crain gave a demonstration of pushing with both hands at the same height
11 Golden testified that he relied only on the reports of supervisors He apparently did
not, therefore, consider Crain's act of kicking Rial's car as a basis for Crain's discharge.
So Crain was discharged solely for "rocking" Dillon's car. Winter was discharged for
throwing a hard object at an employee's car and therefore, I infer, not for blocking Holt
from entering the plant
14 See The American Toot Works Company, 116 NLRB 1681 ; Talladega Foundry &
Machine Company, 122 NLRB 125 A case sometimes cited as being contrary, Puerto Rico
Rayon Mills, Inc, 117 NLRB 1355, is distinguishable because the employer's refusal to
reemploy was not based on the employees' misconduct in blocking entries but was based on
the unwillingness of the employees to abandon the strike.
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
only did the Respondent 's communications with strikers have no causal connection
with the continuance of the strike , but they were not, I have found , even unfair
labor practices . Also, there is no contention on the part of the General Counsel
that the Respondent refused to bargain with the Union before March 1, 1961, some
weeks after the end of the strike . The evidence all points to a temperate , attitude
on the part of the Respondent with no inclination to undermine the Union or to
subvert the policies of the Act unless the discharges be found to be discriminatory.
A violation of Section 8,(a)'(3) of the Act would here require a finding of antiunion
motivation as evidencing an intent to discriminate and thus to discourage union
membership or aetivity.15 There is no evidence that such animus existed or that such
discouragement was intended by the Respondent . It is evident that the Respondent
respected the employees' right to strike although it asserted a right, as permitted by
law, to hire replacements for strikers . Perhaps, even absent intent, discouragement
of union membership or activity could be found if the discharges were for a cause
which would necessarily interfere with the right to strike or to engage in lawful
conduct while on strike . Wholly aside from the question of the possible rights of
the dischargees at the end of the strike , the announcement of discharge for acts.
honestly believed by the Respondent , with cause, to be unprotected activities would'
not, in my opinion , be an unfair labor practice , under the circumstances of this case,
even if the misconduct were held to be not sufficiently serious to bar reinstatement
rights at the end of the strike . If the Respondent had merely told the five strikers.
that their misconduct was such as to jeopardize their reinstatement at the conclusion
of the strike , no serious contention could be made that this would have been an
unfair labor practice . An announced discharge during the strike purports to make
the decision not to reinstate at the end of the strike but otherwise (absent a show of
opposition to the purposes of the Act ) it is not materially different until the end
of the strike when the employer demonstrates whether or not he will stand on his
expressed decision.
In determining whether or not the Respondent 's act of discharging strikers for
misconduct could have the effect of converting the strike from an economic into an
unfair labor practice strike, I am inclined in this case to separate the problem of
what the Respondent might justify at the end of the strike ( in depriving any dis-
chargee of the rights of an economic striker ) from the problems of what it might
justify during the strike. I shall therefore consider the conduct of the five dis-
chargees from the standpoint of what the Respondent had cause in good faith to,
believe , from what the object to be accomplished by the Respondent in discharging-
strikers was, and in the setting of a total absence of any background of unfair labor
practices.
I am convinced and find that the Respondent had an honest belief that Prado'
and Cook acted in a way to intimidate Rial and thereby to deter him from crossing
the picket line. The manner in which Prado drove his car was certainly reckless
enough and threatening enough to cause Rial to believe that Prado and Cook intended
to deal violently with him . The final reckless act that of skidding in front of
Rial 's car and partially blocking both northbound lanes-was of such nature as to
cause an accident . That it failed to do so was mere chance . Had Prado 's car actually
rammed Rial 's car, I doubt that the General Counsel would have contended that
Prado and Cook could not be legitimately discharged therefor. An assault is
enough to instill fear of present physical harm without a battery . The Board has
found that conduct calculated to put a nonstriker in fear of bodily harm is sufficient
to justify the employer in denying the status of employee to the misbehaving
striker . 16 The General Counsel cites the Board 's decision in Schott Metal Products
Company, 128 NLRB 415, in support of his contention that following a nonstriker's
car and using threatening and profane language were not serious misconduct. Per-
haps the following of the nonstrikers , alone, without more, could be excused, as it
was in the Schott case and as it was also in Stewart Hog Ring Company, Inc., 131
NLRB 31017 In this case , however, Prado and Cook did not limit themselves
merely to following Rial. Prado's driving , which Cook apparently approved of,
was designed to attempt to force Rial to stop his car by threatening physical danger
from a moving automobile . The facts here justified the Respondent in the belief
15 Economy Stores, Incorporated, 120 NLRB 1, 8; Bartlett-Collins Company, 110
NLRB 395
1e Homer Gregory Co., Inc., 123 NLRB 1842; H N Thayer Company, 115 NLRB 1591;
Standard Oil Company of California, 91 NLRB 783; Ekco Products Company (Sta-Brite
Division), 117 NLRB 137, 148-149.
17 Consistent with this view of the law was the Respondent's lack of action with respect
to the strikers identified as those who, in Robinson's car, followed striker Johnson
TITAN METAL MANUFACTURING CO. 207
that Prado and Cook sought to force Rial off the road , at the very least , and that it
was an assault , a threat, designed to inspire fear for bodily safety.18 That the pur-
pose of Prado and Cook was not limited to a desire merely to talk could easily have
been inferred by Rial or by Golden . If Prado and Cook had wanted merely to
speak with Rial , one may ask why they made no attempt to do so as Rial was leaving
the plant parking lot and before he was on the open highway . According to Cook's.
testimony, when he did speak to Rial , it was to ask a question that was inane,
because the answer was obvious . The circumstances therefore justified a belief that,
the real purpose of following Rial was rather to inspire fear of bodily harm or fear
of possible future danger if the strikers should learn the location of Rial 's residence.'9
The fact that , when Rial did stop , Prado and Cook acted peaceably enough would
not necessarily convince either Rial or Golden that the initial intent of Prado and
Cook was peaceable for, by the time that Prado ceased his reckless driving, Miller
had intervened and augmented the number of persons who might be expected to
oppose Prado and Cook if they had in mind more than talk. Although I did not see-
Rial, I did see the others. Without Miller , Holt looked like he might have afforded
insufficient physical protection to Rial against Cook and Prado . Miller is a more,
robust man than Holt , and his presence would suffice, along with Holt and Rial, to
deter any attempt to harm Rial . Hence, either Rial or Golden could infer that the
reasons for the peaceable conduct of Prado and Cook at that moment was the pres-
ence of a show of adequate forces and that this did not signify either an original or
a future peaceful intent. I find on all the evidence that, in discharging Prado and'
Cook , the Respondent acted on a justifiable belief that they had engaged in acts.
unprotected by the Act 20 Whether or not the dischargees ' conduct might, at the
end of the strike, be excused as not sufficiently serious to deprive them of the status,
of economic strikers is a matter that should be raised , if at all , in connection with
the allegation of discrimination in the reinstating or rehiring of strikers at the end
of the strike.
The incidents occurring on November 30, which resulted in discharges , as Golden
was justified in viewing them , resulted in but one case of actual damage . It is not,
however, unreasonable to infer from Dillon 's and Holt's accounts that Crain sought
to damage Dillon 's small car by tipping it on its side . Holt impressed me as an
unbiased and honest witness, and I find that his account is a credible one. Crain's.
account of the manner in which he pushed himself away from Dillon's car is not
credible . With only his right arm on the car roof over the door, Crain would have-
had to turn to face ,the side of the car, raise his left hand to the roof and push with
both hands to do what he demonstrated at the hearing. This appears unnatural and
improbable unless it was a deliberate act. Whether or not Crain was attempting to'
harm Dillon or his car , I find that the Respondent had reason to believe that Crain
was attempting to do so. I find that Crain was discharged for what the Respondent
honestly believed was conduct which was not protected by the Act.21
Winter's act of attempting to hit an employer's car with a piece of hard clay like-
wise resulted in no actual damage . Winter no doubt felt provoked by seeing Jen-
nings apparently being bumped by the car, but Winter, himself had not been touched
or endangered . I conclude , therefore , that his act was not legally defensible. The
fact that he failed to hit the receding car cannot be attributed to Winter 's lack of
intent The attempt to strike the car was to be inferred. An assault is as much an act
of violence as -a battery although it results in no actual physical damage.22 The
Respondent was further justified in believing that Winter might possibly engage in
other acts of violence thereafter, since his disposition to violence was established. I'
find, accordingly , that the Respondent entertained a good-faith belief that Winter's
conduct was unprotected by the Act.
In Kissler 's case, no witnesses viewed the broken window immediately after
Kissler's hand came into contact with it. The car , driven by Herrin , did not go into
the plant but continued down Mowry Avenue to the dump , turned around and re-
turned at high seed past the plant and headed toward Newark . Before it reached
Newark, it was stopped by a police patrol car officer , within half an hour of the
time it first passed Kissler . This officer testified that the safety -glass window of the
18 The Cambria Clay Products Company, 106 NLRB 267, 271; H N Thayer Company,
115 NLRB 1591. And see Checker Taxi Company, Inc, 131 NLRB 611
10 See H. N. Thayer Company, supra
"Rubin Bros. Footwear, Inc, 99 NLRB 610.
21 Rubin Bros. Footwear, Inc., supra; Clay M. Bishop, et al., d/b/a New Hyden Coal
Company, 108 NLRB 1145.
22 See Homer Gregory Co., Inc, 123 NLRB 1842 (specifically the throwing of a pop
bottle) ; Ekco Products Company (Sta-Brute Division), 117 NLRB 137 (throwing tomatoes)
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
car on the driver's side had been cracked in one place in an area about the size
of a fist . Other witnesses saw the same break a short while later. It was described
as being a spot near the top of the glass of the window, about the size of a baseball,
where the glass was virtually pulverized, so that it could be moved in and out. Longer
cracks radiated down and across the window from the point of impact. Golden
testified that, from having seen safety glass broken, he knew the difficulty of breaking
it, and believed it inherently improbable that the window of Herrin's car could
have been broken in the manner in which it was by a glancing bump such as Kissler
described.
The General Counsel sought to raise a doubt that the window had not already
been cracked, and the Union suggested the possibility that a minor crack had been
aggravated by a deliberate act of Herrin to escape a "hit-and-run shadow." Both
attacked the credibility of Office Manager Moore whose own car was moving and
who caught but a fleeting view of the scene, because he was, they claimed,
unable to name other strikers present or give anything but a confused account of
the location of other strikers (aside from Kissler and Jennings) in the vicinity.
Counsel for the General Counsel and the Union suggest that because Moore was
uncertain of the identity of Kissler, the window of the car might have been broken
by some striker other than Kissler. I do not question the credibility of Moore. It
appeared to me that he was consciously attempting to avoid testifying to anything
except what he actually saw. Had Moore given more details in a more positive
manner, I should have suspected that he was not relying on his memory alone.
Moore appeared to me to be a man of emotional sensibility to whom the incident
was distasteful. When Moore related the incident to Golden, he reported that he
had seen a man he thought to be Kissler strike a blow but that Kissler was not
the type of person to break a window. From this, I find that Moore was unin-
fluenced by bias or animosity.
Contrary to the contentions of the General Counsel and the Union, I have no
doubt that Kissler, probably incensed, like Winter, at seeing what he took to be
a deliberate act of running into Jennings, in a moment of anger, did in fact strike
the blow witnessed by Moore. The fact that the point of impact was so near the
top of the window glass suggests that the window was partially opened at the
time and that the driver may have been in the process of raising it to avoid being
struck by Kissler, whose posture with his fists up would have appeared menacing
to him. Kissler's explanation of putting his hands in front of his face to protect
himself from the car is not convincing. Mowry Avenue is shown by an exhibit in
evidence as approximately 23 feet wide. Kissler described his position as 3 or 4
feet from the opposite edge of the road from that on which the car was proceeding
when it came in contact with Jennings, and Kissler placed Herrin's car, as it
approached him, as about at the center or a little over the center of the road toward
him. It is apparent, therefore, that the car was still a matter of several feet away
from Kissler when it passed the spot where he was and that Kissler had several
feet in which he could have withdrawn. A grown man in full possession of his
faculties who sees a car approaching dangerously close to him would not, in my
opinion, turn to face the car with his fists in front of his face-he would turn to face
the nearer side of the road, start in that direction, and perhaps put his nearer
arm out to break the impact of the car and to assist him in jumping out of its way
in case contact was made.
In an attempt to prove that Kissler was innocent of wrongdoing, the General
Counsel called as a witness Wayne Yorks, the man who had been Kissler's foreman,
to testify that, after receiving the discharge telegram, Kissler had come to him and
expressed ignorance of the cause of his discharge and said that the only thing he
did was testify at "the hearing," referring to the affidavit which Kissler executed
on December 14, 1960, for use in a State court proceeding on December 16. Yorks
told Kissler that he would try to find out the cause for him. No questions were
asked of Yorks as to whether or not he had later informed Kissler of what he had
learned or as to what Kissler might have said at that time. The delay in Kissler's
discharge from November 30, the date of his misconduct, to December 19, the date
of his discharge, could, in itself, unexplained, raise a legitimate doubt in Kissler's
mind as to the cause for discharge and could have prompted his inquiry. Since the
delay has, however, been satisfactorily explained by the Respondent, I find the evi-
dence concerning Kissler's statements to Yorks as entitled to no weight. I further
find that the Respondent had good cause to believe that Kissler engaged in conduct
unprotected by the Act.
In view of the fact that, after the end of the strike, the Respondent rehired
all strikers who desired to return, including the five dischargees, the act of notifying
the five of their discharge during the strike could be viewed to be a tactical maneuver
to discourage violence of strikers. But whether or not it was so intended by the
Respondent at that time, I still find that, because of the Respondent's lack of intent
TITAN METAL MANUFACTURING CO . 209
to discriminate against the strikers for any lawful exercise of the rights guaranteed
them in the Act, the notification to the five by the Respondent of discharge was not,
under the circumstances here found, an unfair labor practice.
d. Economic or unfair labor practice strike
Since I have found that the Respondent committed no unfair labor practice before
or during the strike, the strike could not have been converted into an unfair labor
practice strike. However, being cognizant of the fact that the Board might not
agree with my conclusions, and might find the discharge notifications to be unfair
labor practices, I believe it necessary to deal with the problem of causal connection,23
concerning which resolutions of credibility are necessary.
To prove the necessary causal connection between the discharges and the pro-
longing of the strike, the General Counsel adduced evidence that, at the first union
meeting following each of the three discharge dates, the members voted not to
abandon the strike until all returned, including the dischargees. Conflicts in both
the testimony and the purported minutes of the meetings cast doubt on the accuracy
of the evidence. The absence of accurate minutes of the critical meetings in itself
arouses suspicion. The testimony was that the recording secretary became remiss
in his duties and failed to record these minutes. The only entries in the minute
book for these meetings were merely memorandums, entered by President Winter
weeks after the meetings, based partly on notes he procured from the recording secre-
tary and partly on his own memory. It does not appear that these entries were ever
read or approved by the membership. They did not, as did the minutes of other
meetings entered by the recording secretary before and after the three critical meet-
ings, give the name of the member making the alleged motion, and one memorandum
entry was in conflict with the testimony of Prado, who was mentioned in the so-
called minute as having appeared at the meeting and reported his discharge. Actually,
Prado had not received the notification of his discharge before the meeting. Not
one of the witnesses who testified for the General Counsel could remember the
name of the member who made the alleged motion not to return until the discharged
strikers were reinstated. Furthermore, some of the witnesses who testified to their
memory of the motion not to return to work at times related it as a motion that they
would not return to work unless all did, no mention being made of the dischargees
specifically.24 This suggests that if a motion was made, it was designed to maintain
solidarity and to deter those who were disposed to abandon the strike and to return
to work as early as late October from taking such action. If this were the case,
the purpose of the motion was not to assure reinstatement of the dischargees.
It is also of some significance that at no time did the Union protest the discharges
or insist upon (or even suggest) reinstatement of the dischargees as a condition of
settling the strike in any bargaining meeting or other direct communication with
the Respondent. The first indication of protest was the filing of the charge more
than a month after the discharge of Prado and Cook. Yet on November 25, 11
days after the discharge of Prado and Cook, of which the Union was aware, a bargain-
ing meeting was held, but the only topic discussed that had any relation to the
return of the strikers to work was that concerning the effect of the hiring of replace-
ments on the job rights of returning strikers. No mention was made of the status
of Cook or Prado. Also of significance concerning the question of whether or not
the strikers might have abandoned the strike but for the discharges was the evidence
that, before the start of the November 25 meeting the negotiating committee met with
the international representatives of the Union and revealed the conditions on which
they would give up the strike. According to Robinson, who, himself, was biased,
they said that their minds were made up not to return to work until the dischargees
were returned to work and that they would not return without a wage increase, but,
if "they" wanted to get the dischargees back, they would probably go back under the
same agreement that they had before the strike with the same seniority and every-
23 See Anchor, Rome Mills, Inc., 86 NLRB 1120; Jordan Bus Company, et at., 107
NLRB 717
24 Although the vote was uniformly testified to have been a standing vote, one witness
testified that, during the meeting, some members, for want of seats, I infer, were stand-
ing. A standing vote would entrap such members into an affirmative vote. All the wit-
nesses called by the General Counsel to testify concerning the events at these meetings
had a personal Interest in the outcome of this proceeding and I take their natural bias
Into account. Also, their testimony struck me as tailor made and practiced, lacking the
spontaneity of unrehearsed testimony. So I do not accord full credence to their testimony
.concerning the wording of the motion made at those meetings.
634449-62-vol 135-15
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thing else back to the date they went on strike with no loss of time on seniority. I
hive some doubt as to the literal accuracy of this testimony. The strikers were ap-
parently concerned over the retention of seniority of all the strikers and not merely
that of the two who, before that date, had been discharged. If, in fact, there was
mention of the dischargees in this premeeting conference, I consider it odd that no
mention was made of the dischargees when the Union actually met with the Respond-
ent, especially since without the consent of the Respondent, reinstatement of all
strikers without loss of seniority would have required the Union to establish that
the strike had been converted into an unfair labor practice strike, and the Union's
best ground for claiming such a conversion was an unfair labor practice in the dis-
charge of Cook and Prado. Yet, although the Union asked the Respondent about
the effect of replacements on the rights of returning strikers, it did not mention the
discharges, let alone claim that the strike had been converted into an unfair labor
practice strike. Most of the bargaining meeting was devoted to negotiating over the
provisions of a contract. It is apparent, therefore, that economic issues were still
being pressed.25 There was no indication of a desire to terminate the strike merely
on revocation of the discharge notices. I conclude and find that the General Counsel
has not, by a preponderance of the credible evidence, established a causal connection
between the several discharges and the prolonging of the strike, even assuming that
those discharges could have been unfair labor practices.
2. Discrimination in the reinstatement of strikers
a. The end of the strike
On February 9, 1961, the Union wrote to Cantwell, the Respondent's representa-
tive, making an unconditional offer on behalf of the strikers to return to work
immediately. The date of the Respondent's receipt of this letter was apparently the
next day, February 10. On February 10, 1961, the Respondent reemployed one
striker; on February 14, six more; on February 20, nine; and at various dates there-
after between February 27 and April 27, 1961, it employed or offered jobs to all
other strikers who had not resigned. These dates were apparently based on vacan-
cies existing or occurring, because the Respondent did not discharge replacements
specifically in order to rehire strikers.
b. The contentions and the evidence of jobs available
From the several kinds of discrimination charged, from the evidence actually
presented by the General Counsel, and from his brief, I infer that he expected the
allegations of the complaint to be proved on the theory that the strike was an unfair
labor practice strike, for he offered no argument concerning his theory of discrimina-
tion in the event that the strike should be found to be an economic strike. Never-
theless, the complaint is drawn in such a way as to be applicable to the case of an
economic strike as well as to the case of an unfair labor practice strike. Since it has
been found that the strike was an economic strike throughout, the Respondent was
obliged to reinstate only those strikers who were not permanently replaced, but the
burden was on the Respondent to show that the economic strikers were replaced
before their unconditional application to return 28 and that it had no openings for
other strikers who applied to return to work and who were entitled not to be dis-
criminated against merely because they had been strikers 27
At the end of the strike, there were 30 strikers who had not previously resigned.
This number included the five dischargees. The Respondent, over a period of 3
months from February 10, reemployed all the former strikers who desired employ-
ment, including the five dischargees.
The question here involved is mainly one of whether or not certain strikers were
entitled to reinstatement because they were unreplaced, but there is also a question
of whether or not other former strikers were entitled to jobs earlier than they were
actually given them. Some of those who were rehired in their former positions had,
at one time or another during the strike, been replaced by one or, at different times,
by more than one replacement. The evidence presented in the Respondent's exhibit
showing replacements is inconclusive, however, as to whether or not the replacement
25 This tends to negate the argument that the discharges were responsible for prolong-
ing the strike. The Texas Company, 93 NLRB 1358; Anchor Rome Hills, Inc, 80
NLRB 1120
' New Orleans Roosevelt Corp.. 132 NLRB 248
n Bartlett-Collins Company, 110 NLRB 395, affd sub nom. American Flint Glass Workers'
Union of North America, et al. v. NLRB , 230 F. 2d 212 (CAD C )
TITAN METAL MANUFACTURING CO. 211
last on the job of a given striker was still filling the position of the striker on Feb-
ruary 10, 1961. I notice from one exhibit introduced by the Respondent that striker
T. H. Bailey was replaced on November 11, 1960, by N. P. Johnson. However,
another exhibit introduced by the Respondent shows that Johnson quit his employ-
anent on January 3, 1961, and no new employee is shown to have been on Bailey's
job thereafter. Since Bailey was reemployed on February 14, 1961, within a reason-
able time after his application for reinstatement, and in his former position,28 he
was apparently reinstated and was not discriminated against, unless the Respondent
has treated him as a new employee not entitled to his former seniority or other rights
and privileges, concerning which there is no evidence.
From the manner in which the evidence was presented and particularly because the
Respondent proved only the date on which the alleged replacements started on a
striker's job and did not prove the last date that such replacement occupied that
position,29 I conclude that the Respondent may be laboring under a mistaken belief
as to the legal rights of economic strikers. Ever since the Mackay decision, 30 it
has been taken as settled law that, upon unconditional application to return to work,
economic strikers are entitled to their former jobs only if not permanently re-
placed.31 Very little, however, has been said about the meaning of the expression,
"permanently replaced." I suspect that the Respondent takes that expression to mean
that, when a new employee is hired during an economic strike, if the employer
assures him of "permanent" employment, the striker whose position the new em-
ployee takes is permanently replaced and that, regardless of how long the new em-
ployee is on the striker's former job, the striker has immediately lost his status as
an employee. Although it may be a necessary element of "permanent replacement"
that an employer assures employees newly hired during an economic strike that
they will not be terminated at the end of the strike to make room for a returning
striker, proof of that fact alone is not sufficient to cause an economic striker to lose
his status. If it were, the striker would lose his status even though the replacement
worked only 1 day and then was fired for poor workmanship. In order to assure
nondiscrimination in the case of returning economic strikers, the Board requires
the Respondent, in proving replacement, to show that the replacement actually is
employed in the position formerly occupied by the economic striker at the very
time when the economic striker unconditionally offers to return; for otherwise, the
Board holds the economic striker has not lost his right to reinstatement.32
The General Counsel and the Respondent presented the minimum of evidence
to assist in determining the number of returning economic strikers who were en-
titled to reinstatement. On February 10, 1961, the Respondent had in its employ
38 new (i.e., replacement) employees, 2 of whom quit on that very day, leaving 36,
while 1 striker was rehired that same day, making a work force then of 37. From
a stipulation of the parties, it was established that on November 14, 1960, there were
39 strikers who had not resigned. Two had resigned before that date. From this,
it might be inferred that before the strike the Respondent's normal complement of
production workers had been about 41 men.33 On the basis of maintaining a full
complement of the production force, the Respondent had vacancies for at least
three returning strikers on February 10, 1961, if not more, and it certainly had room
for two more after the resignation of two replacements on that date, a total of five
vacancies. This method of determining the number of job vacancies is not without
possible difficulties, however, because the Respondent's evidence shows that no re-
placements were hired at all for 10 strikers and that the replacement for another
striker, Bailey, was terminated before February 10. On this basis, there could have
been as many as 11 vacancies, only 6 of which ,were shown to have been refilled by
returning strikers. Whether or not there was work for the remaining five types of
28 He had been paid $2 20 an hour nonincentive rate before the strike but was shown as
on $2 10 base incentive rate upon reemployment, the going rate at that time for his job
29 I notice that, even though in certain cases the strikers' named "replacements" were
still in the employ of the Respondent after February 10, 1961, the strikers were never-
theless given their former positions upon reemployment. It is unclear in such cases
whether the so-called replacements were transferred off those jobs upon the return of
the strikers or whether they had been removed from such jobs before February 10, 1961.
30 N L R B. v. Mackay Radio & Telegraph Co , 304 U S. 333, 345
31 See, e g, Atlas Linen and Industrial Supply, 130 NLRB 7,61 ; Economy Stores,
Incorporated, 120 NLRB 1; Bartlett-Collins Company, 110 NLRB 395, affil sub nom.
American Flint Glass Workers' Union, etc. v N L R.B., 230 F 2d 212 (C.A.D C.).
33 Union Bus Terminal of Dallas, Inc, 98 NLRB 458
33 It is uncertain whether or not employee D. Howard had been counted as among the
strikers He was off work on workmen's compensation at the time the strike started.
He never reported as able to resume work.
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
jobs was not shown. However, in view of the number of new employees retained
and old ones reinstated, the Respondent was apparently hiring men approximately
as fast as it needed them to fill out its complement of production workers. Since
the positions of several strikers who had resigned during the strike were never filled
during the strike or afterward so far as appears, there is no sound reason to infer
that those jobs actually were needed to be filled. They cannot, therefore, be counted
as available openings for returning strikers. The remaining jobs of unreplaced
strikers who resigned during the strike for whom no new employees were hired
during the strike were all sooner or later filled by, or offered to, returning strikers
with one possible exception-Jennings' former position.34
The complaint alleges that all the strikers were discriminated against by four types
of conduct. Each will be considered to the extent possible on the evidence presented:
.(1) Failing and refusing to return to employment 14 named strikers
until certain belated dates
I observe that, although some strikers other than the 14 named in this clause of the
complaint were returned to the Respondent's employ as late as, or later than, those
named, they are not included as specific discriminatees. The reason for the selection
of only 14 is not stated. Whatever the reason for exclusion or inclusion, I need
consider only the alleged delay as to the 14 named.35
Of the 14 named in the complaint as belatedly returned to employment, James
Douglas alone had never been replaced 36 He was not offered reinstatement until
sometime between February 16 and 2037 The exact date of offer is not proved.
Douglas is shown on an exhibit as resigning on February 21, 1961. If it had any
excuse for the delay in recalling Douglas, the Respondent made no attempt to reveal
it at the hearing. Absent any explanation by the Respondent for the delay, there-
for, I conclude that Douglas' reinstatement was unreasonably delayed from Febru-
ary 10 to the date of the Respondent's offer of reinstatement. Except for Douglas, the
others were not affirmatively shown to have been reemployed tardily. For them,
the Respondent's exhibit shows replacements at various dates, but, as previously
stated, the replacement dates shown do not include the terminal date that the new
employee was on the job of a striker. Since this exhibit shows several replacements
34 The job of R. H. Gularte as Vaughn block operator was never filled by a replacement
employee during the strike, but Gularte resigned on January 11, 1961. Striker Jennings
was never replaced as bull block operator Upon Jennings' application to return to work,
he was reemployed as an operator of the Vaughn block (Gularte's former position) at
$2 25 nonincentive rate. The $2 25 rate paid Jennings when reinstated was the going
rate for the job of blockman. Before the strike, Jennings had been on a $2.05 incentive
base rate of pay. It does not appear that after the strike anyone was hired to operate
the bull block. The Respondent's job classification does not subdivide its job category of
blockman to show what kind of block an employee operates. If Jennings' job after the
strike was not identical to his former job, I find it was substantially equivalent. The
position of J. E Douglas was never filled during the strike, but he was not recalled until
sometime around February 20, 1961. He resigned on February 21. The job of striker
J. S. Sampsell was never filled during the strike He returned to his former job on
February 14, 1961. The same is true of striker E. J. Greene. The jobs of dischargees
Kissler and Cook were never filled during the strike. Kissler was rehired on February 14,
1961, and Cook on February 20, 1961.
as The 14 are, with dates of return, which was stipulated to be within 5 days from the
date of the Respondent's notice of recall:
H T Booker_______________ 2/20/61 R E. Winter_______________ 2/27/61
James Douglas______________ 2/20/61 Richard Winter_____________ 2/28/61
Sam Garcia_________________ 2/20/61 J E. Jones_________________ 3/1/61
Christopher Guerra__________ 2/20/61 J A. Robertson_____________ 3/1/61
T D. Rose_________________ 2/20/61 W J Robertson____________ 3/1/61
George Westrope____________ 2/20/61 R. W. Schwartz_____________ 3/1/61
John Clift__________________ 2/27/61 A. L. Holt_________________ 3/1/61
sa I infer that J. E. Douglas (the name used in Respondent's exhibit) is the same as
James Douglas (the name used in the complaint), since there was only one Douglas listed
among the employees.
37The parties stipulated that in each case where the Respondent's exhibit shows the
date of reemployment, this was within 5 days of the date of the Respondent's offer of
employment. I Infer that the same is true for resignations shown for strikers after
February 10, 1961.
TITAN METAL MANUFACTURING CO. 213
for certain strikers, it is obvious that the ones shown on that job eariler than the last
replacement listed must have been removed from the job to make room for the next
one. Because some strikers were returned to their former positions despite the fact
that they were shown to have been replaced (at some date), it is a possible inference,
for want of proof to the contrary, that no replacement occupied the former position
of such returning striker on the date of the latter's offer to return. Hence, it might
be inferred that the last-named replacement for each "replaced" striker ceased to be
employed on the former job of the so-called replaced striker before February 10,
1961. Since the burden is on the Respondent to show that the former positions of
economic strikers are filled at the time those strikers unconditionally offer to return
if it wishes to justify a failure to reinstate, the Respondent should have shown the
terminal date at least of the last replacement for any given striker.
However, in view of the number of new employees retained after the end of the
strike, and in view of figures available showing the approximate complement of the
Respondent's production force, it is mathematically impossible for the former
positions of all returning strikers, in fact, to be vacant on February 10. Ten strikers
were shown by the Respondent as not replaced during the strike. Four of these were
reemployed on February 14 and one-Cook, one of the discharged strikers-was
reemployed on February 20 38 Four others of the ten unreplaced strikers had
resigned before the end of the strike.39 Had the evidence shown the specific jobs
which were vacant on February 10, 1961, my work would have been simplified. How-
ever, as nearly as I can determine, there were about five positions unfilled on Febru-
ary 10 before the return of any strikers. Two more positions became vacant on
February 10 when two replacement employees quit. This means that there were
about seven possible job openings at that time. It is not certain, of course, that the
Respondent needed men for each of the foregoing seven jobs under its production
schedule. I note, however, that between February 10 and 14, 1961, seven former
strikers were given their former or substantially equivalent positions. With subse-
quent vacancies created by terminations of replacement employees, the Respondent
hired more former strikers. Despite the lack of specific details, a consideration of
the total number of replacements in the Respondent's employ on February 10, 1961,
and the number of strikers actually rehired, between February 10 and 14, 1961, leads
me to the conclusion that the Respondent was maintaining approximately its normal
complement of production workers. In some cases, strikers were returned to their
former positions although specific replacements for them continued in the Respond-
ent's employ. If, therefore, such replacements had been on the jobs of those returning
strikers on February 10, 1961, they must have been shifted to other jobs to make room
for returning strikers, and those replacements may then, in turn, have been put on jobs
of unreplaced strikers who had resigned during the strike. In any event, on the
basis of the total number of employees in the Respondent's employ on February 10
and 14, 1961, 1 find that on and after those dates the Respondent had its full comple-
ment of production force, with the one exception of Douglas. Hirings after Febru-
ary 14 may be inferred to be the result almost entirely of newly created openings or
changes in production needs. In fact, the evidence shows that the Respondent was
rehiring strikers at a faster rate than the rate of separations of replacements, for, of
the strikers who had been replaced during the strike, the Respondent had rehired eight
between February 10 and 20, while in the same time there were only five terminations
of new employees. On all the evidence, I find that replacements for all but seven
of the strikers who applied for their jobs back were still in the employ of the Re-
spondent 40 Those seven were returned to their jobs. All other strikers were en-
titled to return only as new employees when jobs were available. Hence, I find no
sa No complaint is made that Cook was tardily reemployed as is the case with dischargee
Richard Winter, who had been replaced during the strike.
31I find no evidence that the positions of two unreplaced strikers (other than Jennings)
were filled in the first 2 weeks after the end of the strike-the jobs of Grass, operator of
small rod straightener on the first shift, and Kleve, pickle rod operator on the first shift
No evidence was offered to show either a need or lack of need for such operators on that
shift.
As previously stated, Jennings , who had not been replaced, returned not on his exact
job but on the job of another striker who had not been replaced but who had resigned
during the strike.
40 The seven for whom there were no replacements on February 10, 1961, are Bailey,
Cook, Douglas, Greene, Jennings, Kessler, and Sampsele. All but Cook were reinstated on
February 14 Cook (one of the dlschargees) was returned to his job on February 20.
The complaint does not list him as one who was tardily returned to his job.
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discrimination by tardy reinstatement as to any of the 14 named in the complaint
except James Douglas, whose job was vacant and yet whose recall was delayed.
Despite the evidence generally prevailing of the Respondent's good faith, it must
nevertheless be held that the Respondent discriminated against James Douglas by
.failing to offer him reinstatement within a reasonable time after his application to
return, since the Respondent offered no evidence that explained the delay. Proof
.of such discrimination does not depend upon a showing of ill will toward Douglas.
Even if an unreplaced economic striker is denied reinstatement through a mistaken
belief as to the law, the denial of reinstatement rights to him has a natural tendency
to interfere with the rights guaranteed to employees by the Act and to discourage
union membership or activity 41 I find, therefore, that by delaying in offering
Douglas reinstatement the Respondent engaged in an unfair labor practice in
violation of Section 8(a) (3) and (1) of the Act.
(2) Failure to reemploy three employees at all
The complaint alleges that the Respondent failed and refused to return to em-
ployment three employees-R. Silva, Ray Teague, and Dale Williams. However,
the Respondent showed that it had given employment to Silva on March 14, 1961,
at the same incentive base pay rate he had had before the strike, although he did
not return to his former job until April 17, 1961; 42 that it had employed Teague on
April 27, 1961, although on a different shift and at a lower base pay incentive rate,
whereas he had been on a nonincentive rate; that Williams had resigned on April 28,
1961, presumably on being offered a job. The Respondent's evidence clearly shows
that Teague was replaced by N. H. Miller from January 16, 1961, to April 18, 1961.
Therefore, he had no right to reinstatement in any event. Since the Respondent
offered reinstatement to all who were not replaced, the three employees listed in
this section had no reinstatement rights. They were entitled only to be treated
without discrimination as applicants for new employment. Obviously, they were
not discriminated against because they were in fact hired. I find no violation of
the Act under this allegation of the complaint.
(3) Reemploying returning strikers at more arduous, less agreeable tasks, on less
desirable work shifts, and at decreased rates of pay
The General Counsel did not name any returning striker who was injured in any
of the ways alleged in this portion of the complaint, and he did not offer any proof
of comparative desirability of jobs or work shifts. Those entitled to reinstatement
were offered their jobs back. Other strikers had no claim to specific jobs or specific
rates of pay.43 I conclude, therefore, that the General Counsel has not sufficiently
proved this allegation of the complaint.
(4) Denying seniority based on prestrike service to strikers
The Respondent's answer has denied each of the alleged unfair labor practices.
That denial includes this allegation. The General Counsel offered no proof that
seniority was denied to those for whom no replacements had been hired during the
strike and who were rehired, and he identified none who had been allegedly denied
seniority unless those coming under allegation (1) above were denied seniority, a
fact not shown. The others, for whom replacements had been hired, were entitled
only to be treated without discrimination in the consideration of their applications
as new employees, without their former seniority.44 I conclude, therefore, that the
Respondent has not unlawfully deprived employees who were entitled thereto of their
seniority.
A' See Rubin Bros Footwear, Inc, 99 NLRB 610, 612-613; Shook h Fletcher Insulation
Company, 130 NLRB 519.
42 Silva's former job of draw bench helper was, at various times, filled by several new
employees, the last one being B. C. Stone, who went on the job on February 6, 1961.
Stone continued in the Respondent's employ until April 19, 1961. Silva was put back
on that job on April 17, 1961
43 Those who got jobs received the prevailing rate for the job. In most cases the pre-
vailing rate after the strike was the same or higher than the prevailing rate before the
strike In some cases the new rate was a lower incentive base rate for a previous flat
nonincentive rate.
44 Bartlett-Collins Company, 110 NLRB 395; Economy Stores, Incorporated, 120 NLRB 1.
TITAN METAL MANUFACTURING CO. 215
C. The refusal to bargain
The Appropriate Unit and the Union's Majority Therein
It is undisputed that the appropriate unit for collective bargaining within the
meaning of Section 9(b) of the Act is composed of all maintenance and production
employees of the Respondent, excluding the office clerical employees, guards, and
supervisors as defined in the Act. It is also undisputed that the Union had, before
the strike, been the collective-bargaining representative of the Respondent's em-
ployees in said unit since December 1957. Even during the strike the Respondent
met with the Union as the collective-bargaining representative.
The sole question is whether or not the Union represented a majority of the
Respondent's employees in the foregoing unit on March 1, 1961, the admitted date
of refusal to bargain. As of March 1, 1961, there were in the employ of the Re-
spondent 19 former strikers and 27 replacements. There is no evidence that any
of the replacements had authorized the Union to represent them. It appears, there-
fore, that the Respondent had good cause to doubt the Union's majority. It follows
that the Respondent was justified in refusing to bargain with the Union on March 1,
1961; 45 so I conclude and find that the Respondent has not refused to bargain within
the meaning of Section 8(a) (5) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and such as have been found to constitute unfair labor practices tend
to lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Since I have found that the Respondent engaged in an unfair labor practice by
delaying, without justification, in accepting the application of returning striker James
Douglas from February 10, 1961, to the date of the Respondent's offer of reinstate-
ment, which is shown only to be sometime between February 21, when Douglas
resigned, and 5 days before that date, I shall recommend that the Respondent make
Douglas whole for any loss he may have suffered by reason of the discriminatory
delay in offering him reinstatement, by paying him an amount equal to that which
Douglas would have earned in the Respondent's employ between February 10, 1961,
and a date 5 days after the date of the Respondent's offer of reinstatement or the
date of Douglas' resignation, whichever was first, less his net earnings elsewhere
during said period.
I shall also recommend that the complaint be dismissed in all other respects.
Upon the foregoing findings of fact and upon the entire record in the case, I make
the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. By discriminating in regard to the hire and tenure of employment of James
Douglas thereby discouraging membership in a labor organization, the Respondent
has committed an unfair labor practice affecting commerce within the meaning of
Section 8(a) (3) and (1) of the Act.
4. The Respondent has in no other way discriminated in regard to the hire and
tenure of its employees nor interfered with, restrained, or coerced them in the exercise
of the rights guaranteed in Section 7 of the Act in violation of Section 8(a),(3) or
{ 1) of the Act.
5. All maintenance and production employees of the Respondent, excluding the
,office clerical employees, guards, and supervisors as defined in the Act, constitute
a unit appropriate for the purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
6. On March 1, 1961, the Union did not represent a majority of the Respondent's
employees in the aforesaid appropriate unit within the meaning of Section 9(a) of
the Act.
15 Jackson Manufacturing Company, 129 NLRB 460
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7. The Respondent has not refused to bargain with the Union within the meaning
of Section 8 (a),(5) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in the case, I recommend that the Respondent, Titan Metal
Manufacturing Co., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Delaying in the reinstatement of returning economic strikers whose positions
are not occupied by replacements on the date of the economic strikers' unconditional
application to return, thereby discouraging membership in a labor organization.
i(b) By any like or related conduct interfering with, restraining, or coercing its
employees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist United Steelworkers of America, AFL-CIO, and United Steel-
workers of America, AFL-CIO, Local 5649, or any other labor organization, to
bargain collectively through representatives of their own choosing, and to engage
in 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 organi-
zation as a condition of employment, in conformity with Section 8(a) (3) of the Act.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Make whole James Douglas in the manner stated in the section hereof
entitled "The Remedy," above.
(b) Preserve and, upon request, make available to the Board or its agents all
payroll and other records in its possession necessary and appropriate for carrying
out the terms of the Recommended Order.
(c) Post at its plant in Newark, California, copies of the notice attached hereto
marked "Appendix." Copies of said notice , to be furnished by the Regional Direc-
tor for the Twentieth Region, shall, after having been duly signed by Respondent,
be posted immediately upon receipt thereof and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, where notices to employees are customarily
posted. Respondent shall take reasonable steps to insure that such notices are not
altered, defaced, or covered by any Other material.
(d) Notify the said Regional Director, in writing, within 20 days from the date
of the receipt of this Intermediate Report and Recommended Order, what steps it
has taken to comply therewith.
It is recommended that, unless the Respondent, within 20 days from the date of
service of this Intermediate Report and Recommended Order, notifies the said
Regional Director that it will comply with the foregoing recommendations, the Board
issue an order requiring the Respondent to take the action aforesaid.
I further recommend that the complaint be dismissed insofar as it alleges any
unfair labor practices other than that herein found.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL make whole James Douglas for any loss he may have suffered by
reason of the delay in offering him reinstatement to the position he occupied
before the strike in the manner recommended by the said Trial Examiner.
WE WILL NOT in any manner interfere with, restrain, or coerce our employees
in the exercise of the right to self-organization, to form labor organizations, to
join or assist United Steelworkers of America, AFL-CIO, and United Steel-
workers of America, AFL-CIO, Local 5649, or any other labor organization,
to bargain collectively through representatives of their own choosing, and to
engage in 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 member-
ship in a labor organization as a condition of employment, in conformity with
Section 8 (a) (3) of the Act.
All our employees are free to become or to remain members of the above-named
Unions or any other labor organization. We will not discriminate in regard to hire
MILLER ROAD DAIRY, A CO-PARTNERSHIP 217
or tenure of employment or any term or condition of employment against any em-
ployee because of membership in or activity on behalf of any labor organization.
TITAN METAL MANUFACTURING CO.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Frederick O. Glass, Joseph E . Glass , Maurice Glass , and Roswell
C. Glass, d/b/a Miller Road Dairy , a Co-partnership and Local
332, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , Ind. Case No. 7-CA-
3180. January 10, 1962
DECISION AND ORDER
On October 5, 1961, Trial Examiner George A. Downing issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices, and recommending that they cease and desist there-
from and take certain affirmative action as set forth in the Intermedi-
ate Report attached hereto. The Trial Examiner also found that the
Respondents had not engaged in certain other unfair labor practices
alleged in the complaint, and recommended that such allegations be
dismissed. Thereafter, the Respondents filed exceptions to the Inter-
mediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Fanning].
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 Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner.'
ORDER
The Board adopts the Recommended Order of the Trial Examiner
with the modification of section 2(g) to read: "Notify said Regional
I As no exceptions were filed to the Trial Examiner's ultimate conclusion that the
Respondents did not engage in unfair labor practices within the meaning of Section
8(a) (5) of the Act by refusing to bargain collectively with the Union , we adopt that
conclusion pro forma and deem it unnecessary to pass upon his subsidiary finding that
the requested unit limited to wholesale drivers alone was inappropriate for collective
bargaining . Nor do we pass upon the Trial Examiner ' s other subsidiary finding that
James Hanna, a bulk-tank driver, was not an independent contractor but an employee in
the unit in which the Union sought representation.
135 NLRB No. 36.