United Elastic Corp.

National Labor Relations Board - Board Decisions

Jun 29, 1949

84 N.L.R.B. 768 (N.L.R.B. 1949)

In the Matter Of UNITED ELASTIC CORPORATION and TEXTILE WORKERS
UNION OF AMERICA, CIO
Case No. 1-0-2864.-Decided June 29, 1949
DECISION
AND
ORDER
On May 19, 1947, -Trial- Examiner Victor Hirshfield issued his
Intermediate Report in the above-entitled -proceeding-, finding that
the Respondent had engaged in and tivas engaging in certain unfair,
labor practices in violation of Section 8 (1), (3), and (5) of the
Act,' and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the Intermediate Report,
a copy of which is attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief, the
Union filed a brief, and the parties argued orally before the Board.
The Board has reviewed the rulings of the Trial Examiner 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 briefs, the oral argument, and
the entire record in the case, and, except to the extent consistent with
the Decision and Order herein, hereby rejects the findings, conclusions,
and recommendations of the Trial Examiner, for the reasons noted
below.
1. On February 19, 1946, the Respondent and the Union entered
into a collective bargaining agreement effective to August 1, 1947,
and automatically renewable for yearly periods thereafter, contain-
ing, inter alia, two clauses relative to strikes and work stoppages.2
1 The provisions of Section 8 (1), (3), and ( 5) of the National Labor Relations Act,
which the Trial Examiner found were violated , are continued in Section 8 (a) (1), (a)
( 3), and (a) (5) of the Act, as amended by the Labor Management Relations Act, 1947.
s ARTICLE VII
It is hereby agreed that the Union will not initiate, authorize , sanction , support
nor engage in any strike , stoppage, or slowdown of work and that the Employer will
not lock out any employee or group of employees, since this agreement provides for
the orderly and amicable settlement and adjustment of any and all disputes , differ-
ences and grievances In case of an unauthorized strike , the Union agrees that it
will loyally and in good faith endeavor to secure a return of the strikers to work to
the end that the dispute may then be settled peaceably in accordance with the
procedure set up herein.
84 N. L. R B., No. 87.
768
,UNITED ELASTIC CORPORATION 769
On the morning of June 19, 1946, certain of the employees covered by
the contract went on strike in protest of an alleged accumulation of -
unsettled grievances, and a general strike developed early in the
afternoon. Later that afternoon the Respondent, when called by a
union representative, refused to discuss anything concerning the
strike until the strikers returned to work .3 By letter dated June
21 the Respondent notified the Union that because the Respondent
viewed the strike as a violation of Article VII of the contract, it was
terminating the contract as of that date. Upon receipt of this letter
on the following day, the Union officially sanctioned the strike, and
on June 24 or 25 set up a picket line around the Respondent's plant,
-which was maintained until September 9. On June 22 and 25, the
Respondent placed advertisements in local newspapers advising the
strikers that it considered the strike a breach of the contract justifying
its termination, and inviting the strikers to return to work "without
loss of rights." On the latter date the Respondent also advised the
Union's representative that it would attend a conference requested
by the Chairman of the Board of Conciliation and Arbitration of
the State of Massachusetts but "would refuse to negotiate or discuss
any matters until the employees went back to work." On the next
day the Respondent advised the individual strikers by letter of this
position, and that "All employees who return to work on or before
Monday, July 15, will do so without loss of status." On July 12
-the Respondent announced a wage increase ,4 and so advised the strikers
by letter, in which it also reiterated its position that it would not
confer with the Union until they were all back at work, and again
urged them to return to work. On August 2, 1946, the Union re-
'quested the Respondent to permit "All employees . . . to return to
s ork on the same job, and with the same conditions then prevailing
when a misuunderstanding took place on June 17, and without dis-
crimination." In reply, by letter dated August 5, the Respondent
denied knowledge of a misunderstanding on June 17 and reiterated
its refusal to "enter into any -discussion until the plant is operating
Footnote 2-Continued.
ARTICLE VIII
Discharge
A. Just cause:
The right to discharge employees shall remain in the sole discretion of the Employer,
except that no discharge shall be made without just cause-just cause to mean, among
other things , inefficiency, insubordination or persistent or serious infiaction of rules
relating to the health or safety of other employees , or of rules reasonably promulgated
by the management relating to the actual operation of the plant, or engaging in a
strike or group stoppage of work of any kind , slowdown strike, sabotage , picketing or
failure to abide by the terms oththis agreement or by the award of arbitration
8 When the union representative informed the strikers of the Respondent 's position at a
meeting with them shortly thereafter, they stated "We are not going back until they
mieet the committee and settle the grievances."
4 Effective as of July 8. '
770 DECISIONS- OF 'NATIONAL; LABOR RELATIONS BOARD
at normal capacity." On August 6, the Respondent sent another letter
to the strikers inviting them to return to work by August 8, and also
advised a union representative who had called in an attempt to dis-
cuss settlement of the strike, that it "was sorry" but it "was not dis-
cussing anything" relating to the strike.- By letter dated September
5. 1946, the Respondent notified the strikers that because they had
not "complied with its requests of June 26 and July 12, 1946, to return
to work . . . your name has been removed from the pay roll as of
July 15, 1946, and your are no longer considered as an employee."
On September 9, the strikers voted to return to work, and the Union
in a letter dated September 10 so notified the Respondent, who took
the position that the strikers had been properly discharged and would
be treated as new employees if they wished to apply for reemployment.
The Trial Examiner found that all the acts by which the Respond-
ent refused to deal with the Union until the strikers returned to
work were unlawful refusals to bargain with the Union in violation
of Section 8 (1) and (5) of the Act, and he enumerates these as (a)
the Respondent's reply to the Union on June 19 that it would not
discuss any matter until the employees returned to work, (b) the
letters of June 26, July 12, and August 5, (c) the newspaper adver-
tisements, (d) the unilateral wage increase, and (e) the continued
solicitation of the striking employees to return to work by supervisory
employees.5 We disagree.
When the strike occurred on June 19, 1946, there was in effect be-
tween the Respondent and the Union a collective bargaining agree-
ment Article VII of which obligated the Union (1) not to "initiate,
authorize, sanction, support or engage in any strike, stoppage, or slow-
down of work," and (2) "in case of an unauthorized strike," to "loyalty
and in good faith endeavor to secure a return of the strikers to work to
the end that the dispute may then be settled peaceably in accordance
with the procedure set up herein." [Emphasis supplied.] Contrary
to the position taken by the Union at the hearing and in its brief, we
find that the work stoppage engaged in by the employees on the morn-
ing of June 19 and which, during the day, developed into a full-
fledged strike, was itself a violation of Article VII of the contract.
The Union's position is apparently predicated on the theory that the
obligations imposed by Article VII devolved not upon the employee-
members of the Union but only upon the Union's officers, particularly
the top officials, directly connected with the contract or the collective
bargain; and that, therefore, because these officials did not initiate the
5 Although not discussed in the Intermediate Report, this apparently is a reference to
the uncontroverted testimony of the Respondentls. personnel manager that ,- at various
times ;during the latter' part of June, and again' In the middle of July, he contacted
individual strikers by telephone in an attempt to get them to return to work.
, UNITED ELASTIC` CORPORATION' ' 771,
work stoppage 'or strike, and knew nothing about it until informed
that the stoppage had occurred, the Union was absolved from any
responsibility so far as the stoppage.or strike was concerned. Under
the Union's theory, its only contractual obligation in these circum-
stances was to "loyally and in good faith" attempt' to get the workers,
to return to their jobs. Such a construction of Article VII is, in our
opinion, unrealistic.
While it is true that Article VII distinguishes between a formally
called strike and an "unauthorized" strike, and while we agree with
the Union that the work stoppage on June 19 and the strike that
followed were, in their inception, "unauthorized" within the meaning
of that term as used in the contract because not initiated or authorized
by official union action, we find that the stoppage and strike nonetheless
constituted a violation of Article VII. That Article VII was intended
to constitute an agreement, binding upon the Union and its employee-
members, not to engage in a strike, work stoppage, or 'slow-dowii,.
whether or not such action was "unauthorized," is made clear when
Article VII is considered in conjunction with Article VIII, which
gives the Respondent the right to discharge employees for "engag-
ing in a strike or group stoppage of work of any kind" [emphasis sup-
plied]. Article VIII was obviously intended to implement the pro-
hibition against strikes contained in Article VII by providing a
specific penalty for engaging in the action prohibited by Article VII.
And since Article VIII makes no distinction between "authorized"
and "unathorized" strikes for.purposes of imposing the penalty, we
think it only logical to conclude that no such distinction was intended
to be applied to the prohibition. If the penalty is all-inclusive, surely
the prohibition from which the penalty steins is likewise all-inclusive.
Clearly, therefore, the import of Articles VII and VIII, when-read
together as they should be, is that they prohibit any type of strike and
similarly render employees who engage in any type -of strike subject
to discharge. The fact that Article VII imposes an additional obliga-
tion on the Union in the event of an "unauthorized" strike certainly
should not be construed to relieve the Union and the employees from
their contractual undertaking not to engage in a strike. Instead it
adds to the Union's contractual obligations by requiring it, in the case
of an "unauthorized" strike, to "loyally and in good faith" attempt to
bring it to an end.
We likewise find that there was a breach of the Union's obligation
under Article VII to "loyally and in good faith endeavor to secure
a return of the strikers to. work." It is true, as pointed out by our
dissenting colleague, that when the union officials learned of the walk-
out an'June 19 they immediately sent Vergados, an ixiternati tial-ilriibh.
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative, to the plant to determine' the causes of the strike, and
that Vergados at that time instructed local union leaders Dumas and
Le Blanc to return to work and to try to induce the other strikers to do
likewise. It should be noted, however, that at this time the strike had
not yet reached its full proportions, and that Vergados' instruction
was only in the nature of a preliminary action to be taken "until the
end of the shift after which they were to report at the union hall."
It was not until. the strikers met with the international union leaders
on the afternoon of June 19 that the strike had reached its full pro-
portions, that the union leaders were fully apprised of the situation,
and that the Union was thus in a position officially to really determine
its course of action.
On that afternoon, and again on each of the following 2 days,
Brown, the area director for the Union, met with the strikers on at
least three different occasions to discuss the strike.6 Brown testified
that he laid plans at this time to persuade the strikers to go back to
work, but it is clear that he did not directly ask them to return to
work at any of these meetings, and that he did not take any other
affirmative action in that direction.' Moreover, so far as the record
shows, no action was taken,at any of these meetings or elsewhere that
could possibly be construed as a disavowal by the Union of responsi-
bility for the strike or an attempt by it to fulfill its obligation "loyally
and. in good faith" to end the strike. We believe that this complete
failure by the Union to attempt to end the strike, or even to renounce
it, during the 3 days following the walk-out, constituted a clear
violation of the Union's obligation under the contract, in the event
of an "unauthorized" strike, to "loyally and in good faith endeavor to
secure a return of the strikers to work." 8 [Emphasis supplied.] In
our opinion, this contractual obligation called for some affirmative
act on the part of the Union during this period.
Thus, on June 21, 1946, the Union was in violation of both of
its obligations under the "no-strike" provision of the contract by
which the parties had agreed to be bound. Moreover, there was no
6 The evidence indicates that there may have been a fourth meeting as well
' Brown testified further that no vote was taken at any of these meetings on the question
of a return to work
8 In finding that the Union ' s course in the 3-day period following the walk -out was
thus one of complete inaction, we have not overlooked the testimony apparently relied
on by the dissenting opinion as the basis for its finding that during this period Vergados
Instructed the local union leaders and key workers to return to work and to attempt to
Induce the other strikers to do the same . Allegedly , this was in addition to the similar
action taken by Vergados on June 19 to which we have already referred we are of the
opinion that this testimony , which was given by Vergados himself , has little probative
value, in view of Vergados ' refusal to name the persons so instructed and his general
vagueness concerning these incidents Nor do we consider general testimony as to
Brown's "laying of plans to persuade the strikers to go back to work" during this period
as the type of action that the contract required
--,UNITED ELASTIC CORPORATION 773
prior breach of the contract by the Respondent that might justify
such a violation. Under these circumstances, and also in view of the
fact that the contract provided for a detailed procedure for adjust-
ing the alleged grievances of the strikers which was intended to be a
substitute for strike action, the Respondent's statutory obligation to
bargain with the Union, at least with respect to matters related to the
strike, was suspended as long as such wrongful strike action con-
tinued.9 In our opinion, the stability of labor relations that the
statute seeks to accomplish by the encouragement of the collective bar-
gaining process ultimately depends upon the channelization of the
collective bargaining relationship within the framework of a collective
bargaining agreement, and the adherence thereto by the contracting
parties. We feel, therefore, that the broad purpose of the statute and
the interests of the parties will best be served by requiring such ad-
herence. A different conclusion would not only militate against the
statutory aim but also ignore the traditional sanctity attached to
contracts by our system of jurisprudence. As the court said in the
Timken case, "If adjudication bases no sanctions on commitments
made therein by the bargaining agent, it imparts futility to a bar-
gaining process hopefully developing in the interest of industrial
peace." We find, therefore, that the Respondent's conduct in refusing
to confer with the Union,10 in dealing with the individual strikers
for the purpose of obtaining their return to work,1' and in instituting
a wage' increase,12 was lawful.
Nor do we believe, as does the Trial Examiner, that the Respondent's
notification to the Union on June 21, 1946, that the contract was ter-
minated as of that date, in any way altered the statutory rights and
duties of the parties. As found above, the Respondent's obligation
to bargain with the Union, at least with respect to matters related
BTemken Roller Beating Co v N L R B , 161 F (2d ) 949 (C A . 6) reversing 70
N. L. R B 500 , Matter of Charles E. Reed & Co., 76 N . L. R B. 548; Matter of Dorsey
Trailers , Inc, 80 N. L R B 478
10 It is true that the Respondent , when telephoned by the Union on the afternoon of
June 19, refused at that time to discuss anything relating to the strike until the strikers
returned to work. In . our opinion, however, the Union 's request to discuss such matters
at that time was premature , and, therefore , did not render the Respondent 's action
unlawful even If the Union was not then in violation of the contract Article VII of the
contract , as contended by the Respondent , clearly envisaged an attempt by the Union, in
case of an unauthorized strike, to secure a return of the strikers to work before the
causes of the strike should be discussed . Clearly, therefore , the Union , which had not
even met with the strikers yet, was in no position to request bargaining with respect to
the causes of the strike or any related matter.
11 Matter of Chat lea E Reed & Co , supra
22 We reach this conclusion because the wage Increase was effected in the midst of the
Respondent 's campaign to secure the return of the strikers to work , and the letter to the
strikers announcing the wage increase also contained a solicitation to return to work.
We are convinced , in the light of these circumstances , that the wage increase was in
reality an inducement to the strikers to return to work, and was, therefore , like 'the
return-to-work solicitations , related to the strike
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the wrongful strike, was already suspended at that time. This
suspension, however, was not dependent on the contract's continued
existence, but grew out of the Union's wrongful action in striking,
and, therefore, continued so long as that action remained wrongful.
And, in our judgment, it was no less wrongful after the Respondent's
notification of the termination of the contract than it was before.
Accordingly, irrespective of whether or not the contract continued
in effect after the Respondent's announced termination thereof, we
find that the Union was still under a continuing duty to correct its
wrongful action before the Respondent's statutory obligation to bar-
gain concerning matters related to the strike. again became operative.13
Inasmuch, however, as all the Respondent's refusals to confer with
the Union, all its solicitations of the individual strikers to return to
work, and its wage increase, preceded any correction of the Union's
wrongful action '14 all this conduct of the Respondent was lawful.
We find, therefore, contrary to the Trial Examiner, that the Re-
spondent's refusals to confer with the Union, its return-to-work
solicitations, and its grant of a wage increase, were not violative of
Section 8 (1) and (5) of the Act.
2. During the course of the strike, the Respondent solicited the
strikers to return to work by means of (a) a newspaper advertise-
ment on June 22, in which it stated that "The Company will welcome
the return of its employees at their usual shifts on Monday, June
25th," (b) another newspaper advertisement on June 25, in which
it stated that "The Company will gladly reinstate any of its employees
without loss of rights," (c) a letter, dated June 26, to each of the
strikers, in which it stated that "all employees who return to work
on or before Monday, July 15, will do so without loss of status," (d)
a letter, dated July 12, to each striker, in which it stated that "the
sensible thing for you to do is to return to work," and promised that
"there will be no discrimination against you either because you are
a member or are not a member of the Union," and (e) a letter, dated
.August 6, to each of the ,strikers, in which it stated that "If,you are
interested in returning at this time, report immediately or call the
office before Thursday, August 8, at 7 a. m." 15 On September 5, the
Respondent discharged all employees who were still on strike."' On
la The legal effect of the announced termination of the contract would be material
here only if the Union had corrected its wrongful action and bad then met with a refusal
by the Respondent to be hound by the contract.
• 14 The first action of the Union that could possibly be found to be such a correction
took place at the August 28 union meeting where, according to the testimony of Brown,
the Union 's area director , he advanced the idea of taking a vote on the question of a
return to work, and "told the workers that it was useless to continue the strike."
15 The Trial Examiner omits any reference to this letter of August 6.
Id This was done in a letter to each striker , which read , "The Company calls your
attention to the fact that you have not complied with its requests of June 26 and July
UNITED ELASTIC CORPORATION 775
September 9, the strikers voted to return to work, and the Union, in a
letter dated September 10, so notified the Respondent .17 • Pursuant
thereto, a large number of the strikers applied for reemployment on
September 13 and 14. Some of those who applied were hired as new
employees at different times thereafter, but many of the applicants
were not offered-reemployment at any'time.Y8 Also not "Offeredreem-
ploylnent at any time were a number of strikers who never made
personal application therefor.
The Trial Examiner found, in substance, that, by offering uncon-
ditional reinstatement to the strikers, the Respondent condoned the
action of the strikers in allegedly breaching the contract, and thereby
waived any right to discharge them that it may have had because of
the alleged breach. Accordingly, he found that the Respondent dis-
charged those strikers who had not returned to work by September 5
and refused to reinstate them on September 12 or 13,19 in violation of
Section 8 (3) of the Act. We disagree.
When the employees struck on June 19,'they were subject to dis-
charge under the specific provisions of Article VIII of the contract.
Moreover, under well-established Board doctrine, the strikers were
also subject to discharge because, as found above, they were striking
in violation of contract 2° It is true, as pointed out by the Trial Ex-
aminer, that we have qualified this right of discharge by holding that
an unconditional agreement by an employer to reinstate such strikers
operates as an effective condonation of the illegal strike, with a con-
sequent waiver of the right to discharge.21 We have even held that a
simple offer of unconditional reinstatement by an employer consti-
tutes a waiver of the right to either discharge or refuse to reinstate
employees who strike in violation of contract 22 In our opinion, how-
ever, there are facts in the instant case which render it clearly distin-
guishable from these prior cases. Thus, the first offer of reinstate-
ment, which was made on June 22, required an acceptance by June
12, 1946 , to return to work. Therefore , your name has been removed from the payroll
as of July 15, 1946 , and you are no longer considered as an employee "
11 This letter read : "This is to inform you that United Elastic workers have voted, at
a meeting held at the Lowell Joint Board, T. W. U. A., CIO, headquarters, Monday,
September 9, 1946, to return to work"
11 There is some controversy over a small group of applicants who the Respondent
contends were offered jobs which they refused , but who the Board contends were either
not offered jobs or were offered jobs other than those held by them prior to the strike
In view of our decision herein, it is unnecessary , however, for us to resolve this
controversy
10 As indicated above, the individual applications for reinstatement were made on
September 13 and 14 rather than on these dates
20 See e. g. Matter of Scullin Steel Company, 65 N L R B. 1294 ; Matter of Joseph
Dyson f Sons , Inc., 72 N. L. R . B. 445; Matter of The Fafnir Bearing Company, 73
N. L. R. B. 1008 ; and Matter of National Electric Products Corporation , 80 N. L. R. B. 995
21 Matter of Carey Salt Company, 70 N. L. R. B. 1099.
22 Matter of The Fafnir Bearing Company, supra.
776 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD
25, and was followed up on the latter date by a promise of no "'loss of
rights" for those who took advantage of it. The second offer, which
took place on June 26, when the first offer had expired, extended the
acceptance date to July 15, and this offer too was supplemented by a
further invitation on July 12 to accede to it. The third and final offer,
which was' made on August 6, set August -8 as the new date by which
the offer of reinstatement should be acted upon. On September 5,.
which was almost a month after the deadline for accepting the Re-
spondent's final offer of reinstatement, the Respondent discharged
those employees who had still not responded to any of the offers. It is
clear that each of the Respondent's solicitations to the striking em-
ployees either set a very definite time limit within which it could be,
acted upon by the strikers, or was a supplementary solicitation which
came within the time limit prescribed by the previous solicitation.
The Respondent's offers of reinstatement, although unconditional with
respect to the retention of all employment rights previously acquired '23
were thus, *contrary to the finding of the Trial Examiner, conditional
offers of reinstatement. Each of -them, including' the last one, had to
be acted upon within its prescribed time limitation, and the failure of
any striker to do so necessarily extinguished whatever rights he may
have acquired by virtue of the offer. Inasmuch, therefore, as the Re-
spondent not only waited until the time had elapsed on the last offer,
but also gave the strikers almost a month more to take advantage of it,
we find'that the Respondent's 'discharge on September 5 of those em-
ployees who•had not abandoned the strike was lawful.24
Nor, as in the case of the Respondent's refusals to confer with the
Union during the pendency of the strike, do we agree with the Trial
Examiner's finding that, the Respondent's announced termination of
the contract on June 21; 1946, nullified any right to discharge the
strikers at a later time for an alleged breach of the contract. This right
of discharge, like the suspension of the Respondent's obligation to,
bargain, already existed when the announcement of the termination
of the contract was made, so as not to be dependent on the contract's
28 And , as found by the Trial Examiner , adhered to by the Respondent when it reem-
ployed those strikers who responded to the offers
24 We do not agree with our dissenting colleague that the Respondent refused to rein-
state the strikers on August 2, 1946 , in violation of Section 8 (3), for the following-
reasons ( a) The Union ' s letter to the Respondent on that date was not , in our opinion,
an application for reinstatement by the strikers, but simply a request by the Union to
bargain concerning the settlement of the strike ; ( b) Even if the letter was such an,
application , it was not an unconditional application so as to impose a legal duty on
the Respondent to reinstate the strikers , being expressly conditioned on "a return to,
work on the same job, and with the same conditions prevailing on June 17" .
and (c) Even if the letter was an unconditional application tui reinstatement, it came'
at a time when there was no outstanding offer of reinstatement by the Respondent that
could be acted upon by the strikers because the July 12 offer had already expired and'
the final offer had not yet been made , and the Respondent could, therefore , lawfully-
refuse reinstatement at that time.
UNITED ELASTIC CORPORATION 777
continued existence. Similarly, this right grew out of the employees'
wrongful action in striking, and, therefore, continued so long as that
action remained wrongful and thus unprotected concerted activity.
And likewise, this action was, in our opinion, as wrongful after the
Respondent's announced termination of the contract as before. Ac-
cordingly, in the absence of a timely response by the strikers to the
Respondent's offers of reinstatement, the Respondent's right to dis-
charge them continued so long as the wrongful action of the em-
ployees was perpetuated, and irrespective of the legal effect of the Re-
spondent's declared termination of the contract.25 We find, there-
fore, unlike the Trial Examiner, that the Respondent's announced
termination of the contract on June 21 did not extinguish the right
it otherwise had to discharge those employees who were still on strike
on September 525
Since the Respondent's discharge of the strikers on September 5 was
thus lawful, it necessarily follows, as contended by the Respondent,
that it was free thereafter to exercise any choice it saw fit with respect
to the reemployment of the dischargees. Accordingly, the Respondent
could also lawfully refuse, as it did, to reemploy some of the dis-
chargees, and to take back others on such terms as it chose to impose.
And inasmuch as there is no evidence that shows that the choice of the
Respondent in this connection was discriminatorily based on the dis-
chargees' participation or non-participation in any protected concerted
activity under the Act, the Respondent did not thereby violate the Act.
In view of the foregoing, we find, contrary to the Trial Examiner,
that the Respondent, by its discharge on September 5 of the strikers
who had not returned to work, and by its refusal to reinstate them on
September 13 or 14, or thereafter, did not violate Section 8.(3) of the
Act.
Since we have found that the Respondent did not violate either
Section 8 (1), (3), or (5) of the Act, we shall dismiss the complaint in
its entirety.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
26 We find it unnecessary , therefore , to determine whether the right established by
Article VIII of the contract to discharge strikers could he validly exercised by the Re-
spondent after what might have been an effective termination of the contract by the
Respondent.
20
Nor do we agree with the Trial Examiner's distinction that the Respondent did not
discharge the strikers because they had violated the no-strike clause of the contract but
rather because they "participated in concerted activities with their fellow employees" and
refused to desert the strike The strike was the violation of the contract , and, therefore,
the violation was necessarily the reason for the discharges , even though the letters of
discharge did not include technical and precise legal language to that effect . Although
the words of art may have been missing, the intent was clear.
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Board hereby orders that the-complaint issued herein against
the Respondent, United Elastic Corporation, Lowell, Massachusetts,
be, and it hereby is, dismissed.
. CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Order.
MEMBER HOUSTON, dissenting :
I must disagree with the conclusion of the majority that the Union
violated the "no-strike" provision of the contract. On the contrary,
proper construction of the record as a whole convinces me that the
conduct of the Respondent-its refusals to bargain, return-to-work
solicitations, and unilateral wage increase, its discharge of certain of
its employees, and its reinstatement of others on such terms as it arbi-
trarily chose to impose-constituted a deliberate effort to escape its
obligation to deal with the representative of its employees.
Although the manner in which collective bargaining is pursued may
be channeled and directed,by collective agreement between parties '21 in
determining whether they have lived up to their bargain, the Board
must be guided by the actual provisions of the contract.28 In this case.
Article VII of the contract imposes two obligations on the Union with
regard to strikes. It provides that : 1. ". . . the Union will not
initiate, authorize, sanction, support nor engage in any strike, stop-
page or slowdown of work . . ." and, 2. "In case of an unauthorized
strike, the Union agrees that it will loyally and in good faith endeavor
to secure a return of the strikers to work." The meaning of these pro-
visions is plain and unambiguous. * Of course, the contract might have
provided that the Union was to act as the insurer of the conduct of its
members, and many contracts do, indeed, contain such a provision.29
But these parties did not so agree. They chose instead to agree specifi-
cally and explicitly that the Union would "not initiate, authorize, sanc-
tion, support nor engage in any strike...." The conclusion of the
majority that the wildcat strike was itself a violation of the contract
by the Union certainly cannot be supported by any provision, express
or implied, in Article VII of the agreement. Nor can that conclusion
be supported, as contended by the majority, by reference to Article
VIII of the contract, which gave the Employer the right to discharge
employees, among other reasons, for engaging in a strike. In recog-
nition of the fact that employees sometimes do not observe agreements
entered into by their bargaining representatives, such contracts often
27 N L R. B v. Reed d Prince Mfg Co , 118 F (2d) 874 (C. A 1)
2s Timken Roller Bearing Co v. N L. R. B., supra.
29 Strikes and Lockouts (Preliminary Draft), U S Department of Labor, Bureau of
Labor Statistics, February 1947, pp. 3-6 Also see in this connection Basic Patterns in
Collective Bargaining Contracts, The Bureau of National Affairs, September 1948, 15: 325.
. UNITED ELASTIC- CORPORATION 779
provide additional obligations and remedies to meet this contingency.
Like no-strike clauses, these provisions also are a matter of affirmative
agreement and vary considerably in form and content.30 In this case,
Article VIII merely provided the Employer with a remedy in the event
that certain employees engaged in a strike. Even conceding that the
Union's commitment that it would not engage in a strike was equally
binding upon the Union members, it does not follow that their breach
of the agreement constituted a breach of the contract by the Union, as
the latter did not bind itself as an insurer or guarantor of their per-
formance of the contract. An agent, by making a contract on behalf
of a principal whom he has power to bind does not thereby become
liable for its nonperformance.31
I can find no-conflict between the Employer's right under Article
VIII to discharge strikers of any kind and the plain meaning of Article
VII that the Union shall be responsible only for authorized strikes.
But even if there were, it is well settled that "When one intention ap-
pears-in one clause in an instrument, and a different, conflicting, inten-
tion appears in another clause in the same instrument, that intention
should be given effect which appears in the principal or more impor-
tant clause." 32 In this contract, it is Article VII which fixes the
responsibility of the Union in the event of a strike. Article VIII
deals with the sepa ;ate subject of discharge for cause and the right
of the Employer to discharge an employee for engaging in a strike
is inserted in Article VIII as the last of a series of other causes for
discharge. It is clear, therefore, that Article VII is the principal if
not, indeed, the only clause dealing with union responsibility for
strikes and that it should, accordingly, prevail. In any event, as the
language of Article VII itself is precise and unambiguous, it should
be given its intended effect 33 I believe that it is well settled that "a
court will not under the guise of interpretation write a new contract
for the parties." w It would seem appropriate and desirable for the
Board to exercise a similar restraint. Otherwise, as the majority has
made possible in this case, collective bargaining agreements are opened
to all sorts-of distortion, and plain language may come to be so twisted
that the value of written contracts becomes highly doubtful.
so Strikes and Lockouts, supra, "Sanctions, Penalties and Remedies for Work Stoppages,"
pp. 17-27. "Penalty clauses as a deterrent to illegal or unauthorized stoppages are often
provided in union agreements. These may apply to the union, to individual workers, or
to the employer . . . Some agreements impose penalties upon the union when unauthorized
strikes occur "
i Restatement of the Law-Agency, Vol. II, Sec. 328.
82 Union Water Power Co. v. Lewiston, 101 Me. 564, cited with approval Williston on
Contracts, Revised Edition, Vol. III, Sec. 624
3° Restatement of the Law-Contracts, Vol. I, Sec. 235.
34 Williston on Contracts, supra, Sec. 620.
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A further serious consequence of this decision is also readily ap-
parent. To find, as the majority have in this case, that the Union
violated its contract by a concededly unauthorized strike, even though
the Union, by the express terms of the contract, assumed only the obli-
gation not itself to engage in a strike, (and there is no independent
evidence by which the Union can be held responsible for the strike
under any principle of agency) is to hold, in effect, that a labor organ-
ization is liable for the acts of its members solely by reason of their
membership in the Union. 35 But both the courts and Congress have
rejected this harsh doctrine; 36 it is quite strange to me that we should
now accept it.
Finally on this aspect of the case, we must be aware that if an
unauthorized strike can be attributed to a union so'simply, and an
employer is permitted thereafter to disregard both his contract and
the representative of his employees by individual dealing with strikers,
then the Board itself has contrived a ready device for dissident em-
ployees and collusive employers to subvert honest collective bargaining.
Of course the real issue is whether the Union failed in its obligation
to "loyally and in good faith endeavor to secure a return of the strikers
to work," and on that issue I believe the evidence is substantial and
convincing that it lived up to its agreement. The unauthorized strike
was an eventuality anticipated by the contract and specifically covered
by its terms. The contract did not provide that the Union would
secure the return of the strikers to work in the event of an unauthor-
ized strike but merely that it would endeavor to do so. Nor did the
contract set forth the specific manner or the specific time within which
this obligation was to be fulfilled. This provision of the contract
must therefore be construed to mean that the-Union would in good
as In this connection see Some Aspects of the Labor Management Relations Act, by
Archibald Cox The Harvard Law Review , Vol LXI, No. 2, p 308, in which a no-strike
clause almost identical to that in the instant case is cited as a means whereby a union
may narrow its contractual undertaking so that it will not be liable for the strike action
of its members as such.
86 United States v White, 322 U S. 694 , 702 (1944 ). See also Hill v. Eagle Glass if
Mfg. Co, 219 Fed. 719 ( C. A 4, 1915 ) revd. on other grounds 245 U. S. 275, Russell if
Sons v. Stampers, 57 N Y . Misc 96 , 107 N Y S 303, 308 (1947 ) ; Segenfeld v Friedman,
117 N Y Misc 731, 193 N. Y S. 128 ( 1922) ; Tannenbaum v. Hofbauer, 142 N. Y. Misc.
120, 253 N. Y . S. 90 (1931 ) , Fife v. Great Atlantic if Pacific Tea Co , 356 Pa . 265, 52 A. 2d
24 (1947)
In discussing the responsibility of a union for unfair labor practices Senator Taft
stated: ". . . I do not think there is anything in the fact that a union is an unincor-
porated association which would bring about a condition in law that the act of every
member is necessarily charged to the labor organization. No ; I think not. (Cong. Rec.
4142, April 25, 1947. ) " I think that the word 'agent ' as used here , [ Sec 8 ( b) ] as used
in the contract section, and as used in other places in the bill , means an agent under the
ordinary rules of agency , an agent of the labor union, the organization, as such. The
fact that a man was a member of a labor union in my opinion would be no evidence what-
ever to show that he was an agent." [Emphasis added ] (Ibid, p. 4561, May 2, 1947.)
UNITED ELASTIC CORPORATION 781
faith make reasonable efforts to secure the return of the strikers to
work and that such efforts would be made within a reasonable time.
The work stoppage on June 19, 1946, surprised both the Union and
the Respondent . Although it is true that at the union meetings be-
tween the time of the work stoppage on June 19, 1946, and the
Respondent 's letter of June 21, 1946, terminating the contract, the
Union failed to order the strikers to return to work, the record does
not support the finding of the majority that there was a "complete
failure by the Union to attempt to end the strike ... during the
three days following the walk-out . . . ." The record reveals that
when the Union learned of the walk-out on June 19 it immediately
sent Vergados , an international union representative , to the plant to
determine the causes of the strike . At that time , and also on June
20, in accordance with instructions from Brown, the area director for
the Union , Vergados not only instructed the local union leaders to
return to work but also instructed them to induce the strikers to go
to work.37 Furthermore , from June 19 to June 22 or 23, Vergados
urged the key workers to return to their jobs. Brown 's omission at
the union meetings to direct the strikers to return to work must be
construed in the light of the surrounding circumstances . It becomes
readily explainable and warranted by an inquiry into the causes of
the unrest in this plant.
The record shows that the strike was caused by an accumulation of
unsettled grievances and, as is generally true of wildcat strikes, was
attended by strong emotions . When Vergados told the union stewards
to return to work and to direct the other strikers to return to their
jobs, he was advised, as noted by the Trial Examiner , that "feeling
was running too high in the plant at that particular time, and they
were quite sure that the people would not return to work." Vergados
nevertheless directed them to remain in the plant until the end of
the shift and then report to the union hall . The strike spread, how-
ever, from two departments to the entire plant. Brown thereupon
telephoned Richards, who refused to discuss anything with Brown
until the employees returned to work. Brown nevertheless told Rich-
ards that he would try to find out the cause of the trouble and would
call Richards back. In reply to Richards ' reiterated refusal to dis-
cuss any matter with the Union until the employees were back at work,
Brown stated that he would telephone Richards in any event. At a
meeting of the strikers Brown learned of their grievances . When he
reported that the Respondent would not meet with him the employees
refused to return to work . Brown thereafter made repeated unsuc-
" The Trial Examiner mentions only the first part of this instruction.
853396-50-vo1 84-53
782,, DECISIONS OF NATIONAL,, LABOR , RELATIONS BOARD
cessful efforts to reach the Respondent before the latter's abrogation
of the contract on June 21.
The Union's conduct, in these circumstances, cannot be described, as
my colleagues have insisted, as a "complete failure . . . to at-
tempt to end the strike . . ." Oil the contrary, it was genuinely
reasonable. Surprised by the strike and without any knowledge of
its causes, its immediate action, through Vergados, was to order the
men back to work. Although they failed to do so, it continued to urge
the most influential workers to return to their jobs. Furthermore,
Brown testified that although he did not specifically direct the strikers
to return to work at the union meetings between June 19 and June 21,
he had laid plans to persuade the strikers to go back to work.38 The
Union's efforts did not rest there. It attempted to inform itself more
fully so that it could, intelligently, and with some prospect of success.
persuade the employees to return. As part of this process it was natu-
rally appropriate that it should at least speak to the Respondent. As
previously noted, the unauthorized strike was a situation envisaged
by the contract and expressly covered by its terms. The Union was the
bargaining representative of the Respondent's employees and not only
had not violated its contract but was, rather, attempting to fulfill its
obligations under the contract. In these circumstances the Respond-
ent was bound not to interpose arbitrary obstacles to the Union's efforts
but to facilitate them by conferring with the representatives of its em-
ployees. Surely it cannot be said that so general a provision of the
contract precluded all liaison between the parties unless the Union's
efforts were successful. Yet the Respondent repeatedly refused to
discuss anything with the Union, adamantly insisting that the em-
ployees must first return to work, although the contract merely pro-
vided that the Union would endeavor to secure their return, and even
though the Union was attempting in good faith to fulfill this obliga-
tion. The Respondent, by its intransigeant attitude so'-goaded the
strikers as effectively to frustrate the Union's efforts to get them back
to work. In this situation any abrupt command by the Union to the
strikers at that time to return to work would have been futile and might
have resulted in arousing in the strikers a distrust of the Union, less-
ened its influence with the strikers, and weakened its ability to per-
suade them at a later date to return to work. In the face of these
realities, it cannot be said that a delay of 2 days in the execution of the
Union's plans was not a sound exercise in good faith of its discretion,
33 In explanation for his omission at the meetings to order the strikers back, Brown
testified that "they were in no frame of mind to accept that kind of instruction. I felt
it would be better to work with the stewards and local officers in an attempt to get them
to change their minds about their determination to stay out of the plant."
'UNITED. ELASTIC CORPORATION 783
and a fulfillment of its contractual obligation at that point. Signifi-
the Respondent itself admits that when it abrogated the con-
tract on June 21, it did not know or attempt to find out whether the
Union was making an attempt to persuade the employees to go back to ,
work, failing even to answer the Union's telephone calls. The mandate
of the Act that parties bargain in good faith has rarely been flouted
with such capriciousness. These facts convince the that the Respond- -
ent quickly used what it considered a technical right to relieve itself
of its obligation to bargain. Unlike the Tirnken case,39 there was in
this case no mere exercise in good faith by the Respondent of a right to
stand pat on a collective bargain.40 By its abrupt termination of the
contract, its adamant refusals to meet or talk with union represent-
atives, and its subsequent conduct in dealing with the strikers, the
Respondent indicated a resolve to avoid the representatives of its
employees. This it could not lawfully do.
Coming now to the discharges of the striking employees, I must
note here, as I have recently in my dissenting opinion in Matter of
National Electric Products Corporation 41 that employees who strike,
in violation of a contractual commitment not to do so do not forfeit
their right to reinstatement if the strike grows out of the unfair labor
practices of their employer. In that event, in my judgment, they
cannot be denied, upon proper application, the right to be returned.
to work without discrimination. It is true that in this case the em-
ployees originally engaged in a wildcat strike and that such precipitate
action, although readily understandable in cases of extreme provoca-
tion by employers 41 is not to be condoned or encouraged. Granted
the original lack of wisdom in their action, I' cannot find a reasonable
basis for permitting this Employer to refuse to reinstate them when
ae Hatter of Timken Roller Bearing Co. V. N. L R B., supra.
90 The Timken case , cited by the majority in support of its finding that the Respondent
was excused from its statutory obligation to bargain with the Union , is clearly distin-
guishable from the instant case and , in fact,supports a contrary conclusion. In the
Timken case the union was striking in violation of a. no -strike agreement and was resorting
to the use of economic force to compel a change in the terms of the contract although the
contract itself provided procedures for the resolution of differences under the contract.
In that case the employer insisted on the union 's compliance with the provisions of the
contract. In the case before us the Union had not violated its contract , as it had not
authorized the strike , and the Respondent , by its failure to allow the Union a reasonable
time to attempt to persuade the strikers to return to work , prevented compliance with
the contract . Like the union in the Timken case, the Employer here resorted to the use
of economic force to exact , in effect, a change in the terms of the contract regarding a
matter already covered by its terms-namely, the actual return of the strikers to work
although the contract provided that the Union was merely to endeavor to secure their
return. Whereas the employer in the Timken case insisted on the performance of the -
contract , here the Respondent unlawfully attempted not only to alter the contract but
actually terminated it.
41 80 N L R. B , No. 151.
41 See a reference to this possibility in Chairman Herzog's concurring opinion in the
National Electric Products Corporation case, supra.
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they applied unconditionally on August 2, 1946, to return.43 Certainly
no such basis exists in the fact that the employer solicited them- to
return after it had abruptly terminated the contract by which their
employment relationship was safeguarded, and thereby violated its
obligation to deal with their representatives. Having prolonged the
strike by its illegal termination of the contract, the Respondent may
not now refuse them reinstatement. By doing so it unlawfully dis-
criminated against them.44
But even if I admitted, for argument's sake, that the Respondent
might have lawfully terminated the employment of these strikers,
I would have to find that they were discriminatorily discharged. The
status of strikers as employees is not automatically terminated because
they strike in violation of their agreement not to do so. Such status
may be terminated by affirmative and timely action of their employer.45
But the Respondent did not choose to exercise that right. On the
contrary, it chose instead .to abrogate its contract and immediately
thereafter to urge and solicit all striking employees to return to work.
As noted by the majority, the Board has held that a simple offer of
unconditional reinstatement by an employer constitutes a waiver of the
right to discharge .4e The majority has attempted to distinguish the
instant case from prior cases on the ground that here the offers of
reinstatement were conditional. But I believe the evidence cannot be
taken to support that view. The record shows that in its newspaper
advertisement of Saturday, June 22, 1946, the Respondent advised
all the strikers that "The Company will welcome the return of its
employees at their usual shifts on Mon., June 24th." I am unable to
perceive wherein this statement is in any way a "conditional" offer
of reinstatement. June 24 was the next regular workday and the
insertion of this date would here clearly appear to be descriptive rather
than conditional. That the Respondent's offer of June 22 was not a
conditional offer is further borne out by its newspaper advertisement
of June 25 in which, without limitation, the Respondent stated that
41 As noted by they Trial Examiner , the Union wrote a letter to the Respondent, dated
August 2 , 1946 , in which it "urge [ d] that all employees be allowed to return to work
on the same job, and with the same conditions then prevailing when a misunderstanding
took place on June 17th , and without discrimination," and attached "a list of all United
Elastic employees , members of our Union , who are available to return to their jobs."
44The instant case graphically illustrates the fallacy of the majority 's contention in
the National Electric Products Corporation case, supra , that the administrative processes
of the Board obviate any necessity for employees resorting to a self -help in the face of a
no-strike agreement even where, as in that case , an employer has committed an unfair
labor practice . Followed to its logical conclusion, where, as here, the employer is guilty
of a refusal to bargain , such a rule would compel striking employees to abandon their
bargaining representative before returning to work while the employer would be permitted
to enjoy the fruits of his wrongdoing pending a determination of the issue by the Board.
It is interesting to note, in this connection , that the amended charge in this case was
filed on September 26, 1946 '
" Matter of The Fafnir Bearing Company , supra; Matter of Dorsey Trailers, Inc., supra.
46 Matter of The Fafnir Bearing Company, supra.
UNITED ELASTIC CORPORATION 785
"The Company will gladly reinstate any of its employees without loss
of rights." [Emphasis added.] Even were the advertisement of
June 22 to be construed as being conditioned on its acceptance by
June 24, the advertisement of June 25 was a categorical and uncondi-
tional offer of reinstatement which would constitute a waiver of such
previous condition. Although offers of reinstatement subsequent to
those in the newspaper advertisements of June 22 and June 25 may
have been conditioned on their acceptance by specific dates, these offers
were kept open by the Respondent's letter of August 6, 1946, at least
until August 8, 1946. In none of the Respondent's offers was there
any express or implied indication that the dates mentioned would
operate as a cut-off point of their employment status and that a failure
to accept the offers within the times specified would operate as a dis-
charge. As a matter of fact, the Respondent made no affirmative effort
to discharge the strikers until September 5, 1946. It is clear, there-
fore, that in fixing acceptance dates in its later offers of reinstatement
the Respondent was merely using a tactical maneuver to induce the
strikers to abandon the strike and return to work.47
The Union made a timely acceptance of these offers when by its
letter of August 2, 1946, to the Respondent it urged that all employees
be allowed to return to work. This was not a request to bargain, as
alleged by the majority, but an unconditional acceptance of the very-
offer of the Respondent, and was no less so by reason of having been
made by the strikers through the Union, which was their lawful
representative.4s To hold that the striking employees, although not
discharged, had to return individually would be to encourage the
Respondent in its design to discredit the Union and avoid its obligation
to deal with the representative of its employees.
These considerations convince me that the Respondent violated
Section 8 (1), (3) and (5) of the Act.
INTERMEDIATE, REPORT
Mr. Robert E. Greene, for the Board.
Mr. Ben Wyle, of New York, N. Y., for the Union.
Messrs. Edwards & Angell, by Mr. William C. Waring, Jr., and Mr. Edward T.
Richards, of Providence, R. I., for the Respondent.
STATEMENT OF THE CASE
Upon an amended charge duly filed on September 26, 1946, by Textile Workers
Union of America, CIO, herein called the Union , the National Labor Relations
47 In this connection see Matter of Majestic Manufacturing Company, 64 N. L. R. B.
950; Matter of General Motors Corporation , 67 N. L. R. B. 965; Matter of Rockwood Stove
Works, 63 N . L. It. B 1297; Matter of Indiana Desk Company, 65 N. L. It. B. 76 ; Matter
of Roanoke Public Warehouse, 72 N. L. It. B. 1281.
8 Matter of Rockwood Stove Works, supra.
786 DECISIONS OF'.NATIONAL LABOR, RELATIONS BOARD
Board, herein called the Board, by its Regional Director for the -First Region
(Boston, Massachusetts), issued its complaint dated December 16, 1946, against
the United Elastic Corporation, herein called the Respondent, alleging .that
the Respondent had engaged in and was engaging in unfair labor practices within
the meaning of Section 8 (1), (3), and (5), and Section 2 (6) and '(7) of the
National Labor Relations Act 49 Stat. 449, 'herein called the Act. 'Copies of the
complaint together with notice of hearing thereon were duly served upon the
Respondent and the Union. -
With respect to the alleged unfair labor practices, the complaint alleged in
substance that since June 19, 1946, the Respondent had refused to bargain in
good faith with the Union, although the Union since September 12, 1945, has
been the exclusive representatives of all the Respondent's employees in an
appropriate unit ; that the Respondent had, while its employees were on strike
during the period beginning June 19, 1946, and ending on or about September
10, 1946, by means of personal contact with them as well as by means of tele-
phone calls and letters, attempted to persuade, and in some instances did per-
suade, such employees to desert the cause of the Union and to return-to work,
despite the pendency of the strike and the existence of the Union as the exclusive
representative of the said employees for the purpose of collective bargaining;
and that the, Respondent discharged, certain named i employees on September
5, 1946, and had refused to reinstate them since on or about September 10, .1946,1
because of the prior refusal of these employees to coniply with the Respondent's
demand that they desert the cause of the Union and return to work during the
pendency of the strike upon which they were then engaged.
The Respondent's answer denied that the Union was the exclusive representa-
tive of its employees as alleged in the complaint, or that it had committed any
unfair labor practices.
Pursuant to notice, a hearing was held at Lowell, Massachusetts, from Janu-
ary 20 to 27, 1946, inclusive, before Victor Hirshfield, the undersigned Trial
Examiner, duly designated by the Chief Trial Examiner. The Board, the Re-
sijondent, and the Union were each represented by counsel, and all participated
in the hearing. Full opportunity to be heard, to examine and cross -examine wit-
nesses, and to introduce evidence bearing on the issues was afforded all parties.
A motion to dismiss at the conclusion of the Board's case, made by the Respond-
ent, was denied.
At the conclusion of the taking of testimony the parties argued orally, and
thereafter the Board's counsel moved to amend the complaint to conform to the
proof as to nonsubstantive matters. The motion was granted. Briefs have been
filed with the Trial Examiner by counsel for the Board and the Respondent.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
-The•Respondent is a Massachusetts corporation operating plants in that Com-
imonwealth• at Hampton, East .Hampton, Littleton, and Lowell, as well as other
plants at West Haven, Connecticut, Stewart, Virginia, and Montgomery, Ala-
bama. While the principal office of the corporation' is located at at Hampton,
1 A large number of employees who had been on strike indicated their desire to return
to work on September 12 and 13, 1946. - Apparently the date, September 10, 1946, is an
error.
UNITED ELASTIC CORPORATION '787
it is with the plant at Lowell, Massachusetts, that the facts brought out at the
hearing are principally concerned. At the Lowell plant the Respondent is en-
gaged in the manufacture, sale, and distribution of elastic' webbing. The prin-
cipal raw materials used in the manufacture of such webbing are cotton, rayon
yarns, and rubber thread, annual 'purchases of which raw materials' by the
Respondent for use in its Lowell plant exceed $650,000. Approximately 60 per-
cent of these purchases is received by the Respondent from a point outside the
Commonwealth of Massachusetts. The value of the products annually manu-
factured and sold from this plant exceed $1,200,000, and approximately 90 per-
cent of these finished products is shipped to points outside the Commonwealth
o Massachusetts.
Upon the basis of the foregoing findings of fact, and upon a stipulation to that
effect entered into between the parties, the undersigned finds that the Respond-
ent is-engaged in commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
Textile Workers Union of America; affiliated with the Congress of Industrial
Organizations, is a labor organization-admitting .to membership employees of the
Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain 2
1. The facts
(a) Background
On September 12, 1945, the Board issued a Consent Determination of Repre-
sentatives, designating the Union as the collective bargaining representative for
the Respondent's employees in an appropriate unit in the Lowell plant, after
the Union had won a consent election conducted by the First Region of the Board.
On February 19, 1946, the Union and the Respondent entered into a collective
bargaining agreement.
The agreement contained the following clauses, both of which have pertinency
to the facts to be discussed.
ARTICLE VII.
It is hereby agreed that the Union will not initiate, authorize, sanction,
support nor engage in any strike, stoppage, or slowdown of work and that the
Employer will not lock out any employee or group of employees, since this
agreement provides for the orderly and amicable settlement and adjustment
of any and all disputes, differences and grievances. In case of an unauthor-
ized strike, the Union agrees that it will loyally and in good faith endeavor
to secure a return of the strikers to work to the end that the dispute may
then be settled peaceably in accordance with the procedure set up herein:
ARTICLE VIII.
Discharge
A. Just Cause :
The right to discharge employees shall remain in the sole discretion of the
employer; except that no discharge shall be, made without just cause-just
9 The findings as to the facts herein are based on testimony or other evidence which was,
for the most part uncontradicted Where such contradictions occurred that fact will be
noted and, where material, a finding with respect to such contradictions will be made.
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cause to mean, among other things, inefficiency, insubordination or persistent
or serious infraction of rules relating to the health or safety of other em-
ployees, or of rules reasonably promulgated by the management relating to
the actual operation of the plant, or engaging in a strike or group stoppage
of work of any kind, slowdown strike, sabotage, picketing or failure to abide
by the terms of this agreement or by the award of arbitration.
(b) The stoppage
On -June 19, 1946, the workers on the first shift in the covered rubber depart-
f•mentland the weave room, upon lreturning'from their regular lunch` period at
10: 30 a. in., refused to resume work. These two departments are the backbone
of the plant, and a''majority of all the employees work in these two
-:departments.'
At the time of the stolpage, Albert-Richards, superintendent of the plant,
was holding a meeting in the plant, office with his foremen and overseers. An
assistant foreman, Arthur Longtin, telephoned Elmer McIntosh, overseer of
''the covered rubber department, who was present at the meeting, and informed
him, that the employees in the two departments were not at work. McIntosh
reported this fact to the meeting, and Richards sent McIntosh and Arthur B.
Whitney overseer of the weaver department,'to investigate.
McIntosh went to the covered rubber department and found that all of the
employees had ceased work. He talked to Charles LeBlanc, president of the
local union, and John Harriman who was the steward for the department.'
LeBlanc told McIntosh that the stoppage had come about because the company
had not settled grievances and because there were some people in the department
who were underpaid. He asked McIntosh whether lie had called union head-
quarters, and was told by the latter that he thought Richards was calling the
Union. When he returned to Richards' office McIntosh was informed by Rich-
.ards-that the latter had not called the Union, whereupon he immediately returned
,to, LeBlanc and reported that fact to him. LeBlanc then telephoned Hugh
Brown, the area director for the Union, at union headquarters.
At about the same time Whitney, the overseer of the weave department talked
to Adelard Dumas, the steward of that department, and was informed by the
latter that the cause of the stoppage was that the "office had refused to meet
with the Union." Whitney reported this to Richards.
Brown, having been advised of the stoppage by LeBlanc's telephone call, im-
mediately sent Louis Vergados, his assistant, to the plant. Upon his arrival
there Vergados spoke to LeBlanc and Dumas.
According to Vergados, the two stewards informed him that the stoppage had
been caused by an accumulation of grievances. Vergados told Dumas and
LeBlanc to return to their departments and go back to work, and to report at
the Union's office with the employees concerned at the expiration of their shift
at 2:30 p. m. that afternoon. Dumas and LeBlanc told Vergados that "feeling
was running too high in the plant at that particular time, and they were quite
sure that the people would not return to work." Vergados instructed LeBlanc
a As of June 19, 1946, there were 89 employees in these departments as compared to a
total' employment of 142.
4 Neither LeBlanc nor Harriman testified 'at the hearing, and the findings herein as to
what occurred between McIntosh and LeBlanc and Harriman are based on the former's
uncontradicted testimony. '
UNTIED ELASTIC CORPORATION 789
and Dumas to stay in the plant in any event until the end of the shift after
which they were to report to the union hall'
In the meantime, Superintendent Richards conferred with Stanley Conant,
manager of the Conant Houghton Division of the Respondent,' and other'od-
cials. It was decided that a statement would be read to the employees by Rich-
ards at 2: 30 p. m. of that day.
At 2: 32, Richards read the following statement:
I am not here for the purpose of discussion, merely to, make a statements
I wish to advise you that the mill will remain open for those who wish
to work.
Those who continue to refuse to work must leave the plant at once.
For your benefit I want you to know that this work stoppage is in viola-
tion of the contract. Furthermore, if you continue to remain here without
working, you are guilty of violating the civil law of trespassing on,private
property.
I want you to know that I do not know what this is all about, and when
I find out I shall make a decision at the proper time.
I wish to repeat :
1. This mill will remain open for those who want to work.
2. Those of you who wish to continue this unauthorized stoppage must
leave` the plant.
3. I will give you twenty minutes to make up your minds ; whether to go
back to work for the remainder of the shift, or if your shift is now over to
start to work tomorrow morning.
4. Send your decision to my office within twenty minutes. [ Emphasis
added.)
Shortly after this statement was read, most of the employees left the plant,
and a large number of these went to union headquarters.
Most of the employees bound for union headquarters arrived there about 2: 45
p. in. Brown, after finding that employees from other departments in addition
to those from the weave room and the rubber room were in the union hall,
inquired from Vergados why those other workers were also present. Vergados
replied that he did not know what it was all about. Upon questioning the work-
ers, Brown found that almost all the employees from both shifts ^' were coming
into the hall. Brown then went into his office and telephoned Richards. Rich-
ards told Brown that he would not discuss anything with him until the em-
ployees returned to work. Brown nevertheless told Richards that he would talk
to the employees, find out what the trouble was, and call Richards back. The
latter declared that he would not discuss any matter with the Union until the
employees were back at work, to which Brown replied that he would call Rich-
ards in any event. I • r ,
S Katherine Merrill, a cleaner and sweeper in the employ of the Respondent, and later
quite active in personally soliciting the' return to work of some 30 striking employees;
testified_ that she heard Vergados say to LeBlanc at this time; "Now you started it,, stick
it out I'll see you this afternoon at the union hall ." She testified that this was the
only part of the entire conversation between the two men that she heard, since they were
talking "easy " The undersigned does not make any finding as to the significance of
the alleged remark since it admittedly was only one sentence of the entire conversation
between the two men.
The Lowell plant is part of the Conant Houghton Division.
7 There were two,shifts operating , at this time.
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brown met with the workers and asked them to tell him their grievances.
Brown then reported that the management would not meet with him, whereupon
one of the workers arose and declared, "We are not going back until they meet the
committee and settle the grievances." Brown then asked the assembled em-
ployees, "Is that what you want?" The answer from the employees was "Yes."
Brown testified that lie "laid plans to persuade them to go back," but did not
directly ask the striking employees to go back to work immediately.
After the meeting Brown tried to telephone Richards and Conant but was
unable to reach either of them. Another meeting was held at the union hall on
June 20 and a third meeting was held on June 21. It is clear that Brown did not
directly ask the employees to return to work at any of these meetings:-' In the
meantime, Brown had again endeavored to reach Conant and Richards by phone
on June 20, but without success.
On June 21 the Respondent wrote a letter to the Union'which read as follows :
Mr. EMIL RIEVE,
General President, Textile Workers Union of America,
15 Union Square, New York 3, New York.
DEAR SIR: On Wednesday, June 19, 1946, a sit down strike and work stop-
page took place on the first shift in several departments at our Lowell plant.
Since then this action has developed into a strike in several departments
which has continued to date.
This action is in violation of Article VII of an agreement entered into on
the 19th day of February, 1946, by and between UNITED ELASTIC COR-
PORATION, Conant Houghton Division, Lowell, Massachusetts, and the
TEXTILE WORKERS UNION OF AMERICA (C. I. 0.).
The Company hereby notifies you that the contract is terminated as of this
date.
Yours very truly,
UNITED ELASTIC CORPORATION,
• CONANT HOUGHTON DIVISION,
STANLEY F. CONANT,
Manager.
Copies of the letter were, sent--to Brown and to Mariano Bishop,'the- Northern
Cotton, and- Rayon Director of, the Union, as well as to Emil Rieve, General
President of the Union.
(c) The strike
Upon, receipt of this letter-Brown telephoned Bishop and it was agreed -between
them that the strike which up to that point had been unauthorized, should be
"sanctioned" by the Union, and that, a picket line should be set up around the
Respondent's plant: Such a picket' line :was in fact established on June 24 or
June 25, 1946, and was maintained until September 9 of the same year.
Prior to the establishment of the picket line, the Respondent placed-an adver-
tisement in the local newspaperion June 22, which read as follows : '
To the Employees of United Elastic` Corp., Conant Houghton Div., Lowell,
On June 19„ 1946, a sit down strike occurred in several departments on the
first shift. This dater developedi into a, strike of the employees of these
several departments.
Up to this time the company has received no official, communication from
the union relative to this situation. THIS ACTION IS IN DIRECT VIOLA-
UNITED ELASTIC- CORPORATION 791
TION OF THE AGREEMENT. SIGNED ON FEB. 19, 1946, BY OFFICIALS
OF THE COMPANY AND THE UNION.
THE COMPANY WILL WELCOME THE RETURN OF ITS EMPLOYEES
AT THEIR USUAL SHIFTS ON MON., JUNE 24th.
- UNITED ELASTIC CORP.,
CONANT HOUGHTON Div.,
ALBERT RICHARDS,
[Capitals in original.] - Superintendent.,
Another. advertisement -appeared in the local newspapers on June 25. In 'sub-
stance the Respondent'informed its employees in this advertisement that it had
terminated the contract and gave its reasons for doing so. This advertisement
concluded with the statement that :
The Company will gladly reinstate any of its employees without loss of
rights.
On June' 25 the Respondent received a telegram from Charles H. Cole, chair-
man of the Board of Conciliation and Arbitration of the State of Massachusetts
requesting that it attend a conference on Thursday, June 27, to discuss the strike.
Bishop had telephoned the attorney for the Respondent on June 25, and had been
informed by the latter that he would attend the conference, but that "the Com-
pany would refuse to negotiate or discuss any matters until the employees went
back to work." The Respondent advised the strikers in a letter dated June 26,
1946, of this position and stated that :
All employees who return to work on or before Monday, July 15, will do
so without loss of status.
The State Board recommended that "the employees return to work under the
conditions and the contract prevailing at the time they went out, and thereafter
the grievances and differences would be discussed . .' . and seniority- rights
would be maintained." The-Respondent refused to agree to these conditions, and
steadfastly maintained the position enunciated by its attorney to Bishop.
On July 12 the Respondent announced to its employees that it was increasing
wages by 8 cents an hour effective as of July 8. It is admitted that this wage
increase was entirely unilateral, there having been no mention or discussion-of it
with the Union. The following letter in which the increase was announced was
sent to all employees still out' on strike :
JULY 12,1946.
To our employees:
The Company acted in good faith when, it negotiated and signed the
contract with you and your Union. In this contract you and the Union
guaranteed the Company that there-would be no sit downs or strikes. You
and your Union broke, this guarantee by a sit down and a strike. The
Company, therefore, has terminated the contract.
Regardless of what anyone may tell you, the Company will not discuss any
matter with the Union until you are all back to work.
There will be no discrimination against you either because you are, a
member or are not a member of the Union.
You will not be required by the Company to remain a member of the
Union to hold your job. -
No Union dues will be deducted from your wages.
The, Conant Houghton - Division has raised the wages, of - all employees
8 cents per hour, effective July 8, -1946. : - - - I,-
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
You are losing wages unnecessarily and without justification. The
sensible thing for you to do is to return to work. [Emphasis added.]
On August 2 Brown wrote Richards asking the Respondent to permit "all
employees ... to return to work on the same job, and with the same con-
ditions then prevailing when a misunderstanding took place on June 17, and
without discrimination."
The Respondent replied to Brown in a letter dated August 5, which, in
substance, read as follows :
Regarding your letter 'of August 2, 1946, would state that we have no
knowledge of a "misunderstanding which took place on June 17."
In spite of many instances of intimidation and threats on the part of your
group, a number of those who went out on June 19 have returned to their
jobs without any discrimination.
In addition to their regular wages they have received the general increase
of 8¢ per hour which had been announced as effective on July 8, 1946.
Our employees all know that the plant is open and in operation. They
also know that the contract has been voided after it was broken with your
knowledge and consent.
The Company's position remains unchanged. The Management will not
enter into any discussion until the plant is operating at normal capacity.
On August 28 the Union held another meeting at which a vote was taken on
the question as to whether or not the strikers should return to work ; the vote
was in the negative.
On September 5, 1946, the Respondent wrote another letter to those of its
employees who were still on strike. That letter follows, substantially in full:
The Company calls your attention to the fact that you have not complied
with its requests of June 26 and July 12, 1946, to return to work. Therefore,
your name has been removed from the Payroll as of July 15, 1946, and you
are not longer considered as an employee.
You are not covered by the Group Insurance plan at present. If you are
re-employed by Sept. 15, 1946, you will be reinstated as of date of reem-
ployment.
New employees are being-hired and require locker space. Please arrange
to call at the plant to remove the contents of your locker.
If you wish to be considered for reemployment, telephone Mr. Andrew
Jenkins for an appointment for an interview.
On September 9 the striking employees, by secret ballot, voted to, return to
work, and the Union, in a letter dated September 10 so notified the Respondent.
The Respondent thereupon took the position that the employees had been
properly discharged and if they wished to apply for reinstatement, they would
be treated as new employees. A large number of the strikers applied for reem-
ployment on September 13 and 14. A number of those who applied for work
were rehired as new employees but many of the returning strikers were not
offered reemployment.
2. The contentions of the parties as to the refusal to bargain
(a) The Board's contentions
It is the 'contention of the Board that a series of grievances which were the
cause of the stoppage on June 19 while not alleged' to be unfair labor practices,
UNITED ELASTIC CORPORATION 793
were nevertheless demonstrative of such a course of action on the part of the
Respondent as would show that it violated both the "letter and the spirit" of
the contract. In its brief the Board argues that "it cannot be denied that they
(the grievances ) at least show a most cavalier attitude on the part of the
Respondent with regard to its duties under the contract and under the National
Labor Relations Act to bargain collectively ..."
The Board further contends that the speech made by Richards at 2: 30 p. m.
on the day of the stoppage "was highly provocative and was 'certainly instru-
mental in bringing about the total cessation of operations ." The Board then
goes on to argue that Brown used his best efforts as required by the contract
to get the employees back to work , that the termination of the contract by the
Respondent was a breach of the contract , and that the Respondent had violated
Section 8 (5) of the Act by the conduct of Richards in his conversation with
Brown on the afternoon of the strike , by its letter of June 26 and July 12, and
by the admittedly unilateral general wage increase granted to its employees
on July 8.
Finally the Board contends that the letter of August 5 addressed to all the
employees who were then out on strike and soliciting their return to work,
the advertisements in the newspapers described in the preceding section, and the
stipulated fact that supervisory employees solicited the striking employees to,
return to work, were all violations of Section 8 (5).
(b) The Respondent 's contentions
The Respondent contends that the series of grievances which admittedly were
the cause of the stoppage of June 19, should properly have been settled by means
of the grievance procedure set up in the contract , and that "the company is not
subject to censure or criticism because the Union did not" use the grievance
procedure.
With respect to the question as to whether the stoppage was authorized by
the Union, the Respondent argues that since both LeBlanc and Dumas partici-
pated in it , the stoppage must have been part of a plan of action by the Union ;
it cites the further fact that since the two departments where the stoppage
occurred were not on the same floor , the action must have been a "concerted"
one.
With respect to the duty of the Union to "endeavor to secure a return of the
strikers to work" the Respondent argues that the Union failed in this duty and
that therefore it was justified in terminating the contract when it did so. It
is further argued that Richards acted "strictly within the terms of the contract"
when he told Brown on June 19 that he "would not discuss any matters until
the employees were back at work." Counsel for the Respondent in his brief
emphasizes that the language of Article VII of the contract clearly contemplates
such a course of conduct in the eventuality which occurred herein. He argues
that even if the strike was an unauthorized one this Article provides that "in
case of an unauthorized strike, the Union agrees to endeavor to secure a return
of the strikers to work to the end that the dispute may then be settled peaceably
in accordance with the procedures set up herein" [emphasis in brief], and that
there was therefore no obligation on the part of the Respondent to do anything
but wait until the Union had secured the return of the strikers , at which point the
grievance procedure would have been properly called into play.
As to such further violations of Section 8 (5) as are alleged by the Board,
with one exception , the Respondent contends that since the Union 's position
794 DECISIONS OF NATIONAL LABOR - RELATIONS BOARD
was "Talk to us first , and give us what we want , and then we 'll tell the workers
to go back" and the Respondent 's position was "You get the workers back to
work and we 'll talk to you," that this "interchange of positions was in and of
itself collective bargaining."' The Respondent amplified this position by argu-
ing that the newspaper announcements and the letters of June 26 and July 12
were, in effect , offers to the employee 's of their jobs "without loss of status . . .
and rights ," and that this meant that they would return to work with the same
collective bargaining agent which they had previously had, and that there was
therefore no attempt to "circumvent the Union."
The exception referred to above, relates to the unilateral granting of a wage
increase . The Respondent argues that this increase was in line with increases
given generally in the textile industry and that it did not prolong the strike
since it conferred a benefit to the employees rather than taking one away.
3. The appropriate unit
The complaint alleged that all of the Respondent 's production and maintenance
employees employed at the Lowell plant, excluding office and clerical employees,
watchmen , executives , foremen and assistant foremen, and all other supervisory
employees with authority to hire, promote , discharge , discipline , or otherwise
effect changes in the status of employees , or effectively recommend such action,
constitute a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the , Act. The Respondent admitted the appro-
priateness of this unit in its answer, and no further proof was adduced in sup-
port of this allegation at the hearing.
` The undersigned finds that the above-described unit at all times material
herein constituted , and now constitutes a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
4. As to the representation by the Union of a majority in the appropriate unit
In its complaint , the Board alleged that the Union had been since September
f2, 1945, the exclusive representative of the employees in the foregoing appro-
priate unit . The Respondent , in its answer,'denied that this was the case. At
the hearing however, the Respondent stipulated that the Union represented a
majority of its employees at least as late as January 19 , 1947, the day preceding'
the opening of the hearing. Although Conant testified that he had some doubt
after the latter part of August 1946, as to whether the Union represented a
majority of the employees , this doubt was never expressed to the Union, and
in view of the aforementioned stipulation , the undersigned finds it unnecessary to
proceed further with a discussion of Conant 's testimony relative thereto.
The undersigned finds that on September 12, 1945, and at all times thereafter,
the Union was, and now is, the duly designated representative of the majority
of the employees in the aforesaid appropriate unit, and that by virtue of Sec-
tion 9 ( a) of the Act , the Union at all times was, and now is, the representative
of all the Respondent 's employees in such unit for the purposes, of collective bar-
gaining in respect to rates of pay , wages, hours of employment , and other condi-
tions of employment.
5. Conclusions as to the refusal to bargain
It is clear , and the undersigned so finds, that the Union did not avail itself
of the contract grievance machinery to remedy the grievances , fancied or real,
8 These are quotations from Respondent ' s brief.
UNITED ELASTIC CORPORATION 795
which the Union felt it had. It may well be, as contended by the Board, that
the attitude of the Respondent with respect to these grievances was "cavalier."
Nevertheless , the Board at no point contended that this "attitude" was either a
refusal to bargain or a violation of Section 8 (1) of the Act . The Respondent
had entered into a contract in what must be interpreted as good faith, and
although there were differences between the parties, such differences could quite
conceivably have been ironed out if the union members had been willing to
abide by and use the grievance machinery set up by the terms of the contract.
Although it is true as the Respondent argues that Union officials LeBlanc and
Dumas participated in the stoppage , the undersigned cannot agree with the
Respondent 's contention that the stoppage was authorized by the Union at the
point of its inception . As a matter of fact Richards , in the statement prepared
by the officers of the Respondent , which was read to the employees at 2: 30 p. m.
on the day of the stoppage , refers to it as an "unauthorized stoppage." The
testimony is clear that the stoppage was unauthorized at least until the employees
met at the union hall on June 19 , 1946, and had decided to stay out on strike
after hearing from Brown what Richards had told him.
The Respondent argues that whether the stoppage was authorized or not,
Article VII of the contract created an obligation upon the part of the Union,
in case of an unauthorized strike, to endeavor to secure the return of the
strikers to work. It argues further that Brown did not make such efforts and
that therefore the Union breached the contract , and the Respondent was justified
in notifying the Union that the contract between the parties was at an end, and
that further , the Respondent had a right to refuse to negotiate with respect
to the grievances till the Union terminated the strike.
Whether or not the Respondent was justified in terminating the contract is not
material to the issues herein. The important question here is whether the Re-
spondent had the right to refuse to bargain with the Union as the representative
of its employees.
In Matter of The Tainken Roller Bearing Company , 70 N. L. R. B. 500, the
Trial Examiner stated in his Intermediate Report in language which was later
adopted by the Board :
The authority of the Union to represent the employees stems from the
fact of its majority status, and is statutory rather than contractual in
character.
After discussing the nature of the duties of the Respondent to bargain collectively
with the majority representative, the Intermediate Report in the Timken case
supra, goes on in the following language:
Nor are the obligations of the employer , as outlined above, changed by
the intervention of a strike . The exclusive right to handle grievances for
employees within the unit, is not something which the respondent has
granted the Union as a concession , or in trade for a consideration, to be
withdrawn if the consideration fails, but a right given the bargaining agent
by the Act . As the Board held in the Columbian Enameling case,26 where
the Union called the employees on strike during the life of a contract con-
taining a no-strike clause:
25 N. L R . B. v. Columbian Enameling and Stamping C0 , 306 U S 292, affirming
96 F. 2d. 948 ( C. C A. 7 ) setting aside 1 N. L. R. B. 181 on other grounds See
also : N. L R B v Reed ct Prince Arfg Co., 118 F. 2d . 874 (C . C. A 1), enforcing
12 N. L it. B. 944 , cert. denied 313 U. S 595
796 DECISIONS OF .NATIONAL, LABOR RELATIONS BOARD
"Employees do not cease to be such because they have struck. Collective
bargaining is an instrument of industrial peace. The need for its use is
as imperative during a strike as before a strike. By means of it a settlement
of a strike may be secured."
To hold that the respondent was under no obligation to discuss with the
Union the grievances of employees on strike, would be to relegate them to
the position of having to bargain individually with their employer, or to
leave grievances unredressed. Neither of these alternatives is tenable.
The right of the respondent's management to speak for the respondent on
corporate matters would not be affected by a contract violation by the man-
agement. So here, the Union remained the sole bargaining agent of the
respondent's employees in the unit, regardless of whether' the strike of
October 15 was in violation of the Union's contract. If the respondent felt
itself legally injured by the act of the Uni in calling the strike, it could have
sought such redress as local or State laws might have afforded it. It was not
within its province to attempt to discipline the collective bargaining repre-
sentative of its employees by refusing to accord it the recognition guaranteed
by the Act.
In adopting the Trial Examiner's Intermediate Report in the Tinnken case, supro;
the Board in footnote 9 of its Decision said the following:
We also concur with the Trial Examiner's conclusion that the existence
of a strike allegedly in violation of a no-strike clause does not impair the
obligation to bargain. It is the declared policy of the Act to mitigate and
eliminate obstructions to the free flow of commerce by encouraging the
practice and procedure of collective bargaining. A no-strike clause is
designed to keep disputes from interrupting the respondent's operations but,
as the case under consideration amply demonstrates, it constitutes no guar-
antee that such interruptions will not occur. Unless the statutory duty to'
bargain collectively is held to remain in force even after a labor contract
previously made has been broken, the purpose of the Act to promote in-
dustrial peace through collective bargaining will be attained only in small
measure. Consequently, the refusal of the respondent to bargain with the
Union after the strike is a violation of Section 8 (5) of the Act Cf.
N. L. R. B. v. Highland Shoe, Inc., 119 F. 2d 218 (C A. 1) ; Matter of Con,
sumers Veneer & Lumber Company, 63 N. L R B 17, 25, 40.
In the instant case, although the abrogation of the contract by the-Respondent
may have been justified by the circumstances, there is no question that whether
the contract remained in effect or not, the Union was still the collective bargain-
ing representative of the employees and that the Respondent could not deal
directly with its employees after it had already refused to bargain with the
Union on June 19, either to secure their return to work or to give them an
increase in wages without consulting the Union.
Thus, all the acts by which the Respondent refused to deal with the Union
until the employees returned to work, were in effect, refusals to bargain with
the Union. Richards' reply to Brown on June 19 that he would not discuss
any matter until the employees returned to work, the letters of June 26 and
July 12, as well as the letter of August 5, the newspaper advertisements, .the
unilateral increase of wages given by the Respondent to its employees, and the
continued solicitation of the striking employees to return to work by super-
visory employees, were, and are hereby found to be refusals to bargain with
the Union as the exclusive representative of the employees.
UNITED ELASTIC -CORPORATION 797,
The contention that Richards acted "strictly within the terms of the contract"
when he told Brown that he "would not discuss any matters until the employees
were back at work" suffers from still another weakness. The Respondent in
arguing that the Union had breached the contract and that therefore the Re-
spondent was justified in terminating it, apparently overlooks the fact that if
the contract no longer existed, the obligation of the Union to carry its grievances
to the grievance machinery no longer continued. Since the contract has been
terminated by the Respondent and since it refused to reinstate the contract this
position would leave the Union with no avenue for negotiating the differences
between the parties Thus, even if the Respondent were right in its contentions
that Richards could have justifiably refused to deal with the Union while the
latter was "violating" the contract, the Unions' obligations thereunder were at
an end after the contract was terminated, and it had the right to direct its
efforts at settling the dispute thereafter by negotiating the grievances. But the
reply of the Respondent to the Union after the alleged breach and after the
termination of the contract was still the same, namely, to get the employees
back to work before negotiations of any kind could proceed.
The undersigned finds that the Respondent has refused and now refuses to
bargain collectively with the exclusive representative of its employees within
the meaning of Section 8 (1) and (5) of the Act.
B. Interference, restraint, and coercion; the discriminatory discharges
The Board alleged in its complaint, and the Respondent denied in its answer,
that the Respondent had discriminatorily discharged certain named employees
on or about September 5, 1946, and that it had refused to reinstate them at all
times since September 10, 1946.
1. The applicable facts
As has been described above, the employees of the Respondent went out on an
unauthorized strike on the morning of June 19, 1946 . Thereafter they came to
the union hall and spoke to Brown. Brown, at about 3 p. m. of the same
day, telephoned Richards to discuss the matter with him. Richards ' answer
was that he ' would not discuss anything with the Union until the employees
went back to work. Subsequent attempts on Brown ' s part to reach Richards
and Conant were unsuccessful . On June 26, 1946, the Respondent wrote to its
striking employees and advised them that "all employees who return to work
on or before Monday , July 15, will do so without loss of status ." On July 12,
1946, the Respondent again wrote to its employees and said, "You are losing
wages unnecessarily and without justification . The sensible thing for you to do
is to return to work."
The Respondent admits that its letter of September 5, 1946, constituted "the
separation of these employees from the company 's pay roll ." The first paragraph
of this letter contains the following statement :
The Company calls your attention to the fact that you have not complied
with its requests of June 26 and July 12, 1946, to return to work. Therefore
your name has been removed from the payroll as of July 15, 1946, and you
are no longer considered as an employee.
On September . 12 and 13 , 1946, the strikers unconditionally offered to return
to work but were refused employment.
853396-50-vol 84-54
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In order to clarify the issues the undersigned will deal with the legal issues
involved in the discharges considered as a whole, and will thereafter discuss
the, questions- raised concerning the' individual discharges.
2 The Board's contentions as to the legal issues
The Board contends that "each of the employees named in the complaint was
discharged by the Respondent during the course of the strike, . . . for having
participated in union activities and for having refused to act upon the Respond-
ent's exhortations of June 26 and July 12 to return to work."
It is the further contention of the Board that "The strike, whatever its
primary cause, was extended and, prolonged by the unfair labor practices com-
mitted by the Respondent during its course, . . . including the refusal to bargain
. ... and its unilateral granting of, a wage increase without prior consultation
with the Union."
3. The Respondent's contentions as to the legal issues
The Respondent contends that there were no demands made on it prior to the
strike and no reason was advanced "why the employees walked out in breach
of the contract." Under such circumstances, the Respondent contends that the
strike was not caused by any unfair labor practice on the part of the company.
The Respondent then argues that "since no unfair labor practice was involved,
this strike, in breach of contract, justified the company in discharging these
workers."
In support of this position the Respondent cites the Sands Mfg. Co' case, and
the following language from the Supreme Court decision therein which it con-
siders as "particularly applicable" : 10
.. . The Act does not prohibit an effective discharge for repudiation by
the employee of his agreement, any more than it prohibits such discharge
for a tort committed against the employer . . .
The Respondent' also 'cites Article VIII of its contract. which has : been set
forth in full in the first part of this report. Of particular applicability, argues
the Respondent, is that section of the Article which reads as follows :
The right to discharge employees shall remain in the sole discretion of the
Employer, except that no discharge shall be made without just cause-
just cause to mean . . . engaging in a strike, or group stoppage of work of
any kind, slowdown strike, sabotage, picketing.
The Respondent asks the question "How can the Union, which bargained
away the right to protest a discharge for engaging in a strike or stoppage, now be
heard to protest when the company discharged the strikers?"
It is also the Respondent's position that after "the employees took it upon
themselves to walk out and thereby terminated their employment with the
company . . . the company, in its letter of Sept. 5, 1946, merely consummated
the separation of these employees from the company's payroll."
4. Conclusions as to the legal issues involved in the discharges
The first question raised by the facts and by the contentions set forth above
is whether or not these striking employees were discharged or whether "they
"N L. R. B v. Sands Mfg. Co , 306 U S. 332.
10 Quoted language from Respondent's brief.
UNITED ELASTIC CORPORATION 799
took it upon themselves to walk out and thereby terminated their employment
with the Company." On this question the facts speak for themselves. Both the
Respondent and the Union considered the strikers as-employees of the company
after June 19. The several letters addressed to the strikers, the demands that
they "return" to work, before any negotiations proceeded, and the Union's
position that it represented the employees of the company, clearly demonstrate
bow the parties regarded the relationship between the strikers and the Respond-
ent. The letter of September 5 consummated a separation which had not been
envisaged, previous to July 15, 1946, for as that letter states :
.. . you have not complied with its (the company's) requests of June 26
and July 12, 1946, to return to work. Therefore your name has been re-
moved from the payroll as of July 15, 1946, and you are no longer considered
I as an employee. [Emphasis added.]
In connection with this question of the status of the strikers it is important
to consider what sort of strike they were engaged upon.
It is clear, and the undersigned so finds, that at its inception the strike was
an economic strike, entered upon the strikers in defiance of the contract, and the
terms thereof, and it is clear that the strikers would have been liable to dis-
charge under the terms of Article VIII of the contract, at that time, for that
reason.
The question as to whether they continued in the status of economic strikers
and liable to discharge is an important one. It has already been found that
Richards' refusal to discuss any matter with Brown until the strikers were back
at work, constituted a refusal to bargain and a violation of the Act. Thus it is
clear that through its own acts, the Respondent converted the strike into an
unfair labor practice strike. For it is possible that if Brown had received such
an answer from Richards as would have enabled the two parties to negotiate
their differences, the strike might well have been ended within a reasonable
period of time, instead of continuing as in the instant case for several months.
Thus the Respondent by its unfair labor practices not only probably extended
the'duration of the strike, but further gave to the strikers certain rights which
they did not possess as economic strikers.
The undersigned finds that under the circumstances herein, the strike was pro-
longed and extended by the unfair labor practices of the Respondent enumer-
ated and described in detail above.
The contention of the Respondent that since the strike was not caused by any
unfair labor practice, the company was justified in discharging the strikers, is
without merit in the instant state of facts where a subsequent series of unfair
labor practices occurred before the discharges took place.
The Sands case " is not applicable. The Respondent there did not commit
any unfair labor practices prior to the discharge of the strikers, and the Supreme
Court stressed that fact. In that case the employees struck after they had
repudiated the contract, and the Court, in effect held that discharge of em-
ployees engaged in such a strike in violation of the contract was permissible.
But the Respondent here did not discharge the strikers until after it had refused
to bargain with the Union, had unilaterally offered the strikers an 8 cent an hour
increase to desert the strike and return to work, and after it had, through its
officials and agents conducted a campaign of personal solicitation of the strikers
to return to work Such conduct, all found to have been in violation of Section
8 (5) of the Act, clearly demonstrated to the strikers that the Respondent would
21 See footnote 9, supra.
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not deal with them through their duly chosen and certified bargaining agency,
but would deal only with them as individuals.
The Respondent contends that the Union had "bargained away the right to
protest a discharge for engaging in a strike or stoppage " in the contract which
it had entered into with the Respondent . This contention is without merit
insofar as it applies to the facts herein. The contract was terminated by the
Respondent long before the discharges occurred . The Respondent cannot release
itself from the obligations set forth in the contract and ask that the Union be
held thereafter to the terms . and conditions of the terminated contract.
The Respondent did not discharge the strikers because they had violated the
no-strike clause of the contract . In its letter of September 5, the Respondent
states clearly and unequivocally , that since the strikers had not complied with
the letters of June 26 and July 12 , 1946, their names being removed from the
pay roll for that reason . The June 26th letter was an invitation to the strikers
to return to work "without loss of status ." The July 12 letter stated that "there
will be no discrimination against you either because you are a member or are not
a member of the Union . . . . You are losing wages unnecessarily and without
jurisdiction The sensible thing,for you to do is to return to work." These
letters in effect amounted to an offer by the Respondent to take its striking
employees back without loss - of pay or any other "discrimination ," if they de-1
serted the unfair labor practice strike.
In Matter of Carey Salt Company, 70 N. L. R. B . 1099, the Board in a some-
what similar case used the following language :
. . we find upon the entire record herein that he was discharged
because of his ... concerted activities , . . . and not because of his
participation in the illegal strike. It is noteworthy in this respect that
the Respondent ; itself, did not consider this conduct [ the participation in the
illegal strike ] unpardonable , for it had no hesitation in continuing the em -
ployment of the more than 100 other striking employees . Moreover, the
respondent , having agreed to reinstate Shetley and having in fact restored
him to his employee status after settlement of the strike and resumption of
operations , we believe that it could not, on these facts, later assert as a
reason for discharge the wrongful aspect of his conduct while participating
in concerted activities with'his fellow employees.
In the instant case those employees who returned to work in response to the,
letters of June 26 and July 12, were reinstated with full seniority and rights.
There is no contention that those who remained on strike would not have received
the same treatment if they had returned to work in response to the same letter.
The Respondent could not, under these circumstances , reserve to itself the
continuing right to discharge the striking employees at any time in the future
for the breach of the contract . Once it had condoned their actions in allegedly
breaching the contract, and had offered the strikers unconditional reinstatement
the Respondent could not , as to those who did not accept the offer, discharge
them at a later date because they did not return. The condonation , once offered,
constituted a clear waiver of the Respondent 's right to discharge the striking
employees in the future for the same breach of contract . It is clear that here
the striking employees were discharged because they "participated in concerted
activities with their fellow employees " and refused to desert the strike and not
because they breached the contract . The right to engage in such activities is
guaranteed employees in Section 7 of the Act.
UNITED ELASTIC CORPORATION 801
It has been found that the strike though economic in its inception was ex-
tended and prolonged by the unfair labor practices of the Respondent. It is
further found that the Respondent discharged such of the strikers as had not
returned to work by September 5, 1946, and refused to reinstate them on Septem-
her 12 or 13, 1946, or thereafter, in violation of Section 8 (3) of the Act 12
5. The contentions .of the Board with respect to the merits of the individual
discharges
The names listed on "Appendix A" of the complaint can be broken down into
several major classifications. The first classification contains the names of
certain individuals who were terminated by the Respondent prior to the strike.
The Board's attorney amended the complaint to strike such names from the
complaint.
A second category of the employees contains the names of those striking em-
ployees who had not personally applied for reemployment at any time. It is
the contention of the Board that these strikers, some 24 in number, did not have
to make individual application for reemployment because they had been discrimi-
natorily discharged by the letter of September 5. The Board's attorney contended
further that Brown's letter of September 10, 1946," addressed to Conant con-
stituted a blanket application for their reinstatement. -
As to a third category of these discharged strikers, the Board contends that
four of them, alleged by the Respondent to have been offered employment by it,
but who thereafter refused to accept it, either were not offered employment or
were offered jobs other than those held by them prior to the strike.
The fourth category of names among these listed in the complaint is made
up of those strikers, according to the Board, who applied for reinstatement, but
-were refused. Four names were added to the complaint by amendment, and
the Board contends that these individuals fall into this category.
•6. The contentions of the Respondent with respect to the individuals discharged
Since there is no quarrel between the parties as to the first category whose
names were stricken from the complaint by amendment, the Respondent raised
no question concerning them.
As to those employees who had not personally applied for reemployment, it is
the Respondent's contention that it was their duty to do so and that Brown's
ii A number of the strikers were hired as new employees on the dates appearing after
their names as set forth below :
Sidney Brooks,, Sept .25, 1946 ; Rita A Cayer, Sept 18, 1946 ; Henrietta Cayer,
Sept. 18, 1946 ; Hilda Champagne; Dec 12, 1946 ; Lillian Charland, Sept 17, 1946 ;
Claire Demers, Sept. 3, 1946; Claire Dumais, Sept 26, 1946 ; William J. Dunlay,
Sept. 10, 1946; Fobiola England, Dec. 3, 1946; Joseph Fitzboy, Sept. 19, 1946 ;
Thomas R Frizzell, Sept. 24, 1946: Mary Goggen, Sept 5, 1946 ; Rita V Kane,
Sept. 23, 1946 ; Claire L. Lemay, Sept. 23, 1946 ; Eva Loranger, Sept. 16, 1946 ;
Arthur Massey, 'Sept. 23, 1946; Alexander Michaud, Sept. 18, 1946; Arthur Norman-
din, Sept 30, 1946; Stella Nowal, Sept. 23, 1946; Irene Ouellette, Sept. 19, 1946;
Pauline Pelletier, Sept 23, 1946; George J. Rondeau, Sept 3, 1946; Anna Tessier,
Sept. 19, 1946; Alice Trottier, Nov. 16,.1946; John Lappin, Sept. 19, 1946; James
J. McPhillips, Sept. 16, 1946.
33 The text of this letter follows
This is to inform you that the United Elastic Workers have voted, at a meeting
held at the Lowell Joint Board, T. W. U. A., C. I. 0,, headquarters, Monday, Sep-
tember 9, 1946, to return to work.
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
letter of September 10 was not such a blanket offer of reinstatement as would
remove that obligation. -
Of those employees who were offered employment but refused it, the Respondent
contends that the testimony of assistant superintendent , Andrew Jenkins, indi-
cates that they were offered jobs which they refused.
As to the fourth category the Respondent contends that it "had a right to sever
them from the payroll because of their participation in the illegal strike, and
the company has not been guilty of any discrimination in not rehiring them."
The Respondent then argues that "since the company properly discharged them,
the company' ,has exercised , 'as
-
to them , its powe ' r of-selection . just as 'it would
with any new applicant for employment."
Two minor categories of discharged , strikers who were not rehired are dis-
'cussed by the Respondent in its brief . The first of these consists of three individ-
uals as to whom the Respondent contends , that their jobs were eliminated due to
the exigencies of the employer 's business . As to the second of these minor cate-
gories there seems to be no dispute . Andrew Teague worked all day on June
19, the day of the dispute , and 2 or 3 hours on the following day. He then left
because of an industrial accident and was granted a leave of absence from which
he returned to work on September 23.
7. Conclusions as to the merit of the individual discharges
The following named individuals were terminated by the Respondent prior to
the strike and stoppage :
Elizabeth Ashmore Adam'Lacerte
Theresa Beauregard Angeline Lajoie
James A. Barrie Robert P. Lanouette
Mary A. Bergeron Annette Le Bouef
Mederic Boissoneault 'Aline C. Le Clair
John E. Carr Frances W. Magee
T. A. Gornock Bernice P Ramalho
M. Duggan Marjorie Ranger
James L. Fortner , Jr. Leo J. Reardon
Loretta Gagnon Lillian Richard
Leo J. Gregoire Doris Small
George Hesley Craig Williams
The Board 's attorney moved to amend the complaint by striking the above-
named individuals from it. The motion was granted.
As to the second category , those who did not personally apply for reinstatement,
the following-named individuals are so listed :
Anita Bechard
Antoinette Bernier
Mesrob Boyajian
Raymond P . Brophy
Theresa Chandonnet
Joseph A. Cote
Jeanette D'Amour
Edward Dufresne
Helen Fortin' -
Leo J. Fournier
Adele Gendron
John F. Harriman
Rosette Hervieux
Alice Jurkiewicz
Edward P. Killeen
Kazmira Klatka
Matt' Myskowski
Doris Plamondon
Gertrude Renaud
Louise Robillard
Mathilda Rock'
Arthur A. Roy
Rita Suprenant
Hannah Watson
UNITED ELASTIC CORPORATION 803
The undersigned has found that the discharge of the strikers was discrim-
inatory in the first instance. That being the case, it is found that there was no
duty upon the above-named individuals to individually apply for reinstatement.
Such application for reemployment would have been a useless gesture in any
event since the Respondent did not reinstate any of the employees who did apply,
to the same positions they had formerly held, and with all the rights and
privileges they had formerly enjoyed. Those who were rehired were classified
as new employees without seniority and without any more rights than, any other
new employee. Such placement would obviously not have given the employees
the same status-they had formerly held., ^ The Boards contention that the,.letter-
of September 10 from Brown to Conant'is a blanket application for reemployment
has merit, and it is found that the letter advised the Respondent of the avail-
ability of the striking employees for reemployment. Since the Respondent does
not contend that it would have reinstated these employees with full seniority
and such other rights as they might possess, it constituted a'blanket application
for employment by the strikers. The fact that the Respondent did not take
advantage of this offer does not give it the right to demand another (and equally
useless) form of application from the individual strikers.
As to 10 strikers named in the complaint, Jenkins testified that they were
offered employment as new employees after the strike, but refused it. As to 5
of these, the Board moved to amend its complaint by striking their names from
it. These were :
David W. Cunningham Beatrice, Laroque
Alfred J 'Deneault, Louis J. Roy
Aurora Hogue
The motion was granted.
As to Gemma Arguin, Annette Despres, Harry Brunelle, Ernest Lagasse, and
Raymond Savard, Jenkins testified substantially that their jobs had been offered
to them sometime after September 10, 1946," and that they had either refused
employment, or ignored a letter sent to them by the Respondent asking that they
report for, work.
Arguin did not testify. Jenkins testimony, as to her stands uncontradicted.
Nevertheless, since it is clear that she was offered only conditional reinstate-
ment as a new employee, the offer was not valid. Harry Brunelle testified that
Jenkins did not offer him his old job as shipper because, Jenkins said, "There is a
fellow already on the job." On a second occasion, some 2 weeks later, Brunelle
testified that he saw Jenkins again, but was not offered a job. At that time
Brunelle mentioned, the-fact that,he-was`-figuring ,on going into GE" when that
company opened its- plant in -2 or 3 weeks. Cross examination of the witness
revealed the fact that Brunelle never went to work for GE.
Jenkins' testimony is not specifically to the contrary. He testified that :
A. Well, I started to talk with him as soon as he came over to me. He
told me he wasn't interested in working for us as he was expecting work
at the GE.
e s s s s .s *'
Q. At that time, did he ask for work?
A. No. In other words, he told me he didn't want to signI any applica-
tion. I told him I wasn't asking anybody to sign applications I just wanted
"In all these cases the Respondent admits .that the striking employees when offered
reemployment, were offered these jobs as new employees, without seniority or other rights.
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to make note of the fact he was in applying for work. He told me he wasn't
interested to apply for work ; he had this possibility of work at General
Electric, the new plant that was striking.
At a later point in the hearing Jenkins testified :
A. I believe I told Brunelle if the occasion came where I could use him I
would contact him.
Q. And did you at any time`_contact hima-fthrsthM,?
A. No I did not.
Q. Why didn't you contact him?
A. There wasn't any reason to contact him. I didn't have any work for
-'him.
It is clear from Jenkins' testimony and it is so found that he did not offer
Brunelle a job at any time. The most that, can be said for the conversation
between the two men is that Brunelle said that he might find employment with
General Electric. Such a statement cannot be interpreted as a refusal to accept
employment. It is found that the Respondent did not offer Harry Brunelle.
reinstatement to his job."
Annette Despres testified that she received two letters from the Respondent
offering her employment. She further testified that she refused these offers
because they were for a different type 6f-work and-on a different shift than she
had formerly had, and because her earnings would have been less. Jenkins'
testimony did not touch on the type of work, shift, or earnings of the job he
offered to her. Under these circumstances it is clear that there was no duty
on Despres to accept a job with less pay and with other undesirable features
as well as without seniority and as a new employee. It is so found.
Ernest Lagasse testified credibly that he reapplied for employment with, the
Respondent on September 14, 1946. He told Jenkins that he was working at
another "little job to keep me going" since he did not know whether the strikers
would be called back,or not. He did tell Jenkins that "I always like my job
and I always like to work in the plant," and that he would like to have his
job. He also told Jenkins "that as long as I am out and I have been here 16
years, as long as, I am out now on a new job, this thing is settled, it looks like I
will have to start another 16 over there."
Two weeks later Lagasse telephoned Jenkins and made another appointment
to see him. At this meeting Lagasse told Jenkins '8 that he had another job,
"but . . . that if he wanted to hire me this would be the first place for me
to come for a job, because I always liked my job." Jenkins said that "We
will, keep,in contact" but according to Lagasse he has not been called back even
though he has called Jenkins several times since then.
Jenkins testified''` to the first occasion of his meeting with Lagasse and that
Lagasse at that time said "that he wasn't interested in going back." His testi-
mony follows : `
A. After I had written down Lagasse's name and date, and phis former
classification, he then remarked to me that he wasn't interested in work.
I immediately asked him, why did he have me make out an application if
he hadn't intended or if he wasn't interested in getting work. And he told
11 See footnote 14, supra. .. . I
1e Lagasse so testified. His testimony is credited.
„ =The undersigned credits Lagasse ' and does not credit Jenkins.-,
UNITED ELASTIC CORPORATION 805
me then that he had worked 16 years for this company ; he had another job,
and he guessed he'd start 16 years for them.
Q. -Didn't ... Mr . Lagasse . . . ask you for [his] old job back . . . ?
A. Lagasse told me just as I have said.
Jenkins did not testify to any other conversations held with Lagasse, and it
is clear from the above that Jenkins did not offer Lagasse a job at this time,
or at any other time, as far as the record shows. It is clear that even if Lagasse
had been offered a job it would have had attached to it the illegal condition
requiring him to return to work as a new employee . Under these circumstances,
the contention of the Respondent that Lagasse refused to accept a proffered
job, is without merit , and it is found that Lagasse was never offered reinstate-
ment to his old job.
Raymond Joseph Savard testified that he went to the office of the Respondent
on October 15, 1946, and that he spoke to Jenkins . He told Jenkins that his
father had suffered from a paralytic stroke and that he had been taking care
of him ; that he had just obtained the services of a woman who would relieve him
of the necessity of staying home with his father and that he was now able to go
back to work. Jenkins , according to Savard told him that "at the present time
he didn 't have no employment for me, that anytime that he would have employ-
ment he would call me up."
Jenkins' testimony with reference to Savard , was that 'Savard came in "pur-
posely" to tell him that he was sorry that he could not accept work . However
Jenkins was not sure of the date when - Savard came in and he did not directly
deny,Savard 's version of the incident . He also testified that he "didn 't believe
that" he "could have started him the day he came in."
It is found that Jenkins did not offer Savard a job at any time after the
termination of the strike, and that Savard, on the contrary , offered his services
to the Respondent on or about October 15, and that these services were refused.
Jenkins testified that the jobs of Edward J Matte, Raphael Richotte, and
Thomas Tracy , all named in the complaint as allegedly unlawfully discharged
employees , had been eliminated . His testimony with respect to Richotte follows:
A. His [Richotte ] job was loomfixer's helper. His duties consisted of
cleaning looms.
Q. Was that job available on September 13th or 14th 1946?
A. That job was not available , sir. That job was eliminated.
Q. What had happened in the department , if anything , that resulted in
the elimination of that job?
A. We-had put in°a new,practice ' whl'ch done away with , that man doing
that job, which was very unsatisfactory ; always had been. The new system
is that the weavers take care of their own looms and you pay down time on it.
At a later point in the hearing, Jenkins testified that a certain Raymond
Blanchette was hired in October 1946, as a weaver but was placed on loom-
fixing. With respect to Blanchette 's work , Jenkins testified that "he appeared
to have quite a little natural ability." Although the testimony is not clear,
Jenkins testified that :
I believe he did have some experience ; so he told me. And apparently
he must have had, the way he took hold while he's been helping on some
of this work.
The undersigned finds that Blanchette was not hired as a loomfixer, but has
been used to help on some of this work . Since he was hired ins October 1946,
'- 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after Richotte had made application ' for employment , and since he is apparently
doing the same type of work that Richotte was doing , it is found that Richotte's
job was not eliminated , and that the latter is entitled to reinstatement.
As to Edward J. Matte, Jenkins testified :
A. Before the strike , prior to June 19th, Eddie Matte was maintenance
man "A" in our maintenance department.
Q. What, if •anything ,• was the situation ' on the 13th or 14th of September,
1946? Was that job still in existence in the plant?
A. That job was eliminated.
On cross examination , Jenkins testified as follows :
Q. During the course of the strike you hired a new maintenance man to
work under Mr. Drapeaux , didn't you , named Walter Johnson?
A. I did.
Q. Did he do the same type of work Matte used to do?
A. He doesn 't do exactly the same type . He works in the maintenance
room on the various work that comes up in that department.
He might at times do some of the work Matte had done previously.
* * * * * * *
I'think, . as I recollect , Ernest Matte had , the-classification .,as of this new
man, Johnson.
Q. Did you offer Mr. Matte any equivalent or similar job?
A. No, I did not.
On the basis of the above testimony it is clear that Johnson was hired during
the strike to do work similar to that done by Matte. It is found that Matte's
job was not eliminated and he is therefore entitled to reinstatement.
According to Jenkins , Thomas Tracy's job was also eliminated. His testi-
mony follows :
A. . . . there was a very large change made in our washers , which are
part of the humidity and heat control units, which enabled us , instead of
having a man in there which was this man 's job, to eliminate the biggest part
of that work. In other words , the job that was done .probably a couple of
times a week is now probably done a couple of times a month and with
very much less work attached to it.
Tracy testified that his job consisted of "picking up waste and stuff and
sometimes goods that come in the receiving room, delivering them to the various
departments, and cleaning units on the air conditioning ; general cleaning of
different types." He testified that he spent approximately forty percent of his
time in cleaning the air conditioning units. He also testified that he had been
informed by one of the supervisory staff, Joe Alphino , that he had been replaced
by someone else.
Joe Alphino did not testify and the Respondent did not rebut Tracy's testi-
mony with respect as to what Alphino had told him. The undersigned finds on
the entire record, and from his observation of the witnesses , that Tracy was not
:rehired, and that although there was work for which he was qualified and for
which he would normally have been used, he was not given the opportunity to
work. It is therefore found that not only was Tracy's discharge discriminatory,
but also that the refusal to reinstate him was likewise discriminatory.
UNITED ELASTIC CORPORATION ' 807
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations of the Respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead and have led to labor disputes burden-
ing and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has violated Section 8 (1), (3), and (5)
- of the Act, the undersigned will recommend that it cease and desist therefrom
and take certain affirmative action which the undersigned finds necessary to
effectuate the policies of the Act.
It has been found that the Respondent has refused to bargain collectively with
the Union as the exclusive representative of its employees in an appropriate
unit. It will therefore be recommended by the undersigned that,the Respondent
upon request, bargain collectively with the Union.
It has also been found that the Respondent discharged and thereafter failed
to reinstate certain employees hereinafter named in Appendix A hereof, for the
-reason that they assisted a labor organization and engaged in concerted activities
for the purpose of collective bargaining or other mutual aid or protection. It
will therefore be recommended by the undersigned that the Respondent immedi-
ately offer to these -named employees full reinstatement to their former or sub-
stantially equivalent positions 18 without prejudice to their seniority or other
rights and privileges, discharging if necessary any new employees hired since
June 19, 1946, the date when the strike became an unfair labor practice strike, and
make them whole for any loss of pay they may have suffered by reason of their
discriminatory discharges by payment to each of them of sums of money equal
to the amount which each of them would normally have earned as wages from the
date of their discharge"' to the date of the Respondent's offer of reinstatement,
-less their net earnings during such period.20
On June 19, the day of the stoppage, Richards refused to,discuss any matters
with the Union until after the strikers had returned to work. Thereafter, by
means of letters, newspaper advertisements, personal solicitation, and by the
.granting-of an 8 cent an hour wage increase, without consulting or advising the
Union, the Respondent sought to sway the union members from -their loyalty to
the Union, and their joint activity in the strike. Thereafter it discharged those
,.cf its employees who had not abandoned the strike and did not reinstate them
except in a few instances as new employees. Such conduct,,which,is specifically
violative of Section 8 (1), (3), and (5) of the Act, reflects a determination gen-
,erally to interfere with, restrain, and coerce its employees in the exercise of the
right of self-organization, to form, join, or assist labor organizations, to bargain
,collectively through representatives of their own choosing, and to engage in con-
19 In accordance with the Board's consistent interpretation of the term, the expression
"former or substantially equivalent position" is intended to mean "former position wherever
possible, but if such position is no longer in existence, then to a substantially equivalent
position" See Matter of The Chase National Bank of the City of New York, San Juan,
Puerto Rico, Branch, 65 N. L. R. B. 827.
11 This date is found to be September 11, 1946, the day on which the Respondent received
the Union's offer of an unconditional return to work on the part of the strikers.
20 Matter of Crossett Lumber Co , 8 N. L. R. B. 440, 497-498.
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certed activities for the purpose of collective bargaining or other mutual aid or
protection, and presents a ready and effective means of destroying self-organiza-
tion among its employees. Because of the Respondent's unlawful conduct and
since there appears to be an underlying attitude of opposition on the part of the
Respondent to the purposes of the Act to protect the rights of employees gen-
erally," the undersigned is convinced that if the Respondent is not restrained
from committing such conduct, the danger of its commission in the future is to,
be anticipated from the Respondent's conduct in the past, and the policies of the-
Act will be defeated. In order, therefore, to make effective the interdependent
guarantees of Section 7 of the Act, to prevent a recurrence of unfair labor prac-
tices, and thereby minimize industrial strife which burdens and obstructs com-
merce, and thus effectuate the policies of the Act, the undersigned will recommend
that the Respondent cease and desist from in any manner infringing upon the
rights guaranteed in Section 7 of the Act.
On the basis of the foregoing findings of fact and upon the entire record of
the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. Textile Workers Union of America, affiliated with the Congress of Industrial
Organizations, is a labor organization within the meaning of Section 2 (5) of
the Act.
2. All of the Respondent's production and maintenance employees employed at
the Lowell plant, excluding office and clerical employees, watchmen, executives,
foremen and assistant foremen, and all other supervisory employees with au-
` thority to hire, promote, discharge, discipline, or otherwise effect changes in the
status of employees, or effectively recommend such action, constitute a unit ap-
propriate for the purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
3. Textile Workers Union of America, affiliated with the Congress of Industrial
Organizations, was on September 12, 1945, and at all times thereafter, the exclu-
sive representative of all the employees in the aforesaid unit for the purposes of
collective bargaining, within the meaning of Section 9 (a) of the,Act.
4. By refusing on June 19, 1946, and at all times thereafter to bargain collec-
tively with the Textile Workers Union of America, affiliated with the Congress of
Industrial Organizations, as the exclusive representative of all, its employees in
the appropriate unit, the Respondent has engaged in unfair labor practices within
the meaning of Section 8 (5) of the Act.
5. By discriminating in regard. to the hire and-tenure of employment of the
employees whose names are set forth in Appendix A of this Report, and thereby
discouraging membership in a labor organization, the Respondent has engaged
'in and is engaging in unfair labor practices within the meaning of Section 8 (3)
of the Act.
6. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (1) of
the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
21 See May Department Stores Company, etc., v. N. L. It. B , 326 U. S. 376.
UNITED ELASTIC 'CORPORATION 809
RECOMMENDATIONS
Upon• the basis of the foregoing findings, of fact,and conclusions of law, the
undersigned recommends that the Respondent, United Elastic Corporation,
Lowell, Massachusetts , its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in Textile Workers Union of America, affiliated
with the Congress of Industrial Organizations, or any other labor organization
of its employees by discharging or refusing to reinstate any of its employees, or
in any other manner discriminating in regard to their hire and tenure of employ-
ment, or any term or condition of employment ;
(b) Refusing to bargain collectively with Textile Workers Union of America,
affiliated with the C. I. O. as exclusive representative of all the Respondent's
production and maintenance employees employed at the Lowell plant, excluding
office and clerical employees, watchmen, executives, foremen and assistant fore-
men, and all other supervisory employees with authority to hire, promote, dis-
charge, discipline, or otherwise effect changes in the status of employees, or
effectively recommend such action ;
(c) In any other manner interfering with, restraining, and coercing its em-
ployees in the exercise of their rights to self-organization, to form labor organiza-
tions, to join or assist Textile Workers Union of America, affiliated with the
C. I. 0., or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing and to engage in concerted activities, for the
purpose of collective bargaining or other mutual aid or protection as guaranteed
in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Textile Workers Union of America,
affiliated with the C. I O. as the exclusive representative of all of the Respond-
ent's production and maintenance employees employed at the Lowell plant, ex-
cluding office and clerical employees, watchmen, executives, foremen and assistant
foremen, and all other supervisory employees with authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of employees, or
effectively recommend such action, and if an understanding is reached, embody
such understanding in a signed agreement ;
(b) Offer to the employees whose names are set forth in "Appendix A" of this
Report, immediate and full reinstatement to their former or substantially equiva-
lent positions,` without prejudice to their seniority and, other rights and
privileges ; 23
(c) Make whole the employees whose names are set forth in "Appendix A" of
this Report, for any loss of pay they may have suffered by reason of the Respond-
ent's discrimination against them, by payment to each of them a sum of money
equal to that which he would have earned as wages from the date he was dis-
criminatorily deprived of his employment, to the date of the offer of reinstate-
ment, less his net earnings 2A during said period ;
23 By "former" positions is meant the positions held during that period on and imme-
diately prior to the dates of discharge
13 As to certain named strikers (see footnote 12, supra) who have been hired by the
Respondent and are presumably now employed by it with the status of new employees, the
order of reinstatement will apply to them in so far as it grants to them all rights, privileges
and seniority of which they have been deprived by having been rehired as new employees.
21 See footnote 20, supra.
810 DECISIONS OF NATIONAL, LABOR-RELATIONS BOARD
(d) Post at its plant at Lowell, Massachusetts; copies of the notice attached
hereto, marked "Appendix B." Copies of said notice, to be furnished by the
Regional Director of the First Region, shall, after being duly signed by the
Respondent's representative, be posted by the Respondent immediately upon
receipt thereof, and maintained by it for sixty (60) consecutive days thereafter,
in conspicuous places, including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other material ;
(e) Notify the Regional Director for the First Region in writing, within ten
(10) days from the date of the receipt of this Intermediate Report, what steps
the Respondent has taken to comply therewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the Respondent notifies said Regional Direc-
tor in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the Respondent to take
the action aforesaid.
As provided in Section 203.39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1046, any party or'
counsel for the Board may, within fifteen (15) days from the date of service of
the order transferring the case to the Board, pursuant to Section 203.38 of said
Rules and Regulations, file with the Board, Rochambeau Building, Washington
25, D. C., an original and four copies of a statement in writing setting forth such
exceptions to the Intermediate Report or to any other part of the record or
proceeding (including rulings upon all motions or objections) as he relies upon,
together with the original and four copies of a brief in support thereof, and
any party or counsel for the Board may, within the same period, file an original
and four copies of a brief in support of the Intermediate Report. Immediately
upon the filing of such statement of exceptions and/or briefs, the party or counsel
for the Board filing the same shall serve a copy thereof upon each of the other
parties and shall file a copy with the Regional Director. Proof of service on the
other parties of all papers filed with the Board shall be promptly made as
required by Section 203.65. As further provided in said Section 203 39, should
any party desire permission to argue orally before the Board, request therefore
must be made in writing to the Board within ten (10) days from the date of
service of the order transferring the case to the Board.
VICTOR HIESHFIET),
Trial Dxaminer. -
Dated May 19, 1947.
Dorothy Allen
Gemma Arquin
Yvette Arsenault
Antoinette Bernier
Mrs. Mary Bober
Sidney Brooks
Harry Brunelle
Henrietta Gayer
Theresa Chandonnet
Joseph D. Chartrant
Jose Vieira Da Luz
Claire Demers
APPENDIX A
Simonne Desrochers
Claire Dumais
William J. Dunlay
Joseph Fitzboy
Leo G. Fournier
Rose Mary Gagnon
Mary T. Goggen
Leo J. Hebert
Alice Jurkiewicz
Edward P. Killeen
Ernest Lagasse
Eduilda C. Laplume
UNITED ELASTIC CORPORATION
Charles LeBlanc
Rita I. Lemioux
Albert Lupien
Mrs. Antoinette Marchand
Edward J. Matte
Alexander Michaud
Antoinette Morin
Arthur Normandin
Viola Nowak
Lillian Ouellette
Pauline Pelletier
Doris Plamondon
Gertrude Renaud
Arthur Richard
Louise Robillard
Georgette Rondeau
Rita Rondeau
Arthur A. Roy
Raymond J. Savard
Mildred Swiderski
Jeannette Thibeault
Alice Trottier
Hanna Watson
John'Lappin
Jeanne Thibault
Nellie Ambrose
Anita Bechard
Lorinna Blanchette
Mesrob Boyajian
Raymond P. Brophy
Rita A. Cayer
Mrs. Hilda Champagne
Lillian Charland
Joseph A. Cote
Jeannette D'Amour
Annette Despress
Edward Dufresne
Adelard Dumas
Fabiola England
Helen Fortier
Thomas Frizzell
Adele Gendron
John F. Harriman
Rosette Hervieux
Rita V. Kane
Kazmira Klatka
Dolores Langlois
Heloise C. Laplume
Claire L. Lemay
Eva Loranger
Germaine Lussier
Arthur Massey
Ernest J. Matte
Isabella Morgan
Mary Myskowski
Stella Nowak
Irene Ouellette
Narcisse Polland, Jr.
Henry Pestana
Luciana M. Plouffe
Marcelle Renaud
Raphael Richette
George J. Rondeau
Napoleon J. Rondeau
Mathilda Rock
Charles Russell
Rita Suprenant
Anna Tessier
Thomas Tracy
Florence Viebicki
Arthur Donnolly
James J. McPhillips
APPENDIX B
NOTICE To ALL EMPLOYEES
(It
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
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor
organizations, to join or assist TEXTILE WORKERS UNION OF AMERICA,
affiliated with Congress of Industrial Organizations 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.
WE WILL OFFER to the employees named in Appendix A attached hereto
immediate and full reinstatement to their former or substantially equivalent
812 DECISIONS OF NATIONAL LABOR - RELATIONS BOARD
positions without prejudice to any seniority or other rights and privileges
previously enjoyed, and make them whole for any loss of pay suffered as a
result of the discrimination.
WE WILL BARGAIN collectively upon request with the above-named union
as the exclusive representative of all employees in the bargaining unit de-
scribed herein with respect to rates of pay , hours of employment or other
conditions of employment , and if an understanding is reached , embody such
understanding in a signed agreement . The bargaining unit is:
All of the Respondent 's production and maintenance employees employed
at the Lowell plant, excluding office and clerical employees , watchmen,
executives , foremen and assistant foremen, and all other supervisory em-
ployees with authority to hire, promote , discharge , discipline , or otherwise
effect changes in the status of employees , or effectively recommend such
action, constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 ( b) of the Act.
The employees to be reinstated and made whole are :
Named in Appendix A attached hereto.
All our employees are free to become or remain members of the above-named
union 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 membership in or activity on behalf of any such labor
organization.
UNITED ELASTIC CORPORATION,
Employer.
Dated-------------------- By----------------------------------
(Representative) (Title)
NOTE : Any of the above-named employees presently serving in the Armed
Forces of the United States will be offered full reinstatement upon application
in accordance with the Selective Service Act after discharge from the Armed
Forces.
This notice must remain posted for 60 days from the date hereof, and must
not be altered , defaced, or covered by any other material.