American Optical Co.

National Labor Relations Board - Board Decisions

Sep 18, 1962

138 N.L.R.B. 681 (N.L.R.B. 1962)

AMERICAN OPTICAL COMPANY 681
expressed determination to observe the law, despite his anger in the matter. And
no man was discharged! I can attach no significance to this testimony.
Thirdly, this testimony was received only on the representation by the General
Counsel that it would shed light on the issues herein. Now, what is the light?
Surely, if the light is to illuminate that which lies in darkness , the light should be
clearly discernible, and burn with such brightness that its removes shadows from
the principal issues. But here the allegedly illuminating testimony has far less
clarity than the contested issues which are surrounded by an illuminating mass of
undisputed evidence . The Ferris Hotel incident adds more confusion than clarity
to this record.
And lastly, this testimony has all the earmarks of something dragged from the
shadowland of past, forgotten events, by an exhaustive examination of the memories
of partisan witnesses in a desperate effort to make out a case, where none exists. I
find this testimony to be of most dubious character , and I believe no prudent person
would accept it and, upon it , base any decision of importance . The Bryan case is
not dispositive of the motion of the Respondent , as I read the case, but I grant the
Respondent 's motion to strike this testimony on the ground that it is entirely
irrelevant, and does not shed any light on the actions of the Respondent occurring
within the 6-month period defined by Section 10(b) of the Act. The actions of the
Respondent within that period , when viewed in the light of the undisputed evidence,
is crystal clear.
CONCLUSION
For the reasons stated above , I find that the General Counsel has failed to prove
by a preponderance of the credible evidence that the Respondent has committed any
of the unfair labor practices alleged in the complaint . On the contrary I find that
a substantial preponderance of the evidence establishes:
1. That Sealock and Stanley were discharged for cause , and that Frederick,
Stansbury, Jones, and Saxton were laid off temporarily for lack of work and for
no other reason.
2. That the Respondent had a good -faith doubt of the Union 's majority status
in the appropriate unit, and did not violate Section 8 (a)(5) when it refused to
recognize or bargain with the Union.
3. That none of the supervisors or officials of the Company violated Section
8(a)(1) oftheAct.
Therefore it is recommended that the complaint herein be, and it hereby is dis-
missed in its entirety.
American Optical Company and United Optical Workers Union,
Local 853. Case No. 13-CA-44f0. September 18, 1962
DECISION AND ORDER
On June 8, 1962, Trial Examiner Alba B. Martin issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in and was not engaging 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 United
Optical Workers Union, Local 853 filed exceptions to the Intermediate
Report, and supporting briefs. The Respondent filed a brief in sup-
port 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 Rodgers and
Fanning].
138 NLRB No. 85.
,682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and adopts the findings,' conclusions, and recommendations
of the Trial Examiner, with the following ]modifications.
The Trial Examiner finds that the strike herein at all times remained
an economic strike; that when, on August 9 and 16, 1961, the Union
made its offer on behalf of all 12 of Respondent's striking employees
to return to work as a group, Respondent had already hired perma-
nent replacements for some specific striking employees; and, since
the offer contained the clear condition that each would return only
if all were taken back, that the Respondent was legally privileged to
refuse reinstatement to all strikers in whose behalf such conditional
offer was made. Although we agree with the Trial Examiner's con-
'elusion that the offer was conditional, and that Respondent had hired
some permanent replacements, we do not find it necessary to deter-
mine which specific strikers were replaced, and hence do not adopt
the Trial Examiner's findings in that regard. Rather, we find it
sufficient that, at the time all 12 strikers offered to return to work,
the Respondent had hired permanent replacements for some of the 12,
and that the Respondent therefore was not obliged to take back all
12 strikers.
[The Board dismissed the complaint.]
1 There are two obviously inadvertent errors in the Trial Examiner's Intermediate
Report: In the first paragraph under "III," "August 18" should read "August 8," and
in the third paragraph under "Findings and Conclusions" "Schneider's" should read
"Hoskins' "
INTERMEDIATE REPORT
STATEMENT OF THE CASE
On August 31, 1961, United Optical Workers Union Local 853, herein called the
Union, filed its charge against American Optical Company, herein called the
Respondent, asserting commission of conduct violative of the National Labor Rela-
tions Act, 61 Stat. 136, herein called the Act. On December 14, 1961, the General
Counsel, by the Regional Director for the Thirteenth Region, issued his complaint
against the Respondent alleging that it had engaged in conduct violative of Section
8(a)(1), (3), and (5) and Section 2(6) and (7) of the Act Essentially the
Respondent's answer denies commission of the unlawful conduct attributed to it.
Copies of the complaint, the charge, and notice of hearing were duly served on the
parties. Between February 13 and 21, 1962, a hearing was held before Trial
Examiner Alba B. Martin at Dubuque, Iowa. All parties were represented by
counsel. Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence was afforded all parties. After the close of the hearing
the General Counsel and Respondent filed briefs which have been carefully con-
sidered. Upon the entire record in the case, and from my observation of witnesses,
I make the following:
FINDINGS OF FACT
I PERTINENT COMMERCE FACTS
The complaint alleges and the answer admits that the Respondent is a voluntary
association created under the laws of the Commonwealth of Massachusetts and is
AMERICAN OPTICAL COMPANY 683
engaged in the manufacture and wholesale distribution of optical goods in various
States including Iowa and Illinois; that at times material to this case Respondent
maintained a plant and place of business at Dubuque, Iowa, this being the only
establishment of the Respondent involved herein; that during 1960 the Respondent
sold and shipped goods valued in excess of $50,000 from its Dubuque plant across
State lines to other States, and that in the same period it received goods and materials
valued in excess of $50,000 which were shipped to its Dubuque plant across State
lines from other States From these facts I find that the Respondent is engaged
in interstate commerce within the meaning of the Act and that exercise of the Board's
jurisdiction over it in this case will effectuate the purposes of the Act.
11 THE LABOR ORGANIZATION INVOLVED
United Optical Workers Union Local 853 is a labor organization within the
meaning of the Act admitting to membership employees of the Respondent.
III THE ALLEGED UNFAIR LABOR PRACTICES
The Issues
The conduct alleged by the General Counsel as violative of the Act assertedly
occurred during a strike of the Respondent's employees to secure from it the
economic benefits which the Union had failed to obtain through negotiations. The
General Counsel maintains that: (a) the Respondent discharged five named em-
ployees on July 31, August 7, and August 22, 1961, at a time when they had not
been permanently replaced by newly hired employees and that such action was
violative of Section 8 (a) (3) of the Act because, as I understand the General Counsel's
position, the discharges were in reprisal for striking; (b) if these five employees had
been in fact permanently replaced, their discharges were nevertheless violative of
Section 8(a) (3) of the Act because there were other jobs available which they were
qualified to perform; (c) the Respondent on and after August 18, 1962, refused to
restore all the striking employees, numbering 12, despite their offer to abandon the
strike and to return to work and thereby violated Section 8(a)(3) of the Act; (d)
the Respondent in violation of Section 8(a)(l) of the Act threatened to discharge
its striking employees unless they quit the strike and returned to work, and (e) the
Respondent, violating Section 8(a) (5) of the Act, utilized its right to replace
economic strikers as a means of forcing the Union's capitulation to its bargaining
proposals.
The Respondent asserts that the strike against it was at all times economic in
character and that it discharged no employee for engaging in the strike before his
permanent replacement It denies a refusal to restore to employment any striker not
so replaced on an unconditional offer to return to work. The Respondent insists
it never received such unconditional offer. It rejects the claim that it had unlawfully
threatened its striking employees with reprisal for continuing the strike, and that
it had violated the good-faith bargaining requirement of Section 8(a)(5) by pressur-
ing the Union to accept its bargaining proposals by resort to replacement of strikers.
In sum, the Respondent categorically contends that it committed no conduct violative
of the Act
The Facts
Except where specifically noted the facts related in the following recital are based
on evidence in the record which is not materially disputed.
The Union was certified as the exclusive bargaining representative of the Respond-
ent's laboratory and office employees on December 6, 1960. Bargaining with the
Respondent for these employees started on December 20. L. E. Disselhorst, presi-
dent and business manager of the Union, and Harry F. Ritterbusch, the region
operations manager for the Respondent's Chicago Region, were the chief negotiators
for their respective sides. Between December 20 and May 8, 1961, the parties met
five or six times without reaching agreement. On May 9, the Respondent's employ-
ees met and voted to strike to enforce their economic demands and on that day
went on strike.
During the strike both sides met three or four times prior to August 8 in an
unsuccessful effort to reach agreement. On this latter date a committee represent-
ing the Union met with the Respondent's representatives at Dubuque with Commis-
sioner Jeffries of the Federal Mediation and Conciliation Service in attendance. The
main point of difference was over wages. The Commissioner separated the nego-
tiators and conveyed the proposals and counterproposals from one side to the other
until a final stand was taken by the Respondent. While consulting with the Respond-
ent's representatives the Commissioner was informed that the Respondent would
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reinstate all 12 of the striking employees except 2 laboratory and 2 office employees
who assertedly had been permanently replaced by newly hired employees. Ritter-
busch advised that laboratory employees Ormal Hoskins and Richard Schneider
had been replaced on July 31 and August 7, respectively, and that office employees
Stella Smith and Charlotte Sullivan had also been replaced on July 31 and Au-
gust 7, respectively. The Union insisted that all strikers should be returned to their
jobs, but could not at the meeting obtain the Respondent's agreement to do so.
Ritterbusch did, however, promise that if his wage proposals were accepted he
would try to influence the Respondent to employ all the strikers and added that his
recommendations were usually accepted. Disselhorst stated that the striking em-
ployees would meet that evening to consider the Respondent's proposals and that
he would inform Ritterbusch of the outcome of the meeting by the next morning.
At the evening meeting on August 8 the striking employees voted to accept the
Respondent's wage proposals of that day provided the Respondent permitted all the
strikers to return to work. The next day Disselhorst spoke to Ritterbusch by tele-
phone and related the decision by the employees. Ritterbusch stated he would
take the matter up with the Respondent and would confer with Disselhorst later in
the day. Thereafter, that same day, in another telephone conversation Ritterbusch
stated that the Respondent was firm in its refusal to take back more than 8 of the
12 strikers. Ritterbusch offered to take back Charlotte Sullivan if Disselhorst felt
this would be helpful. Sullivan had been one of the three employees on the Union's
negotiating committee.
On August 11 Disselhorst met with Ritterbusch at the Respondent's Chicago
offices. Ritterbusch stated the Respondent's willingness to take back Charlotte
Sullivan and eight other employees, refusing to provide employment for three
assertedly replaced employees including Hoskins, Schneider, and Smith. He speci-
fied no other employee for whom employment would be denied
On August 14 Disselhorst again spoke to Ritterbusch by telephone and requested
that the Respondent's last proposals be submitted in writing to avoid misunderstand-
ing upon their submission to the employees at a forthcoming meeting. Thereafter
Disselhorst received a letter signed by Ritterbusch dated August 15 which delineated
the understanding at the August 11 meeting relative to wages and other matters.
The letter further provided that:
2 The Company will only recall strikers for whom, in its discretion, work is
available. At this time, we can recall a total of 9 of the 12 strikers. These
nine employees (Lab. Unit: Tiggs, Egan, Marty, Noesen, Steckel, Williams.
Office Unit: Hall, Sullivan, Smith) will be reinstated with their continuous
service status from their last date of hire. The three strikers not being recalled
(Hoskins, Schneider, Tilp), will lose their continuous service status.
3. Employees hired as replacements during the strike period retain their jobs,
and their respective dates of hire are the starting dates of their continuous service
status.
Upon receipt of the foregoing letter Disselhorst arranged to meet with the striking
employees at Dubuque. At their meeting on August 16, the employees voted to
accept what they considered to be the Respondent's proposal as stated in Ritterbusch's
letter, provided that all the strikers were permitted by the Respondent to return to
their jobs. This position was set forth in a night letter which Disselhorst prepared
.and sent and which was received by Ritterbusch the next day. The letter stated:
We hereby inform you the employees of the American Optical Company
Branch of Dubuque, Iowa, have unanimously voted to accept completely the
Company's offer of August 15, 1961, submitted to me by you on August 15, 1961.
The only condition attached to their acceptance is that the Company must
accept back to work all employees who went and are now on strike. On behalf
of each and every such employee we hereby offer to return to work immediately
upon the Company's agreeing to return all of said employees to immediate
employment in the Dubuque, Iowa Branch of the American Optical Company.
Strikers Gilbert T. Marty and Leroy L. Hall returned to work on February 7, 1962,
following their abandonment of the strike and their individual requests to be restored
to their jobs. Otherwise no other offer was made by the remaining strikers or by
the Union in their behalf to return to work and none has gone back to work for the
Respondent.
Concerning the Respondent's insistence that it had permanently replaced certain
strikers before the Union made its reinstatement demands for all the strikers, the
record reveals these facts. On July 18, Ritterbusch conferred with Disselhorst and
Henry Anderson. The latter, an official of the Union's parent organization, partici-
AMERICAN OPTICAL COMPANY 685
pated in negotiations with the Respondent to settle the strike. Ritterbusch revealed
the Respondent's difficulty in trying to operate its struck branch and declared his
intention to hire replacements for the strikers. The branch was then being operated
by Ritterbusch, Branch Manager Meyers and a branch salesman. These persons did
as much of the laboratory and office work as possible. What they could not do to
fill customer orders was performed in the Respondent's optical branches in other
cities.
Following the July 18 meeting the Respondent took steps to secure replacements.
First Ritterbusch formulated plans with Meyers for the hire of employees to perform
the simpler laboratory and office functions. A letter was prepared and sent to the
strikers. This latter, dated July 20, was addressed to each striker and signed by
Ritterbusch. It stated:
Your Union representative has advised me you rejected the latest Company
offer made last week. We find it necessary to proceed with the hiring of
permanent replacements for those individuals not reporting for work in the
Dubuque Branch.
Arrangements will be made to have any vacation pay mailed to your home
address.
Next Ritterbusch placed advertisements in the Dubuque newspaper offering employ-
ment in the Respondent's laboratory and office. These advertisements appeared in
the July 23, 24, and 25 issues of the newspaper and produced many responses from
applicants.
According to the credited testimony of Ritterbusch and Meyers and of the em-
ployees hereinafter mentioned the following personnel actions involving laboratory
jobs occurred:
On July 31, 1961, John Connolly was hired 1 to replace striker Ormal Hoskins.
Connolly voluntarily left his job after 30 days and was succeeded by Jean Benn who
was hired on September 20. Benn voluntarily gave up her job in late December
1961, and Mary Meyers was hired as her replacement on January 2, 1962. She still
holds the job. By letter dated August 23, 1961, signed by Ritterbusch, Hoskins was
informed that his employment with the Respondent had been terminated as a result
of his permanent replacement on July 31.
Joseph A. Koch was hired on August 7, 1961, to replace striker Richard Schneider.
In addition to the performance of the duties of Schneider's job Koch was taught to do
certain cylinder operations with new machines introduced during the strike which
made obsolete certain functions which had been performed before the strike by
striker Richard P. Steckel. Koch was able to perform all his assigned duties by
September 11. On this date the Respondent hired Dennis McCullough. The latter
had formerly worked for the Respondent at its Cedar Rapids optical laboratory at
duties of a kind which Steckel had performed before the strike. McCullough re-
gained his former knack in a week. Thereafter he and Koch divided the work of
Schneider's and Steckel's job. Ritterbusch sent Schneider a termination letter on
August 23 informing him he had been replaced on August 7.2 The record does not
reveal that Steckel ever received a termination letter from Respondent, but Iowa
Employment Security Commission forms entitled "Notice of Separation" were sent
by the Respondent to that agency and to Steckel on September 18, 1961, declaring
i Connolly did not testify.
2 Striker Schneider testified that in August 1961, shortly after he received his termina-
tion notice he met Mike Kane, the Respondent ' s salesman , on the parking lot behind the
Respondent 's building . Kane admonished Schneider for foolishly continuing to strike
and urged him to detach himself from the other strikers and to return to work. When
Schneider remarked that he had been discharged and did not believe he would be per-
mitted to return to work, Kane told him the "door was always open " if he wished to
come back . This evidence appears to have been offered by the General Counsel to show
that the Respondent had not in fact replaced Schneider or to prove that if a replacement
had been hired specifically for his job he had not , as a matter of law, been replaced as
there were other jobs at which the Respondent could employ him if he would abandon
the strike. Kane did not testify and Schneider's uncontroverted testimony is therefore
credited. Manager Meyers testified that he had no knowledge of Kane's remarks to
Schneider and that Kane had not been authorized to make them . The General Counsel
contends that Kane is a supervisor within the meaning of the Act, and that the Respond-
ent is responsible for his remarks to Schneider The Respondent denies he is a super-
visor. Whether Kane is a supervisor or not is inconsequential as I shall hereinafter
observe.
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Steckel's employment had been terminated on September 11 because he had been
replaced .3
Manager Meyers had performed the duties of striker Edward Egan's job during
the strike. On January 23, 1962, Richard Quinn was hired to replace Egan and to
relieve Meyers.
The following personnel actions involving office jobs occurred:
On July 31 Joan Slattery was hired to replace striker Stella Smith. On August 7
Edna Adams was hired to replace striker Charlotte Sullivan. On August 21 or 22
Phyllis Manternach was hired to replace striker Sandra M. Tilp. Because
Mantennach was handicapped by a leg infirmity she was unable to perform the mes-
senger work which had been part of Tilp's duties. Consequently, Manager Meyers
combined the duties of Tilp's and Smith's jobs and divided them between Manternach
and Slattery for the convenience of the former.
Ritterbusch and Meyers testified that all the persons hired to replace strikers were
given permanent employment when hired. As to the variations in the designation
of office employees who had been replaced by newly hired persons, as reflected by
Ritterbusch's announcement at the August 8 meeting that Sullivan and Smith had
been replaced, his declaration at the August 11 meeting of the Respondent's willing-
ness to take back Sullivan but not Smith, and the notification in his August 15
letter that Sullivan and Smith would be reinstated but that Tilp would not be re-
called, Ritterbusch gave this explanation. At the August 8 meeting he had stated
the Respondent's willingness to take back Sullivan notwithstanding her replacement
by Slattery because he anticipated that upon termination of the strike the Respondent's
office work would expand sufficiently to provide work for a fifth office employee.
He made ,the offer in the belief that it would be helpful to the Union m negotiating
a settlement of the strike. At the August 11 meeting with Disselhorst and Ander-
son it was pointed out that the replacement of Sullivan and Smith and not of Tilp
raised a problem for the Union because .the former two employees had many more
years of service with the Respondent than Tilp. At Anderson's suggestion Ritter-
busch followed seniority and designated Tilp as the replaced employee. He in-
formed Disselhorst and Anderson that this could still be done because the person-
nel forms involved in the termination of the office employees to be replaced had
not yet been processed.
Explaining the time interval between the Respondent's notification to the replaced
employees of their terminations and the sending out of the Iowa Employment Se-
curity Commission forms, Meyers testified that he received a communication from
the State agency on September 18 that the employees had filed claims for unemploy-
ment compensation. Upon request of the agency to fill out and forward the forms
Meyers did so that day. He had not done so before then because he had been
unaware of any obligation to do so and had not in the past processed such forms in
connection with the termination of oother employees.
Bearing on the permanency of employment of the striker replacements, Meyers
testified that when hired they were presented applications by him for health and
accident insurance and that each completed and submitted the application for cover-
age. Each employee was informed that -there had to be a 90-day waiting period be-
fore his insurance became effective. Meyers claimed that only the Respondent's
permanent employees were permitted to participate in this insurance program. In
this connection he defined "permanent employees" as those "that expect to stay with
the company and by the same token the company expects them to stay... .
As to any understanding between the Respondent and the replacements concern-
ing the permanence of their jobs the record contains the following evidence Meyers
claimed not to have told the employees hired during the strike which strikers they
had replaced. He conceded the possibility that this inquiry was made. Koch testi-
fied that when he was interviewed for employment on Saturday, August 5, 1961,
Meyers asked him whether he was looking for "a good steady job." Upon Koch's
assurance that he was, Meyers gave him employment and insurance application forms
to complete and told him to come to work Monday morning, August 7. Koch re-
ported for work as directed Koch acknowledged that he was not told whom he
replaced until informed by the Respondent's counsel before his appearance as a
witness that he had replaced striker Schneider. McCnlloueh testified that when he
was hired by Meyers on September 11 he was rot told whom he was replacing. How-
ever, within a 'month after he started he asked Meyers whether he was "guaranteed"
s Similar notices containing the same advice were sent on September 18 to the agency
and to employees Sullivan, Tilp, Schneider, Hoskins and Smith The dates of termina-
tion on the forms were July 31 for Hoskins and Smith, August 7 for Sullivan and
Schneider , and August 22 for Tilp.
AMERICAN OPTICAL COMPANY 687
a job and was told this was so. McCullough had been employed in Mississippi
when he learned of a job opportunity with Respondent. His wite and children were
then residing in Cedar Rapids, Icwa. A week after he started working for the Re-
spondent he moved his family to Dubuque. Quinn testified that when he was in-
terviewed by Meyers on January 20, 1962, he was told his job would be "definitely
permanent" and he was going to "replace another man." He was not told and has
not learned whom he replaced. Slattery testified that when she started to work
on July 31, 1961, she asked Meyers whether her job was permanent and was told
he could not promise anything but for her sake he hoped her job would be perma-
nent. She inquired whether she would be out of a job when the strikers returned
and Meyers replied that so far as he was concerned her job was permanent. Adams
testified that when she was hired on August 7, 1961, she was informed by Meyers
of a pending meeting with Ritterbusch as to which he could not predict the outcome
but which could affect her job. Shortly after the meeting, apparently the Au-
gust 8 negotiations of the Respondent and the Union with the Federal Conciliator,
Meyers told Adams, as the latter related, that "it was the Company's hope the job
would be permanent but they had no control over that." Manternach testified that
she was not told whom she replaced but believed it was Smith.
Reasoning that an employer is not likely permanently to replace strikers whose
.duties demand extensive experience and skill with employees lacking comparable
skills and experience, the General Counsel sought,to show the highly technical nature
of the strikers' jobs along with their ample qualifications by contrast with the insuffi-
cient experience and skills of the alleged replacements. Countering this approach
the Respondent presented voluminous testimony to show that the General Counsel
overestimates the amount of experience and training necessary to perform these jobs
efficiently and to prove that the newly hired employees, both in the laboratory and
office, mastered their jobs within brief periods and performed to the Respondent's
satisfaction The hundreds of pages of testimony in the transcript notes devoted to
this issue need not be detailed here. Suffice it to say I have taken into account the
General Counsel's theoretical approach and supporting evidence and given it weight
in determining whether in fact the Respondent hired replacements for the strikers
permanently or only temporarily. I am convinced from the credited testimony of
these replacements and of the Respondent's managerial representatives, Ritterbusch
and Meyers, that the employees hired during the strike did learn to perform their
jobs to the Respondent's satisfaction within periods of short duration. I need not
dwell longer on this question.
Findings and Conclusions
I find that -the strike against the Respondent was called and waged to compel
capitulation to the Union's economic demands and remained an economic strike
unless converted to an unfair labor practice strike by the Respondent's commission
of conduct violative of the Act which had the effect of prolonging the strike. I find
no evidence that the Respondent engaged in such unlawful conduct and consequently
that the strike at all times was an economic strike
I find that John Connolly was hired on July 31, 1961, as a permanent replacement
for striker Ormal Hoskins and that Joseph A. Koch was hired on August 7, 1961, as
a permanent replacement for striker Richard Schneider. In so finding I rely on
the credited testimony of Ritterbusch and Meyers that these persons were given
permanent jobs when hired. Koch's credited testimony that Meyers questioned
him about his interest in a steady job before hiring him clearly denotes the perma-
nency of his employment. I have, as noted, considered that neither Connolly nor
Koch was experienced at the job for which he was hired, but find in accord with
the credited testimony that each learned to perform his job in a short time to the
Respondent's satisfaction. I, therefore, am not pursuaded by the General Counsel's
evidence as to the technicality of the jobs and the skills and the experience of the
strikers that the Respondent could not have intended to hire Connolly and Koch
permanently. I have considered the testimony that after Schneider received his
August 23 termination notice the Respondent's salesman, Kane, urged him to return
to work, but do not regard Kane's remarks, even if imputed to the Respondent,
as more than an invitation to Schneider just to come back to work. This did not
necessarily mean that Schneider was being offered his former job, but could just as
well have meant, and probably did, that he was encouraged by Kane to return to
work at whatever job Respondent might have available for him.
I further find that on September 30, 1961, Benn was hired as a permanent replace-
ment for Connolly and that on January 2, 1962, Mary Meyers was hired as a perma-
nent renlacement for Benn. Meyers now permanently holds Schneider's former job.
I also find that on September 11, 1961, McCullough was hired as a permanent re-
688 bECISIONS OF NATIONAL LABOR RELATIONS BOARD
placement for striker Steckel and that Quinn permanently replaced striker Egan oft
January 23, 1962. Again I credit the claims by Ritterbusch and Meyers that all
these persons were given permanent employment. I have also considered the lack
of experience by Benn and Meyers and am not thereby convinced that they were not
given permanent employment. This circumstance obviously does not apply to either
McCullough or Quinn who were both experienced in optical work when hired.
Quinn's credited testimony that he was assurred by Meyers when hired that his job
would definitely be permanent eliminates any doubt as to the permanency of his
employment.
As to the office employees, I am convinced that Slattery, Adams, and Manternach
were also hired permanently on July 31, August 7, and August 21 or 22, 1961, re-
spectively. Here, also, I credit the testimony of Ritterbusch and Meyers to that
effect. The lack of specific experience by these employees in the performance of the
Respondent's office duties does not lessen my certainty that their hires were on a
permanent basis, as these duties were of a relatively routine nature which for the
most part were learned in a few days or less. The shifting of names of replaced
office employees by Ritterbusch in his conversations with Disselhorst on August g
and 11 and in his August 15 letter to Disselhorst does not impress me as meaning
that the Respondent had not permanently hired the office replacements. Ritterbusch
plausibly explained that he had made these shifts to accommodate the Union and
to promote a settlement of the strike. His efforts to achieve these results do not
signify that the persons hired as replacements did not get permanent jobs, but rather
that the Respondent was willing to be flexible in the determination of which office
employees were to be replaced. Nor do I regard the failure by Meyers to tell the
new employees which strikers they displaced as meaning that these employees had
less than permanent jobs. Meyers' comments to Slattery and Adams indicate that
he had some reservations as to the effect of a strike settlement on their tenure. While
Meyers was doubtless speculating about the possibility that negotiations with the
Union might result in the termination of their employment, I am satisfied that he
had intended to and did hire them for permanent work. In any event, any doubt
as to whether the replacements would be retained were firmly resolved by the
Respondent's August 9 reply to the Union's proposal that all the strikers be taken
back. Certainly, from then on the Respondent's intention as to the permanency of
employment of the replacements, including Slattery and Adams, was clear.
An employer's lawful right during a strike called for economic reasons to operate
his business by hiring employees permanently to replace strikers is not challengable.
He is forbidden only to discharge his employees merely because they are striking.
See N L.R.B. v. Mackay Radio & Television Co., 304 U S. 333. I have found
that each person hired by the Respondent during the strike was hired as a permanent
replacement for a specific striking employee. The termination of the replaced em-
ployees was not in reprisal for their strike activities. No violation of the Act resulted
from these actions. The allegations of the complaint that the Respondent unlaw-
fully discharged strikers Hoskins, Smith, Schneider, Sullivan, and Tilp before they
were permanently replaced and thereby violated Section 8(a)(3) of the Act has
not being sustained. Nor has the General Counsel sustained the allegation of the
complaint that the Respondent further violated Section 8(a)(3) of the Act by
refusing on and after August 18, 1961, to reinstate to their former or substantially
equivalent employment all 12 of the Respondent's striking employees. In connec-
tion with this allegation the complaint asserts that these employees had offered to
return to work. This assertion is not wholly true and therein lies the fatal weak-
ness of the allegation. Had the employees unconditionally offered to return to work
before any had been permanently replaced, the Respondent would have been required
to restore the unreplaced employees to their former jobs. But here the Union's
offers in behalf of the strikers were made on August 9 and 16 at a time -when some
strikers had already been permanently replaced and the offers contained the clear
condition that the strikers would return to work only if all were taken back. As the
Respondent was not legally compelled to take back all the strikers the Union's offer
was conditional. The Respondent was, therefore, legally privileged to refuse rein-
statement to all strikers in whose behalf such conditional offer was made. See
Tex-Tuft Products, Inc., 134 NLRB 751.
The allegation that the Respondent violated Section 8(a)(1) of the Act by
threatening to discharge its employees for continuation of the strike also was not
proved. I reject the General Counsel's contention that the Respondent's letter
dated July 20, 1961, apprising the striking employees of the Respondent's intention
to replace them contains anything which may be regarded as a threat. The notifica-
tion on the letter that "arrangement will be made to have any vacation pay mailed
to your home address" plainly means that this pay would be forwarded to those
employees who became permanently replaced, and bears no resemblance to a threat-
INT'L BROTHERHOOD OF ELECTRICAL WORKERS, ETC. 689
Finally, I deem wholly without merit the contention that the Respondent violated
Section 8(a)(5) of the Act by replacing economic strikers as a means of forcing the
Union to accede to its bargaining proposals. If the Respondent had a lawful right to
operate its business by replacing its striking employees, which I found it had, Section
8(a) (5) is not violated merely because the clear effect of this action was to weaken
the Union's bargaining position and to make it more amendable to acceptance of
the Respondent's proposals. This was no more unlawful than would have been the
successful conduct of the strike of the Union to weaken the position of the Respond-
ent and thus to wring from it the concessions demanded by the Union.
Upon the basis of the foregoing findings of fact and upon the entire record in the-
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. American Optical Company, Dubuque, Iowa, is engaged in commerce within,
the meaning of Section 2(6) and (7) of the Act.
2. United Optical Workers Union Local 853 is a labor organization within the
meaning of the Section 2(5) of the Act.
3. The allegations of the complaint that the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(1), (3), and
(5) of the Act have not been sustained.
[Recommendations omitted from publication.]
International Brotherhood of Electrical Workers, AFL-CIO,
and its Local 639 and Bendix Radio Division of The Bendix
Corporation
International Brotherhood of Electrical Workers, AFL-CIO,
and its Local 639 and Ets-Hokin & Galvan , Inc. Cases Nos.-
21-CD-106-1 and 21-CD-106-2. September 18, 1962
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the Act, following
charges filed by Bendix Radio Division of The Bendix Corporation,
herein called Bendix, and by Ets-Hokin & Galvan, Inc., herein called
Ets-Hokin, alleging that International Brotherhood of Electrical
Workers, AFL-CIO, and its Local 639, herein together called the
IBEW or the Union, had violated Section 8 (b) (4) (D) of the Act,
by inducing or encouraging employees to engage in a work stoppage
and by threatening, coercing, or restraining employers for the purpose
of compelling Bendix to change work assignments from one group.
of employees to another. A hearing was held before Alvin Lieber-
man, hearing officer, between January 5 and 8, 1962, at which all par-
ties were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to adduce evidence bearing upon the issues.
The rulings of the hearing officer made at the hearing are free from
prejudicial error and are hereby affirmed. Briefs filed by the Charg-
ing Parties and by the IBEW have been duly considered.
Upon the entire record in this proceeding, the Board makes the fol-
lowing findings :
138 NLRB No. 78.