Young Spring and Wire Corp.

National Labor Relations Board - Board Decisions

Sep 18, 1962

138 N.L.R.B. 643 (N.L.R.B. 1962)

YOUNG SPRING AND 1VIRE CORPORATION 643,
that the said loss of pay be computed in accordance with the formula and method pre-
scribed by the Board in F. W. Woolworth Company, 90 NLRB 289, to which the
parties to this proceeding are expressly referred.
Upon the basis of the foregoing findings of fact, and upon the entire record in
this proceeding, I make the following:
CONCLUSIONS OF LAW
1. Stoddard-Quirk Manufacturing Co. is, and has been at all times material to.
this proceeding, an employer within the meaning of Section 2(2) of the Act.
2. International Woodworkers of America, AFL-C10, is, and has been at all
times material to this proceeding, a labor organization within the meaning of Section
2(5) of the Act.
3. By discriminatorily discharging Carroll Tweedy, as found above, the said
Company has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (3) of the Act.
4. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed them by Section 7 of the Act, as found above, the said Company
has engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Young Spring and Wire Corporation and Louis Reeves and
William Mitchell . Case No. 18-Cg-38I,4. September 18, 1962
DECISION AND ORDER
On April 21, 1961, Trial Examiner tiWrilliam Seagle issued his Inter-
mediate Report in, the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Intermediate
Report. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report and a supporting brief. The General Counsel filed
a brief in support of the Intermediate Report.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection With this case to a three-member-
panel [Chairman McCulloch and Members Leedom and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this proceeding, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, with the following addi-
tions and modifications.'
'We find no merit In Respondent's contention that the Trial Examiner was biased
However, we do not adopt the Trial Examiner's hyperbolic comment, albeit in a facetious
vein, that, in view of the widespread gambling activities at Respondent's plant. it might
be described as a "gambling establishment" rather than as an automotive parts 'factory
138 NLRB No. 76.
6621 3-f,3-vol 133-42
'644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. We find, like the Trial Examiner, that the Respondent first sus-
-pended Reeves and then discharged him because of his solicitation of
signatures on a decertification petition during nonworking time, and
that by such action the Respondent violated Section 8(a) (3) and (1)
'of the Act.2
2. We agree with the Trial Examiner that the Respondent unlaw-
fully discharged Mitchell because of his participation in the work stop-
page precipitated by the suspension of Reeves. Like the Trial Ex-
aminer, we find that the Respondent's reliance on the Mid-West Metal-
lie Products, Inc., case 3 is misplaced. In so finding we rely
particularly on the following considerations :
The issue common to the case at bar and Mid-West Metallic Prod-
ucts, Inc., is whether a work stoppage in protest of an unfair labor
practice (here, the suspension of Reeves) violated a no-strike clause
and is therefore unprotected. In Mid-West Metallic, where the con-
tract clause suspended the right to strike only for the relatively brief
period (5 days, in that case) required to process a grievance over the
subject matter of the strike, the Board construed such clause as ap-
plicable to the unfair labor practice strike in that case. Here, the
contract contains a clause which is similar to that in Mid-West Metal-
lic in that it suspends the right to strike during the processing of a
grievance. However, the instant clause differs from that in Mid-
West Metallic in regard to the conditions under which the right to
strike is suspended. This may be made clear by a comparison of the
language of the two clauses.
In Mid-West Metallic, the contract provided as follows:
Should differences arise between the Company and the Union,
or the Company and an employee, concerning any discharge, or
layoff, or wages, hours, working conditions, or personnel practices,
or any other matter properly and customarily the subject of
grievance including the application or violation of any provision
of this Agreement, there shall be no interruption of normal produc-
tion, slow downs, strikes, or lockouts, nor any other action taken
2 As to the suspension , we rely principally on Reeves ' testimony , credited by the Trial
Examiner, which indicates that Personnel Manager Klug suspended him for circulating
the petition and not, as Klug testified , for refusing to show the petition to Klug. As to
the discharge of Reeves , 3 days after his suspension , we agree with the Trial Examiner
in rejecting King's testimony that the discharge was based solely on Reeves' refusal to
leave the premises when he was suspended . King was unable to explain satisfactorily
why it required 3 days of "study " before he could make a decision to discharge Reeves
for such insubordination , or why it was necessary for him to confer with Respondent's
labor relations counsel. These circumstances , as well as a portion of King's own testi-
mony, are persuasive that the circulation of the petition motivated the decision to dis-
charge Reeves , and that his insubordination was merely an afterthought . Moreover,
insofar as such insubordination was, as Respondent contends , related to the work stoppage
discussed below, it constituted protected concerted activity , and any discharge on account
thereof would be unlawful, in any event.
3121 NLRB 1317.
YOUNG SPRING AND WIRE CORPORATION 645
by the Union or an employee on account of such grievance until
all steps in the grievance procedure set forth have been observed
and these steps have failed to produce a settlement. [Emphasis
supplied.]
There follow provisions for a grievance procedure, culminating in
arbitration. It is thus clear from the foregoing that the contract
barred stoppages because of any "differences," including disputes of
the type involved in that case (a dispute over suspension of an em-
ployee), and did not require that the dispute involve the terms of the
contract.4
Here, the pertinent contract provisions are as follows :
Article III, section 1, sets forth a four-step grievance procedure.'
Article III, section 2, provides :
Any employee discharged, suspended, or otherwise penalized
shall have the right to submit his case if he so desires as a
grievance under the grievance procedure as herein outlined for
disposition in accordance therewith.'
Article III, section 6, provides :
There shall be no strikes, suspension of work or slowdown by
the members of the Union, or lockout by the Company, because
of any grievance or complaint arising under the terms of this
agreement while such matters are still under investigation or
negotiation for settlement. [Emphasis supplied.]
It is evident from the foregoing that the no-strike clause bans only
stoppages in connection with a "grievance or complaint arising under
the terms of" the agreement. However, the agreement contains no sub-
-stantive provision limiting the right of the Respondent to suspend an
'employee as a disciplinary measure. Accordingly, there appears to be
no basis for finding that any "complaint" because of the suspension of
Reeves was a complaint "arising under the terms of" the agreement.
By the same token, if the phrase "arising under this agreement" is
-also construed to govern the term "grievance," it is not clear how any
grievance on account of Reeves' disciplinary suspension could be
deemed to arise under the agreement. Moreover, the record shows,
in any event, that no such grievance was filed by Reeves at any time.
Accordingly, we find that the contract was not breached by the work
stoppage protesting Reeves' suspension, that such stoppage constituted
protected concerted activity, and that the discharge of Mitchell because
'Moreover , the respondent in that case cited a violation of the contract as one of the
grounds for suspension of the employees.
5 There is no provision for arbitration.
O This section also provides that the Union may bypass the first three steps of the
grievance procedure with respect to such grievances.
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of his participation therein violated Section 8 ( a) (3) and ( 1) of the
Act.'
3. It follows from the foregoing that, as the Trial Examiner found,
the Respondent violated Section 8 (a) (1) of the Act by the issuance of
disciplinary notices to a number of employees who participated in the
August 19 work stoppage.
4. The Trial Examiner found that the Respondent violated Section
8 (a) (1) of the Act by the adoption in September 1960 of rules for-
bidding ( a) unauthorized solicitation ( including union solicitation)
on Respondent 's premises, and (b ) unauthorized distribution of litera-
ture ( including union literature ) on Respondent 's premises. As to
(a), we agree that the rule was unlawful insofar as it prohibited union
solicitation on nonworking time. As to ( b), we agree with the Trial
Examiner that such rule was unlawful insofar as it prohibited dis-
tribution of union literature in nonworking areas (e.g., the plant
parking lot) during nonworking time, but we do not agree that the
application of the rule to working areas was unlawful.'
ORDER
Upon the basis of the entire record in the case, and pursuant to Sec-
tion 10(c) of the National Labor Relations Act, as amended, the Na-
tional Labor Relations Board hereby orders that the Respondent,
Young Spring and Wire Corporation, its officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Encouraging membership in Local 1714, International Asso-
ciation of Machinists, AFL-CIO, or any other labor organization
of its employees, or discouraging concerted activities on the part of
its employees, by discriminatorily suspending or discharging any of
its employees, or by issuing disciplinary action notices to them, or by
otherwise discriminating with respect to their hire or tenure of em-
ployment or any term or condition of their employment, except as
authorized by Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
(b) Maintaining and enforcing rules prohibiting its employees from
engaging in solicitation on company premises during their nonwork-
ing time in connection with their concerted activities or prohibiting the-
distribution of literature relating to such activities in nonworking-
areas during nonworking time.
7 we need not decide whether , as Respondent contends , Mitchell ' s discharge was justi-
fied by his alleged insolent retort to Barduskis ' admonition , as the Trial Examiner
credited Mitchell's denial of such remark, and we find insufficient basis in the record for
disturbing this determination
8 S-e Stoddard-Quirt; Manufacturing Co, 138 NLRB 615. For reasons stated in his
dissenting opinion in the Stoddard - Quirk case , Member Brown would affirm the Trial
Examiner 's finding and recommended order in this connection and he therefore dissents-
to the majority 's modification thereof.
YOUNG SPRING AND WIRE CORPORATION 647
(c) In any other manner interfering with, restraining, or coercing
its employees in their rights to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives
of their own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities, except to the extent that
such rights may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized in
Section 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer to Louis Reeves and William Mitchell immediate and
full reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges,
and make them whole for any loss of pay they may have suffered by
reason of the Respondent's discriminations against them in the manner
and to the extent set forth in section V of the Intermediate Report
entitled "The Remedy."
(b) Serve notices upon its employees, F. Bell, N. Logan, M. Mer-
cado, P. McGinnis, A. Butts, Jr., C. Stringer, J. Adams, L. Harland,
L. Jackson, C. Mays, O. Cobb, D. Parks, C. Johnson, J. Nelson, S. Lilly,
R. Spearel, O. McCombs, W. Ward, J. Burton, B. Cross, J. Wesley,
E. Bednarek, D. Hughes, L. Marshall, and E. Stanley, revoking the
disciplinary action notices hitherto served upon them.
(c) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to determine the backpay due.
(d) Post in its Chicago plant copies of the notice attached hereto
marked "Appendix." s Copies of such notice, to be furnished by
the Regional Director for the Thirteenth Region, shall, after being
duly signed by the Respondent's authorized representative, be posted
by the Respondent immediately upon receipt thereof, and be main-
tained by it for a period of 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or covered by any
,other material.
(e) Notify the Regional Director of the Thirteenth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
9In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify you that :
WE WILL NOT maintain or enforce any rule prohibiting em-
ployees from engaging in solicitation on company premises dur-
ing their nonworking time in connection with any of their con-
certed activities , or from distributing literature relating to such
activities in nonworking areas during nonworking time.
WE WILL NOT encourage membership in Local 1714 , Interna-
tional Association of Machinists , AFL-CIO, or any other labor
organization of our employees , or discourage concerted activities
on the part of our employees by discriminatorily suspending or
discharging any of our employees , or by issuing disciplinary
action notices to them, or by otherwise discriminating with re-
spect to their hire or tenure of employment or any term or condi-
tion of their employment , except as authorized by Section
8 (a) (3) of the Act, as modified by the Labor -Management Re-
porting and Disclosure Act of 1959.
WE WILL NOT interfere with, restrain , or coerce our employees
in their rights to self-organization , to form, join , or assist labor
organizations , to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or
protection , or to refrain from any or all such activities , except
to the extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condition of
employment , as authorized in Section 8(a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure
Act of 1959.
WE WILL offer to Louis Reeves and William Mitchell immediate
and full reinstatement to their former or substantially equivalent
positions , without prejudice to their seniority or other rights and
privileges , and make them whole for any loss of earnings they
may have suffered by reason of our discrimination against them-
WE WILL revoke the disciplinary notices issued to F. Bell,
N. Logan, M. Mercado , P. McGinnis , A. Butts, Jr., C. Stringer,
J. Adams, L. Harland , L. Jackson, C. Mays, O. Cobb. D. Parks,
C. Johnson, J. Nelson, S. Lilly, R. Spearel , O. McCombs, W.
Ward, J. Burton, B. Cross, J. Wesley, E. Bednarek , D. Hughes,
L. Marshall , and E . Stanley because they had engaged in pro-
tected concerted activities.
YOUNG SPRING AND WIRE CORPORATION 649
All our employees are free to become, remain, or refrain from,
becoming or remaining members of any labor organization.
YOUNG SPRING AND WIRE CORPORATION,
Employer.
Dated---------------- By--------------------------------------
(Representative) (Title)
NoTi; We will notify any of the above-named employees presently
serving in the Armed Forces of the United States of their right to,
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.
Employees may communicate directly with the Board's Regional
Office, Midland Building, 176 West Adams Street, Chicago 3, Illinois,
Telephone Number Central 6-9660, if they have any question con-
cerning this notice or compliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
The amended complaint charges the Respondent with violations of Section 8(a) (1)
and (3) of the Act. Specifically, the complaint charges the Respondent with (1)
the promulgation, on or about September 15, 1960, of a rule prohibiting solicitation
and the distribution of literature in its plant at Chicago, Illinois; (2) the discrimina-
tory suspension of one of the Respondent's employees, Louis Reeves, on August
19, 1960, and his discriminatory discharge on August 22, 1960; (3) the discrimina-
tory discharge of another of the Respondent's employees, William Mitchell, on
August 19, 1960; and (4) the issuance of discriminatory disciplinary action notices to
25 of the Respondent's employees.
On December 13 and 14, 1960, Trial Examiner William Seagle held a hearing at
Chicago, Illinois, with respect to the charges against the Respondent. The parties
waived oral argument at the hearing but, subsequent to the hearing, briefs were filed
on behalf of the General Counsel and the Respondent, and I have considered these
briefs.
Upon the record so made, and based upon my observations of the witnesses, I make
the following:
FINDINGS OF FACT
1. THE RESPONDENT
The Respondent, Young Spring and Wire Corporation, is a Michigan corporation,
operating manufacturing plants and facilities in the States of California, Michigan,
Ohio, Kansas, and Illinois. The Respondent's plant in Illinois, which is located at
6601 South Oak Park Avenue, Chicago, is devoted to the manufacture of automotive
parts.
In the course of its business operations during the past year, the Respondent did'
a total gross volume of business in excess of $10,000,000. During the same period„
the Respondent received at its Chicago, Illinois, plant materials which were valued'
at more than $1,000,000 and which were shipped to it from points outside the State
of Illinois, and the Respondent shipped from its Chicago, Illinois, plant to points
outside the State of Illinois finished products valued at more than $1,000,000.
H. THE UNION
Local 1714, International Association of Machinists, AFL-CIO (hereinafter
referred to as the Union), is a labor organization which on August 1, 1959, entered
into an agreement with the Respondent covering its production and maintenance
employees.
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
In the period immediately preceding the filing of charges of unfair labor practices
against the Respondent, a singularly unhappy situation existed in the Respondent's
'Chicago plant. Conditions in the plant were chaotic. Apparently, people were
wandering about the premises, working hours were irregular, and many employees
were not usefully engaged. The problems caused by these conditions were only
aggravated when employment rose from 900 in September 1959 to some 2,300 in
February 1960.
One of the deplorable aspects of the situation in the plant was the existence of
widespread gambling activities. Indeed, gambling was so rife that the plant might
more appropriately be described as a gambling establishment than an automotive
parts factory. Baseball and football pools, as well as check pools,' were in operation;
Irish Hospitals' Sweepstakes Tickets were sold; and bets were taken on horseracing.2
Even narcotics were sold and prostitution was not unknown. There is no doubt,
moreover, that the gambling activities were well known to the Respondent's executive
and supervisory employees, and that they had long been tolerated.3
In February 1960, a new manager by the name of Oren Leslie was brought in to
bring some order into the plant's operations. Leslie testified that he undertook
a program of management training, plant security, the codification of existing rules,
the regulation of working hours, so that they would be put on a uniform basis, and
the preparation of efficiency reports. Leslie also testified that as a result of these
measures, operating efficiency, which had been about 65 percent when he took over
the management of the plant, increased to '104 percent in December 1960, and that
gambling was reduced. So far as gambling is concerned, however, his belief that
gambling had been reduced must be pronounced overly optimistic. Toward the
end of September 1960, the Chicago police had a complaint that gambling was
prevalent in the Respondent's plant, and Sergeant Anthony J. Zolna, who initiated an
investigation of the gambling activities there, saw Leslie on October 3, 1960, and
gave him a report of their extent. In the course of his testimony at the hearing,
Sgt. Zolna expressed the opinion that the gambling activities carried on in the plant,
being intramural, must have been of long standing and tolerated by officials of the
'Company.
In addition to the gambling and other difficulties, the labor relations of the
Respondent at the Chicago plant took a turn for the worse early in 1960. The Re-
spondent had had contractual relations with Local 1714 of the International Associa-
tion of Machinists, District No. 8, since 1943. The agreement in effect in 1960,
was entered into between the Respondent and the Union on August 1, 1959, and it
provided that it should continue in effect until August 1, 1962, and from year to
year thereafter unless notice of termination were given by either of the parties
60 days prior to the annual expiration date.
Several other provisions of the agreement are particularly pertinent. Article I of
the agreement defined its scope as follows:
It is understood and agreed between the Company and the Union that the
purpose of this Agreement is to set forth the basic understanding covering rates
of pay, hours of work, conditions of employment and also to provide a means
of adjusting any differences which may arise during the period of this agree-
ment.
Article II, paragraph 4, of the agreement provided that all employees covered by it,
namely, all production and maintenance employees, should become and remain mem-
bers of the Union in good standing within 60 days of their hiring dates. Article III
set forth a procedure, in four steps, to be followed by the Union in handling indi-
vidual and group grievances with the Company. Paragraph 2 of this article pro-
vided:
Any employee discharged, suspended, or otherwise penalized shall have the
right to submit his case, if he so desires as a grievance under the grievance pro-
cedure as herein outlined for disposition in accordance therewith. The Union
may, if it elects to do so, refer this grievance as stated in Step #4 without
processing the grievance through steps 1, 2, and 3.4
1 This resembled poker and was played every Friday.
3 The bookie was Frank Kerrigan , the chairman of the union bargaining committee.
8 There Is also evidence that one of the foremen , Joe Barduskis , was involved in a
poker game with the employees in 1958, and that the foremen played pinochle during
the lunch hour.
4 The various steps are hierarchical.
YOUNG SPRING AND WIRE CORPORATION 651
In this connection, it was further provided in paragraph 6 of the same article:
There shall be no strikes, suspensions of work or slowdown by members of
the Union, or lockout by the Company because of any grievance or complaint-
arising under the terms of this agreement while such matters are still under
investigation or negotiation for settlement.5
Notwithstanding the existence of the union contract, however, some of the Re-
spondent's employees became dissatisfied with the way the Union was representing
them, and in March 1960 they decided to attempt to effect a change in union rep-
resentation. With this end in view, they had white cards printed on which appeared
the question: "Do you want the I.A.M. for your bargaining agency?" and two squares
marked, respectively, "Yes" and "No." These cards were distributed in the plant in
March and April to the Respondent's employees, and about 700 of them checked and
signed the cards. These cards were collected principally by three of the Respondent's
employees, Louis Reeves, William Mitchell, and Clinton Johnson. Mitchell then
took the cards to the Board's Regional Office but he was told there that the cards
were "no good" because they were undated.
The group of employees interested in procuring the decertification of the Union
took no further steps until August when they contacted a lawyer who prepared a
form of decertification petition for them, and instructed them to secure signatures
to the petition but not on company time. It took some time to get the petitions pre-
pared, and they were not ready until August 9. Mitchell, who had been laid off on
August 3, and who was not to be called back to work until August 18, called for
the petitions on August 9, and took some into the plant the following day, giving
them to Reeves and Johnson, and two other employees, who commenced to dis-
tribute them among their fellow employees.
Raymond L. Klug, the personnel manager at the plant, had known of the distri-
bution of the I.A.M. cards in April. A supervisor had brought one of the cards to
him, and told him that they were being distributed to the employees during their
lunch hour. Klug testified that he was not interested enough to inquire what em-
ployees were distributing the cards, and that he took no action to put a stop to their
distribution because he recognized that under the provisions of the National Labor
Relations Act the employees had a right to participate in such activity.
Klug did not exhibit a like tolerance, however, when he learned of the circula--
tion of the decertification petition on August 19, which was a Friday. The same
Louis Reeves who had been a prime mover in the distribution of the I.A M. cards,
was fulfilling the same role in the circulation of the decertification petition. He
was soliciting signatures to the petition during his break periods and lunch hour, as
well as before and after his working hours. On one occasion, as he was signing
somebody up to the petition, KIug walked right by him. However, it was not until
about noon, August 19, that Reeves was summonded to Klug's office by Marvin
("Red") Swanson, one of the foremen. When he entered the office, Klug asked
Reeves why he had been soliciting on company property. Reeves pointed out that
he had been doing this on his own time. Klug observed that he was nevertheless
doing this on company property, and also asked him whether he realized that they
already had a union and a union contract. Reeves' response to this was: "Yeah,
and that's about all we got is a contract, too, because this union ain't doing us no
good " Whereupon Klug told Reeves. "Well, I am going to have to suspend you,"
and filled in and signed a "Change in Employee Status" slip in which the reason for
the change in Reeves' status was given as "Suspended until further notice. Circulat-
ing petition on company premises."
After filling out the slip, Klug told Swanson to see Reeves off the premises but
Reeves first had to go to the washroom to change his clothes, and to go back to his
workbench in order to turn in his helmet. He also had to go downstairs where he
had left his workshoes. In the course of these peregrinations, Reeves encountered
two of his fellow employees, Stanley and Adams, and acquainted them with the fact
that he had been suspended for circulating the decertification petition. Swanson
informed Reeves that Klug was waiting for him at the timeclocks. The reason for
Klug's presence in the timeclock area was that the regular employee's entrance was
locked at the time, and he had proceeded to this area so that he could let Reeves out
through a service door. As Swanson and Reeves came down the aisle toward the
timeclocks, other employees coming from the production area fell in behind them.
and followed them to the timeclock area. Various witnesses estimated the number
of employees who congregated there as from 30 to 70 but the lower figure is the more
probable. As Reeves reached the timeclocks, Klug instructed him to punch his time-
card and leave but Reeves, who did not wish to create the impression that he was
All the emphasis in quoting from the provisions of the agreement are supplied.
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
leaving voluntarily, declined to punch his timecard, telling Klug that since he was
the one who wanted the card punched out he had better do it himself. Moreover,
the other two employees who with Reeves had been the most active in circulating
the petition, namely, William Mitchell and Clinton Johnson, had arrived by this time,
and the latter advised Reeves not to punch out. Johnson and Mitchell started to
argue with Klug about Reeves' suspension, maintaining that the latter had done
nothing wrong. Klug told them that Reeves was being suspended for soliciting on
company premises but they asked Klug why if there was such a rule it had never
been posted on the bulletin board. Klug got side-tracked by some of the employees
who were following him about, and apparently he also had some difficulty in finding
Reeves' timecard. When he finally found it, he did not punch it out but wrote 12
p.m., on it as Reeves' time "out." Reeves had not left while his fellow employees were
still arguing against his suspensions But Klug now told Reeves that unless he left
he would have him thrown out, and Reeves at once left the plant.
While the work stoppage was in progress, Klug also ordered the other employees
who had congregated at the timeclocks to get back to work but they would not leave,
and kept following him around. Thus beset, Klug decided to summon reinforce-
ments, and sent Red Swanson to get Joe Barduskis, the superintendent of the tube
division, who was in the plant cafeteria at the time. Barduskis hastened to the scene,
and hearing a number of employees say that Reeves had been discharged, he realized
that a work stoppage was in progress. He even asked Reeves what was wrong, and
Reeves told him that he had been suspended. Barduskis started shouting at the
men repeatedly to get back to work or they would be fired. But they kept milling
around and, finally, -Barduskis, without stopping to talk to anyone else, made straight
for Mitchell who was all the way in the back near the timeclocks, and without any
preliminaries said angrily to him three times in rapid succession: "Get back to work,
get back to work, get back to work," to which he added: "You're fired." Mitchell
asked Barduskis why he had singled him out, and Barduskis said that he had told
him three times to get back to work. Barduskis also told Mitchell to accompany
Klug to the personnel office, and on the way there, Mitchell also asked Klug why
Barduskis had singled him out. Klug just grinned and remarked: "I suppose he has
his reasons. Now he told you to go back to work. You didn't." Mitchell replied
to this: "Yes, he told all of them to go back to work, and they didn't, and 'I'm the
only one fired." From the moment that he had heard of Reeves' suspension, Mitchell
had been apprehensive that he would be fired, for he knew that he had been as
active as Reeves in the promotion of the decertification petition. When Klug ar-
rived at his office, he made out a "Change in Employee Status" slip for Mitchell on
which the reason for the change was given as "Walked off job. Refused to return
to work."
As Reeves had only been suspended, however, it was still necessary for Klug to
decide what further action to take with respect to him. Having disposed of Mitchell,
Klug, although he, himself, had authority to discharge employees, proceeded to dis-
cuss the case of Reeves with E. D. Riordan of the Respondent's labor relations staff
and, according to •Klug, they decided to convert the suspension of Reeves into a
discharge. But Klug did not inform Reeves of his discharge that same Friday after-
noon, nor on Saturday afternoon, although King regularly worked on Saturday after-
noons It was not until 3:37 p.m., on Monday, August 22, that Klug directed that
the following telegram be sent to Reeves:
This is to advise that you have been discharged as a result of your refusal to
leave the Company's premises after suspension on August 19, 1960.
The discharge of Mitchell and Reeves was not the only disciplinary action taken
by the Respondent's executives as a result of the work stoppage of August 19. In
addition to Klug, Barduskis, and Swanson, there were several foremen present in
the timeclock area where the work stoppage occurred and, apparently, they took
down the names of the employees who were participating in it. That same day 25
of the Respondent's employees received warnings characterized as "Disciplinary
Action" notices in which the explanation of the action was given as "Walked off
job without permission. Repeated violation will lead to discharge." R Among these
employees were Jack Adams and Clinton Johnson, who testified at the hearing
on behalf of the General Counsel. 8
e Indeed, when King told Reeves to leave, Clinton Johnson spoke up and said: "No, he
is not going to leave the building."
7 The fact that only 25 employees received these warning notices supports my conclusion
that the number of employees participating in the work stoppage was nearer 30 than 70.
8 The names of the 23 other employees who participated in the work stoppage are:
F. Bell , N. Logan , M. Mercado , P. McGinnis , A. Butts, Jr., C. Stringer , L. Harland,
YOUNG SPRING AND WIRE CORPORATION 653
As an aftermath of the events of August 19, in the course of which the question
of soliciting on company premises had been raised, the Respondent's executives
proceeded to arrange for the printing and distribution of a booklet, containing the
regulations governing the activities of the employees at the Respondent's Chicago
plant. This booklet was entitled "Factory Regulations," and bore the date August
1, 1960. It was distributed to the employees in the middle of September 1960, and
it was also posted on the plant bulletin board.
The "Factory Regulations" thus issued reflect the impact of the events culminating
in the work stoppage of August 19 and their background. Rule 1 of the "General"
rules in the booklet declared: "Employees are expected to be at their work stations
at the designated starting time, and may not leave their station during working
hours without permission of supervisor." Among the "Rules for Personal Conduct"
in the booklet, for violation of which a penalty varying from reprimand to discharge
might be imposed, were the following:
16. Unauthorized soliciting or collecting contributions for any purpose what-
soever on Company premises.
17. Unauthorized distribution of literature, written or printed matter of any
description on Company premises.
27. Gambling, lottery, or any other games of chance on Company premises
at any time.
30. Possession of or the use of narcotics, liquor or any alcoholic beverages
on Company property at any time (including parking lot and roadways). Re-
porting for work under influence of alcohol or narcotics or in an unsafe
condition.
32. Immoral conduct or indecency.
Through its principal witness, Klug, the Respondent advanced a version of the
events of August 19, and those that followed them, that would have a good deal of
persuasiveness if the testimony of the personnel manager were true. Klug testified
that ever since the plant had been in operation there had been rules in the plant
against unauthorized solicitation or distribution of literature, and also against
"gambling of any kind or type" on the company premises; that in the latter part of
February 1960, he had received oral instructions to enforce these rules more effective-
ly, and to have them reduced to writing; that on August 19, when he received word
from Red Swanson of Reeves' activity, he was told that Reeves had been observed
"handling a paper requiring some information from employees"; that when he
questioned Reeves, the latter told him that he was circulating a petition to get another
union in the plant; that after expostulating with him that they already had a union
in the plant, he asked Reeves to show him the paper which he had been circulating
because he felt that he had a right to see any paper in order to determine whether
its circulation was against the rules, especially since there had been instances of
gambling, vice, narcotics, and drinking which he had been instructed to control
more effectively; and that when Reeves refused to show him the paper he had been
circulating, he decided to suspend him, pending further investigation.
I cannot credit Klug's testimony, for it is irreconcilable with the stubborn facts,
and is full of manifestly absured contradictions and improbabilities.
In the first place, I cannot believe in the existence of the alleged rules against
solicitation and distribution of literature prior to the events of August 19. No such
rules had ever been communicated to the employees. Jack Adams, employed by
Respondent for approximately 2 years, Louis Reeves, employed by the Respondent
for approximately 8 years, and Clinton Johnson, employed by Respondent for over
9 years, testified that they had never heard of any such rules. It was the custom,
moreover, to post any changes in rules on the plant bulletin board, and such postings
had occurred in 1960 with respect to a change in the hours of the third shift, and
with respect to the necessity of employees remaining at their work station until 5
minutes before quitting time. If Leslie, .the new plant manager, was really insisting
as early as February 1960 that gambling be eradicated and that rules be observed,
it is strange that reminders to the employees should not have been posted prior
to the discharge of Reeves. The fact that gambling activities, which obviously
involved solicitation, continued unabated for a considerable time after his discharge,
is hardly consistent with a recoenized rule on the subiect. The very fact that Klug
suspended Reeves rather than discharge him for violating the alleged no-solicitation
rule, indicates in itself that he did not feel very sure of his ground. A rule may exist,
L. Jackson, C. Mays, 0. Cobb, D. Parks, J. Nelson, S Lilly, R. Spearel, 0. McCombs,
W. Ward, J. Burton , B. Cross, J. Wesley, E. Bednarek , D. Hughes, L. Marshall, and
E. Stanley.
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to be sure, in a sense, even though it may be frequently honored in the breach but
if the no-solicitation rule was of this variety, the question at once arises why it should
suddenly have been enforced against Reeves. This question bothered Klug, too,
but what he did was to attempt to evade it by asserting, contrary to the truth and the
testimony of Leslie, as well as Sergeant Zolna, both of them the Respondent's own
witnesses, that the rule against gambling had been effectively enforced for years!
Actually, if Leslie ever mentioned to Klug, the desirability of putting the plant
rules into writing, which I doubt, he certainly did not leave him with the impression
that the accomplishment of this task had any urgency. According to Klug's own
testimony, he started collecting the rules "about the first part of April" but he did
not complete this job until "approximately the 1st of July," and they were not sub-
mitted to the printer until "shortly after the 1st of August, 1960" and the printing
was not completed until "the latter part of August." Thus, it took Klug approxi-
mately 3 months to assemble the rules, and then he waited another month before
even sending them to the printer, and the printer took almost a month to put the
little six-page booklet in type. Even more remarkably Klug waited almost another
month and a half before distributing the booklet to the employees. All in all the
alleged codification project occupied over 9 months, and considering factors of rela-
tive complexity and magnitude, Klug's "Factory Regulations" took as long to
prepare as Justinian's Corpus luris Civilis or the Code Napoleon or Das buirgerliche
Gesetzbuch. Klug also testified that, in June 1960, he had shown a typewritten draft
of the rules to the business representative of the Union, and invited his comments,
but there is no evidence that the union representative had any comments to offer
and Klug could not produce the typewritten draft of the rules which, he thought,
had "probably been destroyed by now." While the "Factory Regulations" doubtless.
contained rules that were already recognized, it is equally plain that they reflected
the Respondent's unhappy experience with the recent work stoppage, and I believe
that the work of codification itself was inspired by it. As Justice Holmes once
said: "Legislation may begin where an evil begins."
Of course, since gambling activities are illegal in Illinois, the Respondent did
not need to have a plant rule against gambling to justify a suspension or a discharge.
But if gambling had been effectively suppressed for years, why did Klug manifest
such extreme suspicion when he heard that Reeves was circulating a paper, especially
since Reeves had never himself participated in any of the gambling activities? Why
did he not believe Reeves when the latter told him that he was circulating a petition
against the Union, especially since he knew from the episode of the I A M. card
that sentiment had been running against the Union? That what concerned Klug
was the peril to the Union with which the Respondent had a contract rather than
the possibility that Reeves was involved in a gambling activity is manifest alone
from Klug's expostulation that they already had a union. When the work stoppage
occurred as a result of Reeves' suspension, Klug, according to his own testimony,
told various of the employees that Reeves' case could be handled through the union
grievance procedure. If Reeves' offense was that he was involved in a gambling
racket, would the union grievance procedure have been uppermost in Kiug's mind?
When Clinton Johnson was protesting against Reeves' discharge, Klug told him-
again this is according to Klug's own testimony-"that Reeves had not been dis-
charged but that he was suspended for circulating a petition in the plant." Klug did
not tell Johnson that Reeves had been suspended for refusing to reveal what sort
of paper he had been circulating in the plant. Klug also testified that he had refrained
from asking Swanson what Reeves had been circulating. If Klug refrained from
asking such an obvious question, it could be only because he knew the answer. Q'
The most extraordinary aspect of Klug's testimony with respect to the role of Swanson
is perhaps that Klug testified that he requested the foreman to remain in his office
during his interview with Reeves so that he would have a witness to the conversation
between them. Yet Swanson was never called as a witness to corroborate King's
story that, when he requested Reeves to show him the paper which he had been
circulating, Reeves refused to do so? Finally, Klug's testimony that he suspended
Reeves for refusing to show him the paper he was circulating is entirely inconsistent
with the reason that he gave in writing at the time of Reeves' suspension, which
was "Circulating petition on company premises." The reason given was not that
Reeves had declined upon request to show Klug a paper that he had been circulating
No good reason appears why Klug's contemporaneous written record of the suspen-
sion should be reiected in favor of his ex post facto invention.
9In this connection, it should be recalled that Reeves testified that on one occasion
when he was signing somebody up to the petition Klug walked right by.
YOUNG SPRING AND WIRE CORPORATION 655
I find, therefore, that Klug knew that Reeves was circulating an antiunion petition
and that he suspended him for this reason. But, once this conclusion is accepted,
it becomes quite impossible to believe that Reeves was subsequently discharged for
his "insubordination" in refusing to leave the plant. In the first place, there is no
very clear evidence that Reeves was insubordinate. It is true that, despite several
requests to leave, he remained in the timeclock area while his fellow employees
were attempting to get Klug to revoke his suspension. But he left as soon as Klug
made it plain that his presence would no longer be tolerated. However, if Reeves
was insubordinate in not leaving earlier, his insubordination was not the real reason
for his discharge. Klug could not satisfactorily explain why he had to wait 3 days
before coming to the conclusion that Reeves had been insubordinate in failing
to leave the plant when ordered to do so. Klug knew this before Reeves had left
the plant but he did not discharge him then. If, because of the prevailing con-
fusion caused by the work stoppage, Klug himself became too distracted to discharge
Reeves immediately, he could readily have sent the telegram discharging him later
the same day. Klug testified that he had not completed his study of the case until
the following day, Saturday, but even assuming that the fact of Reeves' insubordina-
tion was obscure and needed study, he did not send the telegram that day, although
the study was completed. Klug attempted, to be sure, to excuse his failure to send
the telegram on Saturday on the ground that he had no office staff available that
day but it hardly takes much of a staff to send a telegram, which can be dictated
over the telephone. Klug had plenty of office staff on the following Monday but
he waited until late in the day before directing the telegram to be sent. Actually,
the 3 days' delay in discharging Reeves was due to the hesitancy of the Respondent's
executives in deciding to take a step which they feared might involve them in
difficulties. The fact that Riordan was called into consultation indicates that Klug
was not dealing merely with a problem of insubordination. All the employees who
participated in the work stoppage had committed breaches of discipline, and they
had also remained in the timeclock area for a considerable period of time after
they had been ordered back to work, which was also insubordination. Moreover,
Clinton Johnson, in preventing Reeves from leaving the plant, had practically defied
Klug, and this was even more insubordinate. Yet none of these employees was
discharged for insubordination, or even suspended. Indeed, at one point in his
contradictory testimony, Klug admitted that Reeves' circulation of the petition
was a factor in his discharge. Thus, he explained that he had consulted the labor
relations department because he wanted to "make sure that there was justification
for discharge inasmuch as Mr Reeves would not produce evidence to the fact that
he was circulating a petition for union activity." Moreover, counsel for the Re-
spondent when asked at the hearing to state the reason for Reeves' discharge also
stated that he had been discharged because of his refusal to disclose his purpose
in soliciting "plus the insubordination at the timeclock." [Emphasis supplied.] It
is apparent, therefore, that even if insubordination was a factor in Reeves' discharge,
his circulation of the petition was also a factor. As it was undoubtedly a factor,
his discharge was discriminatory and violated the Act.
As for the case of Mitchell, it is apparent that Mitchell was in the timeclock
area to protest the suspension of Reeves, and Barduskis' own testimony shows that
he knew that Mitchell , as well as the other employees, were there for that purpose.
As Mitchell was one of the leaders in the work stoppage, which had been precipitated
by the unfair labor practice of the Respondent in suspending Reeves, it is equally
apparent that the discharge of Mitchell would be unlawful unless it could somehow
otherwise be justified.
The Respondent contends that Mitchell's insubordination in refusing to return
to work, although ordered to do so several times by Barduskis, was aggravated by
remarks challenging the authority of the superintendent in the presence of the
other employees. According to the testimony of Barduskis, the second time that
he admonished Mitchell that he might be discharged for leaving his work without
permission, Mitchell uttered two words: "For what?" and the third time that he
delivered the admonition, Mitchell, uttered two words again: "So what?" Mitchell
explicity denied that he made the latter remark. In this connection, he testified as
follows:
Q. Did you say anything to Barduskis?
A. The only thing I said to Barduskis, I told him, I told him "Hold it, you.
I want to talk to Mr. Klug."
Q. Let me ask you, when Barduskis told you to return to work, did you say
"For what?"
A. Did I use that particular word?
Q. Yes.
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. I couldn't say if I did or not. I may have.
Q. Did you possibly say "So what?"
A. No, sir.
Mitchell was a very confused witness when it came to remembering time sequences
and dates.to I nevertheless credit his denial that he said "So what" to Barduskis,
for it seems to me not only that his recollection on this point was clear but also
that Barduskis' version of his exchange with Mitchell is wholly incompatible with
the account of the incident given by Adams and Johnson who appear to have had
a clear recollection of it. However, even if I were to credit the testimony of Bar-
duskis, it seems to me that Mitchell by making the remark attributed to him was
only expressing his conviction that Barduskis' threats would not deter him from
the protest in which he and his fellow employees were engaged. If what he said
was insubordinate, he was only being articulately insubordinate, while the other
employees engaged in the work stoppage were mutely insubordinate. It seems to
me that insubordination during a work stoppage precipitated by an employer's
unfair labor practice is to be judged by different standards than those which should
obtain in the normal relations of employer and employee. The same degrees of
deference and politeness, whether in conduct or speech, is not reasonably to be
expected in both situations.
There remains the question posed by Mitchell when he was discharged by Bar-
duskis, namely, why, among all the employees who had participated in the work
stoppage, it was he who had been singled out? While the answer to this question
does not seem to be very obscure, it does not seem to me to be a question that
requires an answer, since it appears that Mitchell was singled out and discharged
because he had engaged in the concerted activity that was precipitated by the dis-
charge of Reeves.
Most of the Respondent's legal contentions require no comment, since they either
assume fictive situations or are otherwise untenable.
In a recent case in which an employer attempted to justify the discharge of an
employee for circulating a decertification petition on company premises on the ground
that the employee had violated a plant rule prohibiting solicitation on such premises
even during nonworking time, the Board held the justification to be invalid and the
discharge to be discriminatory." It would seem to be immaterial that in the present
case the decertification effort of the employees was launched more than 150 days be-
fore the terminal date of the contract with the Respondent,12 since there are other
considerations than timeliness which may make decertification proper.i3
ii Mitchell testified at first that he visited the plant during his layoff on several occa-
sions in the early afternoon, and that his delivery of the petitions to several employees
in the plant occurred during one of these visits. At a later point in his testimony, he
stated, however, that the visits must have occurred in the late afternoons, which would
be entirely possible since the Respondent's plant worked in three shifts, and there was a
late afternoon as well as a night shift. It was ultimately shown that during his layoff,
Mitchell worked from 7 a m. to 3:30 p.m.. for another employer, the Seco Steel Products
Corporation, and that the Seco plant was too far away from the Young Spring and Wire
plant for Mitchell to have been able to visit the latter plant in the early afternoon. This
testimony hardly supports, however, the extreme contentions of counsel for the Respondent
that all of Mitchell's testimony must be rejected and that hence no link between Reeves
and Mitchell has been established sufficient to them that they were engaged in a con-
certed activity. There is no question but that Mitchell visited the plant and delivered
copies of the petition to Reeves and several other employees. Mitchell was simply con-
fused as to whether his visits to the Young Spring and Wire plant occurred in the early
or the late afternoons. At the hearing counsel for the Respondent took a far less extreme
position than in his posthearing brief, for he stated at the hearing that he was not con-
tending that Mitchell did not visit the plant "on any occasion."
11 National Steel & Shipbusiding Corporation, 126 NLRB 900.
12 Under the contract-bar rules announced in Deluxe Metal Furniture Company, 121
NLRB 995, petitions must be filed more than 60 days but not over 150 days before the
terminal date of any contract.
13 Indeed, counsel for the Respondent argues only that the existence of the contract-bar
rule gave King an additional reason for doubting Reeves' explanation that he was circu-
lating a petition to get another union into the plant. At least two fallacies underlie this
argument. People frequently do what they have no legal right to do, and there is nothing
to show that Klug was any the more learned in the law than Reeves. Moreover, King
actually knew what the purpose of the petition was
YOUNG SPRING AND WIRE CORPORATION 657
Ever since Republic Aviation Corporation, 14 it has been well settled that, in the
absence of special circumstances, a broad rule prohibiting union activity on company
property during nonworking time constitutes an unreasonable impediment to self-
organization, and hence a violation of Section 8(a) (1) of the Act. By promulgat-
ing such a broad rule, the Respondent has also violated this provision of the Act,
since the record does not reveal special circumstances that would justify it. The
Respondent cannot contend that a broad ban was necessary to improve efficiency, since
its own manager testified that operating efficiency had been steadily increasing prior
to the promulgation of the rule. It is true that gambling and other forms of vice
were rife in the Respondent's plant but this situation was made the subject of separate
rules prohibiting gambling and other forms of vice, and there is no showing that the
prohibition of all forms of solicitation was necessary to reach the forms of solici-
tation involved in gambling and other illegal activities. To hold otherwise would
be to permit the Respondent's executives to deny to their employees the rights guaran-
teed by the Act in order to suppress activities which they had long tolerated, although
there was no necessary link between such activities and the prohibited conduct.
The considerations that are applicable to the broad ban on solicitation are also ap-
plicable to the Respondent's sweeping prohibition upon the unauthorized distribution.
of literature of any description, which would include union literature distributed on
nonworking time. There is no evidence that such a rule was necessary in the interest
of keeping the plant clean and orderly.
As there were actually no rules prohibiting solicitation and distribution of litera-
ture,in effect at the time of the suspension and discharge of Reeves and the discharge
of Mitchell, it is even clearer that these acts were discriminatory. The Respondent
also interposes as a defense, however, the no-strike provision of the agreement be-
tween itself and the Union and relies upon the Board's decision in Mid-West Metallic
Products, Inc., 121 NLRB 1317. In that case, which involved a strike precipitated
by the discriminatory discharge of an employee who was also seeking to oust a
recognized union, one of the provisions of the agreement between the employer and'
the union prohibited strikes on account of grievances, including grievances arising out
of discharges, until such time as the grievance procedure had been exhausted.
In holding that the strike in the Mid-West Metallic Products case constituted un-
protected activity, the Board distinguished the situation in that case from that present
in Mastro Plastics Corp., and French-American Reeds Mfg. Co., Inc. v. N.L.R B,
350 U.S. 270. The Supreme Court had held in that case that the no-strike clause,
which was for the duration of the term of the agreement,15 did not waive the right
of the employees to strike because of the unfair labor practice of the employer. The
Court held that the natural application of the clause was "to strikes and work stop-
pages involving the subject matter of the contract," which dealt with the economic
relationship between the parties, and that the right to strike against an employer's
unfair labor practice could be waived, if at all, only by explicit language to that
effect. The Board found the distinction between the two cases to lie in the differences
between the duration and the scope of the agreement in each case. It pointed out
that in the Mastro Plastics case, the union waived the right to strike during the entire
term of the contract, which the Court had said applied to the economic relationships
between the parties, while in the Mid-West Metallic Products case the union had
waived the right to strike over grievances, including discharges, only until the griev-
ance procedure provided in the agreement, which was of brief duration, should have
been exhausted. The Board concluded that since the union "did not jeopardize its
very existence by renouncing self-help against unfair labor practices for a substantial
period of time, there was no necessity to require an explicit waiver of the right to
strike against unfair labor practices."
It is true that the no-strike clauses in both Mid-West Metallic Products and the,
present case are alike in being limited to the duration of the grievance procedure.
The clauses are also alike in that they are made binding not only on the Union but
also on the individual members of the Union.16 However, the grievance adjustment
14 51 NLRB 1186, enfd. 142 F. 2d 193 (C A. 2), affd 324 U S. 793
is In its entirety, the no-strike clause read • "The Union agrees that during the term of
this agreement, there shall be no interference of any kind with the operations of the
Employers, or any Interruptions or slackening of production of work by any of its mem-
bers The Union further agrees to refrain from engaging in any strike or work stoppage
during the term of this agreement."
16 Counsel for the General Counsel appears to argue that the clause "does not prohibit
work stoppages by employees who are not members of the Union " This argument would
seem to overlook the fact that all the employees covered by the agreement except those-
employees who had been employed less than 60 days, would necessarily be members of the-
Union. Certainly Reeves and Mitchell were members of the Union.
p658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and strike provisions in the present case are different in two important respects from
those in Mid-West Metallic Products. So far as discharges and suspensions are
concerned, it is clearly left to the individual employee to determine whether to
present his discharge or suspension as a grievance, for it is expressly provided that
he may submit his case only "if he so desires." So far as other matters are con-
cerned, they must be matters "arising under the terms of this agreement." It would
certainly be a strained construction to say that an attempt by employees to decertify
the Union fell into this category, particularly in view of the Supreme Court's pro-
'nouncement in Mastro Plastics that normally collective-bargaining agreements must
be assumed to deal only with the economic relationships between the parties. More-
over, a construction should not be indulged which would require the members of the
Union to present grievances through the Union when their whole objective was to
,end the Union's right to represent them. The presentation through the Union of
such a grievance would obviously be futile.
In Mid-West Metallic Products the Board declared: "We specifically limit our
finding of implied union waiver of the right to strike to circumstances such as in-
volved in this case." The circumstances of the present case seem to me quite dif-
ferent. I must conclude, therefore, that, in participating in the work stoppage in
the present case, the employees were engaged in a protected concerted activity, and
that the no-strike clause affords the Respondent no defense.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
I find that 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 to labor disputes burdening and obstructing
-commerce and the free flow of commerce.
V. THE REMEDY
As I have found that the Respondent has engaged in unfair labor practices in
violation of Section 8(a)(1) and (3) of the Act, and such practices appear to be of
considerable scope, I shall recommend not only that the Respondent cease and desist
from continuing such practices but also that it shall cease and desist from in any
manner interfering with, restraining, or coercing its employees in the exercise of the
rights guaranteed by Section 7 of the Act. I shall further recommend that the
Respondent take certain affirmative action to effectuate the policies of the Act.
As I have found that the Respondent discriminatorily suspended Louis Reeves
and discharged William Mitchell on August 19, 1960, and also discriminatorily dis-
charged Louis Reeves on August 22, 1960, because these employees had engaged
in certain protected concerted activities, I shall recommend that the Respondent
offer them immediate and full reinstatement to their former or substantially equiv-
alent positions, without prejudice to their seniority or other rights and privileges, and
make them whole in accordance with the Board's established remedial policies
(The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
'65 NLRB 827; Crossett Lumber Company, 8 NLRB 440; F. W. Woolworth Com-
pany, 90 NLRB 289) for any loss of pay they may have suffered by reason of the
discriminations against them. I shall further recommend that the Respondent revoke
the disciplinary action notices hitherto served by it upon 25 of its employees.
CONCLUSIONS OF LAW
1. The Respondent, Young Spring and Wire Corporation, is an employer within
the meaning of Section 2(2) of the Act.
2. Louis Reeves and William Mitchell, the Charging Parties, are employees within
the meaning of Section 2(3) of the Act.
3. Local 1714, International Association of Machinists, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
4. By discriminatorily suspending and then discharging Louis Reeves, and by
discharging William Mitchell, the Respondent has engaged in unfair labor practices
within the meaning of Section 8(a) (1) and (3) of the Act.
5. By issuing disciplinary action notices to 2.5 of its employees because they had
engaged in concerted activities for their mutual aid or protection, the Respondent
has engaged in unfair labor practices within the meaning of Section 8(a) (J) of the
Act.
NEUMAN TRANSIT CO., INC. 659
6 By promulgating and enforcing broad rules against solicitation and the distribu-
tion of literature on company premises during nonworking time, the Respondent has
also engaged in unfair labor practices within the meaning of Section ,8(a) (1) of the
Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act
[Recommendations omitted from publication.]
Neuman Transit Co., Inc. and International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of Amer-
ica, Local Union No. 307. Case No. 27-CA-1087. September 18,
1962
DECISION AND ORDER
On May 3, 1962, Trial Examiner David F. Doyle issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the attached Intermediate Report.
Thereafter, the General Counsel and the Charging Party filed ex-
ceptions to the Intermediate Report together with supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner.
[The Board dismissed the complaint.]
i The Trial Examiner found that the appropriate unit for collective bargaining was one
comprising all drivers employed by the Respondent at its Rawlins , Riverton, Rock Springs,
Casper, Evanston, and Jeffrey City, Wyoming , terminals . On the other hand , the General
Counsel and International Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America, Local Union No. 307, the Charging Party herein , contend, in pertinent
part, that the drivers assigned to the Jeffrey City terminal should be excluded from the
unit . In dismissing the complaint , herein , we find it unnecessary to resolve this issue
as to the appropriate unit for collective -bargaining purposes . Here, the record clearly
shows, as found by the Trial Examiner , that the Respondent had a good -faith doubt as
to the majority status of the Union whether or not the Jeffrey City drivers were included
in the unit Accordingly without passing upon the Trial Exauuniei's appropriate unit
determination , we agree with the Trial Examiner' s remaining conclusions that the Re-
spondent had a good -faith doubt as to the majority status of the Union, and did not
violate Section 8(a) (5) or (1) by its refusal to bargain
138 NLRB No. 79.
002353-03-vol 138 43