Big Three Industries, Inc.

National Labor Relations Board - Board Decisions

Feb 7, 1973

201 N.L.R.B. 700 (N.L.R.B. 1973)

700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Big Three Industries , Inc. and General Truck Drivers,
Warehousemen & Helpers Local 5, affiliated with
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen & Helpers of America, Ind.
Cases 15-CA-4312 and 15-CA-4313
February 7, 1973
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On October 18, 1972, Administrative Law Judge
Josephine H. Klein issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a motion to reopen and the General
Counsel filed a brief in support of the Administrative
Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
Administrative Law Judge's Decision in light of the
exceptions and brief and has decided to affirm the
Administrative Law Judge 's rulings , findings, and
conclusions and to adopt her recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Big Three Industries,
Inc., Baton Rouge , Louisiana , its officers, agents,
successors , and assigns , shall take the action set forth
in said recommended Order.
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed insofar as it alleges unfair
labor practices not found herein.
Respondent's motion to reopen is hereby denied as the additional
evidence sought to be adduced would not require a different result. See
NLRB Rules and Regulations Sec 102 48(d)(1)
DECISION
STATEMENT OF THE CASE
JOSEPHINE H. KLEIN, Administrative Law Judge: This
case was heard in Baton Rouge , Louisiana , on June 27 and
28, 1972, on complaints issued on February 4, 1972 (Case
15-CA-4312), and April 10, 1972 (Case 15-CA-4313), and
consolidated for hearing by Order issued on April 10, 1972.
I It appears that the delay in issuance of the complaint in Case
15-CA-4313 was occasioned by the Regional Director 's initial refusal to
issue a complaint , which refusal was reversed by the General Counsel on
appeal At the hearing , the Administrative Law Judge rejected Respondent's
offer into evidence of the Regional Director 's and General Counsel 's letters
The complaints were both issued pursuant to charges filed
by General Truck Drivers , Warehousemen & Helpers
Local No. 5, affiliated with International Brotherhood of
Teamsters , Chauffeurs , Warehousemen & Helpers of
America, Ind. (the Union ), on December 15, 1971.1
The major allegation in Case 15-CA-4312 is that
Respondent has refused to bargain in good faith with the
Charging Party as the duly certified representative of the
production and maintenance employees at Respondent's
cryogenics plant in Baton Rouge , Louisiana. Case
15-CA-4313 principally concerns the allegedly discrimina-
tory discharge of Fred J. Rushlow , an employee at
Respondent 's Baton Rouge plant , on December 14,
because of his union activities "and/or to discourage union
and other concerted activities."
All parties were afforded full opportunity to be heard, to
present oral and written evidence , and to examine and
cross-examine witnesses . The parties waived oral argument
and since the hearing a brief has been filed on behalf of the
General Counsel.
Upon the entire record , observation of the witnesses, and
consideration of the General Counsel 's brief, I make the
following:
FINDINGS OF FACT
1. PRELIMINARY FINDINGS
A. Respondent , a Texas corporation , maintains a place
of business in Baton Rouge , Louisiana , where it is engaged
in the manufacture , sale, and distribution of oxygen,
nitrogen , and other related products. During the past 12
months , a representative period , Respondent , in the course
and conduct of its business , purchased and received goods
and materials valued in excess of $50,000 at its Baton
Rouge , Louisiana , facility directly from points outside
Louisiana , and sold and shipped goods and materials
valued in excess of $50,000 from its Baton Rouge facility
directly to points outside Louisiana.
Respondent is, and has been at all times material herein,
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.2
B. The Union is, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
11. THE UNFAIR LABOR PRACTICES
A. Refusal To Bargain in Good Faith
1. Chronological outline
On July 15, pursuant to an election held on June 2, the
Union was certified as the collective -bargaining represent-
ative of the production and maintenance employees,
numbering about 15 , at Respondent 's cryogenics plant in
Baton Rouge , the only installation involved herein.
Mr. J. D . Arnold, assistant business agent and chief
advising of their action
Unless otherwise indicated , all dates herein are in 1971.
7 National Labor Relations Act, as amended (61 Stat 136 , 73 Stat 519
29 U.S C Sec . 151. et seq)
201 NLRB No. 105
BIG THREE INDUSTRIES, INC.
negotiator for the Union, and employee Fred J. Rushlow,
the alleged discriminatee, testified on behalf of the General
Counsel concerning the bargaining meetings . Robert O.
Moore, Respondent's administrative vice president, who
had accompanied Attorney Charles R. Vickery, Jr.,
Respondent's principal negotiator, took the witness stand.
However, he gave virtually no direct testimony concerning
the bargaining sessions but, instead, introduced into
evidence, over the General Counsel's objections, notes, or
"minutes," of the meetings that he had prepared. The
General Counsel was then permitted to review the notes
and cross-examine Moore. While serving as counsel at the
hearing, Vickery repeatedly made essentially evidentiary or
testimonial statements concerning the negotiations. How-
ever, since he did not take the stand as a witness, no
evidentiary weight is here given to any such statements
except to the extent that they were embodied in stipula-
tions or amount to admissions or declarations against
interest. Moore testified that his notes of the meetings were
made "solely for the information of Big Three personnel"
and "to be brought to hearings such as this one here."
Because of the nature and sparsity of Respondent's
testimonial evidence, as contrasted with the full testimony
by union representatives, together with careful observation
of the demeanor of the witnesses, I credit Arnold and
Rushlow over Moore wherever there is any conflict. In any
event, it may be said at the outset that the ultimate decision
would be the same if Moore's notes were to be accepted as
true and accurate in all respects.
The first negotiating meeting was held at the Baton
Rouge Airport on August 5. Vickery, accompanied by
Moore, was Respondent's spokesman. The Union was
represented by Mr. Jerry Millican, its counsel; Arnold; and
employees Rushlow 3 and Bernard James Minvielle.4 At
this meeting, the Union presented a detailed contract
proposal, consisting of some 33 articles. In offering the
proposal, the union representatives said that each and
every part thereof was fully negotiable, a position which
they repeated several times thereafter. The Union's
proposal was hastily reviewed. Vickery emphatically
rejected most major provisions proposed by the Union.
According to Arnold's credited testimony, essentially
corroborated by Moore, Vickery advised that Respon-
dent's plant in Orange, Texas, was being shut downs and
that Respondent could similarly shut down the Baton
Rouge plant. According to Arnold, Vickery also expressed
the opinion that "if he got something that looked like [the
Union's proposed contract], they might as well" close the
Baton Rouge facility. Vickery further emphatically main-
tained that Respondent would not grant the employees
anything more than they were already receiving-they
would get precisely what they were then getting, no more
and no less. However, the meeting ended with an
understanding that Respondent would further study the
Union's proposal and make a counterproposal.
The second meeting was held at a Baton Rouge motel on
August 26. Vickery and Moore again attended for the
3 Moore's notes erroneously list employee Glenn Louis Bordelon in
place of Rushlow.
4 This is the employee's full name as it appears in Moore's notes.
5 Respondent's Orange, Texas, plant was involved in a previous Board
701
Company. The Union was represented by Arnold, Rush-
low, Minvielle, and employee Kenneth B. Sheats, with
Business Agent Ed Partin present for a short time. The
Union's proposed contract was reviewed article by article.
As discussed below, agreement was ostensibly reached on
some matters; others the Union was to rewrite; others
Respondent was to rewrite. The meeting ended with
Respondent agreeing to submit a counterproposal. On
September 21, the Union rejected the counterproposal "as
a whole" and requested a further meeting.
The third meeting was held at the same Baton Rouge
motel on October 22. The representatives for the two
parties were the same as before, except that employee
Travis W. McCoy substituted for Rushlow, who was away
on vacation. Assistant Business Agent J. M. Walters was
scheduled to join the Union's group, but he did not show
up. Again the parties reviewed the Union's proposal article
by article, again without reaching agreement on any basic
or major issues. As detailed below, Respondent's "counter-
proposal" did not embody the few agreements that had
been reached on August 26.
Early in December, Business Agent Walters spoke to
Vickery about the possibility of further negotiations.
Vickery maintained that further meetings would be futile.
However, he said he would be in touch with Walters again
some time after January 17, 1972, when Moore would have
been released from the hospital.6 Vickery also insisted that
further negotiations should be conducted in Houston,
Texas, where he and Moore and Respondent's main office
were located rather than in Baton Rouge, where Arnold,
the employees, and the plant were all located.? On
December 14, apparently shortly after the conversation
between Walters and Vickery, Rushlow was discharged.
The next day, December 15, the Union filed the two
charges here involved. As of the present hearing, late in
June 1972, the Union had received no further communica-
tions.
2. Respondent's specific positions
Arnold testified, and Moore's notes report, that general
agreement was reached on some matters at the August 26
meeting.
The Union's proposed contract included a provision
concerning "contracting out of work" (art. IX). After
elaborately setting forth a spirit of cooperation between
management and employees, the article provided for
creation of a permanent management-employee committee
to meet regularly on a semimonthly basis and "on any
emergency that may arise on subcontracting." It conclud-
ed: "The Company will not subcontract any work that can
be performed by members of this bargaining unit."
According to Moore's notes, at the August 26 meeting,
"This article was basically agreed upon with the Union to
rewrite the last paragraph having to do with Company
subcontractors." The counterproposal thereafter submitted
did not include any portion of the Union's proposal. On
the contrary, the counterproposal provided (art. XII) that
proceeding, reported at 145 NLRB 1685.
6 Moore testified that, as he recalled , he was hospitalized for about 6 or 7
days in February.
7 It may be noted that the Company maintains a private plane.
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"subcontractors will perform production and maintenance
work when convenient or desired by the Company." When
the matter was again discussed on October 22, the Union
said that it would provide a provision from another
contract which it thought might be satisfactory. At the
hearing Vickery, acting as counsel, sought to fault Arnold
for not having provided the promised contract proposal.
As previously stated, however, Respondent never resumed
negotiations, despite the Union's attempts to do so.
The Union's proposal contained elaborate provisions
concerning seniority rights, the maintenance of seniority
lists, and the posting of available jobs (art. X). At the
August 26 meeting, according to Moore's notes, Respon-
dent said it "would be agreeable to handling lay-offs and
recalls on a seniority basis within classification. Minor
portions of the article were approved with most of the
article to be rewritten and discussed further." Respon-
dent's counterproposal contained no provision for seniority
rights. On the contrary, Respondent's proposed manage-
ment prerogative clause (art. VIII, quoted below) would
apparently negative any seniority protection. On October
22, Respondent again "advised the Union that it must have
absolute control over promotions and transfers but , . .
was agreeable to recognizing seniority in lay-offs and
recalls." But even within the area of stated agreement,
Respondent drastically cut the time periods for seniority
proposed by the Union and rejected all proposed adminis-
trative measures for protecting such rights.
The Union's proposal called for negotiation of rates for
any new job classifications (arts. VI and XXVIII).
Although the Company agreed to those provisions on
August 26, it was not contained in its counterproposal.
Indeed, Respondent maintained that the plant was too
small to have "classifications." The counterproposal in
large part negatived negotiation on rates for new jobs,
reserving the right to make any change in its methods of
operation "which the company in good faith believes
desirable." Moore's notes of the October 22 meeting recite
that the Union's article concerning negotiation of rates for
jobs incident to new production techniques "had received
basic approval from the Company on August 27th [sic],
however, Mr. Vickery advised the Union that this article
was really not relevant." So far as appears, the provision
could be rendered "irrelevant" only by Respondent's
insistence on unilateral determination of such questions.
On August 26, Respondent agreed to major portions of
the Union's proposed provisions concerning union repre-
sentation (art. V) and grievances (art. VII). These agree-
ments, however, were not embodied in Respondent's
counterproposal. The attitude of Vickery, Respondent's
negotiator, toward agreements reached in the course of
bargaining is reflected in the following colloquy which
occurred during his cross-examination of Arnold:
Q. On Article VII did you ever offer to modify it
during the course of negotiations?
A. You agreed to it like it was.
Q. We never agreed to it in a written form under a
signature, did we?
s Moore testified that II plants he listed were "cryogenic plants,
separation plants similar" to the one here involved . No weight can be
given to the nontestimomal protestation by Respondent 's counsel that "they
A. No, sir. You tentatively agreed to it.
Q. Whenever we talked , it was tentative , wasn't it?
A. When you make an agreement with anybody
you tentatively agree so if your word isn't any good.
Q. I have been ordered not to testify, but I didn't
agree to those Articles... .
Moore's notes , however, report that on August 26 the
Union's grievance proposal (art. VII) "was basically
approved with the addition of the statement that griev-
ances were limited to the express items in the agreement."
The grievance procedure contained in Respondent's
counterproposal (art. VI), particularly in conjunction with
the arbitration and discharge provisions (arts. VII, VIII, X,
XIII, and XIV), discussed below, was greatly at variance
with the Union's.
Article XXI of the Union's proposal covered temporary
transfers, providing that an employee assigned to a higher
paid job than his regular work for more than an hour
would be paid for such time at the higher rate. According
to Moore 's notes, on August 26 "[t]his article was
discussed and passed.9' The Company's counterproposal
contained the following provisions relevant to transfers:
Article IV. Work Assignments. Since the employee
force in the plant is small , without regard to classifica-
tion or rate of pay, each employee will perform
whatever work is assigned to him by the Company
from time to time at his regular wage scale.
R • i !
Article XIV. Transfer. The Company reserves the
right to transfer any employee to any other Company
plant; failure to accept a transfer shall be "good cause"
for discharge; any discharge under this proviso shall
not be subject to the grievance or arbitration proce-
dure.
In connection with the proposed article on interplant
transfers, it should be noted that, according to Moore's
testimony, Respondent has some 12 cryogenics plants, in
California, Texas, Louisiana, and Florida8 (plus an
undisclosed number of other types of facilities at unspeci-
fied locations).
The Union's proposed contract (art. XXVI) provided
for: "Insurance and retirement plan to be paid in full by
the Company to be submitted at a later date." Concerning
the August 26 discussion of this article, Moore's notes
report:
The Union advised that they did not have copies of
the Company insurance and retirement plans. The
Company agreed to forward this information to Mr. J.
D. Arnold... .
Moore's notes do not reflect the fact that at the August 26
meeting there was a somewhat unpleasant interchange
between Moore and Rushlow when the latter questioned
the apparently excessive cost of the Company's hospitaliza-
tion and health insurance and indicated that some of the
employees doubted whether the Company was actually
paying half the cost, as it said it was. Rushlow said that
employee investigation disclosed that individual insurance
aren 't similar." Under date of May 10, 1972, the home office sent a
memorandum concerning the loading and unloading of liquid trucks to the
managers of 26 named plants.
BIG THREE INDUSTRIES , INC. 703
was obtainable at substantially less than the Company said
its group coverage cost. Although Moore testified that his
"secretary was instructed to send [the promised informa-
tion] to Mr. Arnold and to the best of [Moore's]
knowledge this was done," the record fails to establish that
such material was actually provided. In any event, the
Company's counterproposal contains no reference to any
insurance or similar fringe benefits . Its acknowledgement
of retirement as a possible fact of life took the following
form:
Article IX. Retirement. The compulsory retirement
date shall be the employee's 60th birthday; at any time
after an employee's 60th birthday, the Company shall
have the right and option to retire or discontinue the
employment of such employee.
The Union proposed (art. XXII) that preference for light
work be given to "[e]mployees with long and satisfactory
service records" who became physically unable to perform
their regular work. On August 26, it was agreed that the
Company would "rewrite" that provision. The Company
"rewrite," as embodied in its counterproposal was com-
plete, as follows:
Article XIII. Physical Examination . At any time at
company cost, the Company may require any one or
more of the employees to take a physical examination
by the Company doctor; if any employee is found to be
disabled in any degree by the Company doctor, such
employee may be terminated by the Company. Termi-
nation under this Article shall not be subject to
arbitration or the grievance procedure.
And, as if to tie the knot completely, Respondent's
counterproposal specified "[d ]isability or incapacity in any
degree or percent" as one of innumerable "good causes"
for discharge of an employee.
The Union proposed provisions for discipline (art. XX)
under which prior disciplinary records would be destroyed
and employees in the future would be given warning
notices and opportunity to defend themselves, with the
presence of a union representative. At the August 26
meeting, the Company proposed to "rewrite" that article
"for submission." Again its "rewrite" was total . Respon-
dent's counterproposal listed 33 separately numbered
"good cause[s]" for discharge . Included were items such as
the following:
22. Violation of the no strike clause or any other
term of this agreement.
29. Solicitation of any kind on company property.
31. Wearing of excessively long hair or beards; the
Company shall unilaterally determine a violation of
this provision. Any discharge under this provision shall
not be subject to arbitration.
32. The wearing of effeminate dress or other dress
objectionable to the company.
The last specified, numbered "good cause" for discharge
was:
9 Moore's notes concerning the third negotiating session , on October 22,
state that the Union was advised that the reference to Texas courts "was an
error and this should have read Louisiana court " Arnold, however, testified
that he told Vickery that the Union "would abide by the laws in the State of
Louisiana and not the laws that was in Texas." He did not testify to any
agreement by Respondent to accept that position. No such agreement can
33. The company, in good faith, believes the
discharge is in the best interest of the company.
After these "specific good causes" for discharge , Respon-
dent's contract proposal continues:
This list is not exclusive but any other "good cause"
shall justify discharge ; the arbitrator shall have no
discretion nor authority whatsoever to change, miti-
gate , lessen or reduce the penalty of discharge, if any
one or more of the defined "good causes" exist. The
discretion of the Company to discharge is not subject
to review by the arbitrator upon establishment of any
of the enumerated "good causes" for discharge.
The arbitrator shall have no authority nor jurisdic-
tion to award money damages or otherwise impose
expense or costs on the Company directly or indirectly.
The arbitrator shall have only a limited authority to
find facts but shall have no discretion nor authority to
fashion remedies or impose any costs or expense on the
Company.
No employee shall be awarded any money for any
time not actually worked. This may be done only by a
Texas court of competent jurisdiction .9
According to Moore's notes, on October 22 Arnold said
"that he could agree with an immediate discharge without
recourse for such items as theft, intoxication and insubor-
dination , however, he could not agree with all the items as
he felt this could provide the Company with an excuse to
discharge anyone at any time. Mr. Vickery advised that the
Company would be happy to review this article and that it
would be restated." However, Arnold credibly testified
that Vickery insisted that his proposed "good causes" for
discharge "were going to stay like they were." Significantly,
it was at just about this time that Wayne Gray , the new
general manager, announced personnel policies under
which the causes for immediate discharge were limited to
firearms , liquor or intoxication , theft , and fighting on
company premises. For all other misconduct, employees
would be entitled first to an oral reprimand and then a
written reprimand , possibly with a suspension of up to 3
days , before there would be any discharge action.10
To underscore the Company's desire to deny any
protection to the employees, and place them fully at the
mercy of Respondent , was its proposed "Management
Prerogative Clause ," reading:
Nothing in this Agreement shall limit or restrict the
management prerogatives of the Company, except to
the extent that such prerogatives are specifically limited
by the unambiguous, express terms of this Agreement;
the Company expressly reserves the right to layoff, to
determine manning required and number of employees
needed, to hire , transfer, suspend , layoff , recall,
promote , discharge , assign, reward , to otherwise disci-
pline the employees and to exercise all other manage-
ment prerogatives. The Company reserves the right to
suspend or shut down operations of all or any part of
be inferred in view of Respondent 's repeatedly expressed intention to
maintain uniformity among its plants.
10 Gray 's announcement of this policy has not been alleged as unilateral
action independently violative of Sec. 8 (aX5). Accordingly , no such finding
is being made here
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Company plants, machinery or equipment at any
time desired by the Company.
Respondent's counterproposal also reserved to manage-
ment the right to have nonunit employees or subcontrac-
tors perform unit work whenever the Company found that
convenient.
Coupled with these "management prerogative" provi-
sions were extremely restrictive no-strike clauses and a
sham arbitration provision, as follows:
Article XVII. Limit or Curtailment of Production.
This contract is a guarantee by the Union and the
bargaining unit employees that there shall be no limit
on, or curtailment of production for any reason
whatsoever during the term of this agreement.
Article XIX. No Strikes nor Lockouts. The Union
agrees and guarantees to the Company that during the
term of this Agreement neither it nor any of the
bargaining unit employees shall engage in, participate
in or sanction any strike, slow-down, stoppage of work
or suspension of work whatsoever; that there shall be
no work stoppage nor delayed performance of duties or
interference in any way with the operation or conduct
of the Company's business.. . .11
This Agreement is a guarantee that there shall be
neither strikes , slow-downs , work stoppages , refusal to
cross picket-lines at a customer situs , suspensions of
work, delays in the work or interruption of work during
the term of this Agreement and that all disputes will be
settled under the grievance procedures of this contract
or by the courts.
Article VII. Arbitration Procedure.
C. The arbitrator's findings and decisions
shall be presented in writing and shall be
conclusive, final and binding on both parties, if,
but only if, the finding, decision and award (1)
are based upon the violation of an express,
unambiguous term of this agreement set forth in
the award; (2) are not based on past practices, the
"rule of the shop" or some other implication
appealing to the arbitrator; (3) makes no award
of money cost or expense against the Company in
the form of back pay or otherwise, but any such
money damage or back pay obligation of the
Company shall be determined by a Texas court of
competent jurisdiction.
I • i i 4
G. The arbitrator shall have neither jurisdic-
tion nor authority to determine arbitrability.
11 The no-lockout provision included at this point is apparently nullified
by the various management prerogative reservations.
12 Vickery indicated the same position during the heanng
is It is difficult to infer that Vickery might have made an inadvertent
error as to the "Federal law ," in view of his statement at the hearing that he
Specific attention should be directed to the inclusion of a
prohibition of employees ' refusal to cross picket lines. The
Union had originally proposed an article protecting the
employees ' rights to honor picket lines (art. XXIII).
According to Arnold, Vickery said that "[a]ny man that
refused to cross a picket line , wherever he was going, he
would consider him quit and he would replace him with
somebody else." Respondent apparently denies that
Vickery threatened to discharge employees who refused to
cross picket lines but acknowledged that Respondent said
it would replace such persons . 12 According to Moore's
notes, at the August 26 meeting , Respondent "proposed
writing an amendment which would state that both parties
would follow Federal law. This was agreed." The Company
took the same position on October 22. The Company's
counterproposal, however , would have made "refusal to
cross picket -lines at a customer situs" a violation of the no-
strike clause and thus "good cause" for discharge. This
provision thus denies employees their statutorily protected
right to respect picket lines. Smith Transit, Inc., 176 NLRB
1074, 1083, and cases there cited.13
Without further extending this Decision by discussion of
other specific provisions of the two contracts , it can be said
that , rather than making any concessions in the way of
protecting employees , Respondent proposed to exact from
the Union contractual waivers of many substantial and
basic employee rights . And at no time did Respondent
offer any compensation concessions , on either economic or
noneconomic matters.
Respondent 's positions concerning wages and hours are
fully indicative of its attitude toward the bargaining
process in general . The Union's proposal , submitted on
August 5, called for a 1-year contract and specified wage
rates for five classifications (art. XXXII) retroactive to the
date of certification (preamble). At the August 26 meeting,
the wage question was not discussed. The Company,
however, apparently flatly rejected the concept of retroac-
tivity in any form. Respondent 's counterproposal on wage
rates read : "Present effective rates . The Company will
make no payment for any time not actually worked ." (Art.
XVI.) 14
Articles XIII and XIV of the Union's proposal con-
cerned hours of work and overtime pay. The Union also
proposed that overtime generally be voluntary. Respon-
dent said it "did not intend to pay overtime for over 8
hours nor for the 6th and 7th days of a week " and that the
Union's "request for $5 .00 meals was too high and also
that the Company insisted that an employee must work
overtime , as requested ." It was agreed that the Company
would make a proposal . The Company's subsequent
proposal required employees to work overtime when
requested ; assured $2 for meals required, the amount the
Company was already paying; and authorized two 10-
minute coffee or cigarette breaks per shift (the record is
silent as to the existing practice concerning rest periods).
Otherwise , the Company 's proposal contained no provision
concerning hours or overtime compensation and the
has been trying Labor Board cases for 24 years
14 On its face , this provision appears inconsistent with Respondent's
pnor agreement to some provision for call-in pay . Presumably , however, it
would not be construed to nullify specific provisions such as those for
vacations and holidays which did call for payment for time not worked
BIG THREE INDUSTRIES, INC.
Company made clear its position that it was not prepared
to grant or assure anything more than was provided by
Federal law.
At the hearing Respondent apparently maintained that
its position was based on the Presidential wage and price
freeze. The flavor of Respondent's position can best be
seen in the following bits of colloquy occurring during
Vickery's cross-examination of Arnold:
Q. (By Mr. Vickery) Mr. Arnold, didn't we tell you
that the reason we couldn't spend any more money on
these boys was that our sterling President had a wage
and economic freeze in effect?
A. No, sir.
* s s
Q. You mean that on August 26 we didn't mention
the President's wage freeze? In each meeting we told
you we were going to observe it?
A. That's right. But you said insofar as the wages
and working conditions there would be no changes.
Q. We said we were going to observe the Presi-
dent's wage and economic freeze. . . . Your contract
was in square breach of the wage freeze.
A. Our contract? No.
Q. Where you proposed wage increases of 100%.
A. We negotiated on August 5. At that time we
weren't in the wage freeze.
s • s * $
Q. Did you ever offer to reduce your demands in
Article XXXII?
A. We didn't discuss wages.
Q. It ought to be said you didn't offer to reduce
them because we didn't ever discuss them.
A. That's right. You didn't either.
s s : ► s
Q. Did you ever offer any concessions as to
General Counsel's Exhibit 3 Article XI [vacations]?
A. We couldn't offer you nothing, if you aren't
going to talk about it.
Q. They were frozen by the wage freeze put in
effect by the President.
A. You said we wouldn't talk about it.
Q. We wouldn't talk about it. We were going to
help the government's deflationary program and we
wanted to make a fair contribution.
It may be noted that Moore's notes report that at the
August 26 meeting "Mr. Arnold commented that they were
under contract negotiations with other companies and that
they were proceeding with such negotiations which would
be subject to any rulings by the Government." Arnold
credibly testified that at their final meeting, on October 22,
Vickery persisted in his initial insistence that "whatever
15 New Year's Day, Memorial Day. Independence Day, Labor Day,
Thanksgiving Day, Christmas Day.
16 It reads "Article XVIII. When the Employer needs additional
employees to work under the provisions of this contract he shall notify the
705
they were making now, they would continue to get; no
more and no less."
Respondent's attitude toward economic matters is
graphically displayed in connection with the question of
holidays. The Union proposed 12 holidays, with somewhat
detailed provisions concerning payment therefor (art. XII).
At the August 26 meeting, according to Moore's notes,
"[t]he Company advised that this was a cost item and that
it would rewrite it and make a proposal to the Union." The
subsequent counterproposal listed the six major national
legal holidays 15 and provided for holiday pay for nonpro-
bationary employees at their regular rates whether they
were required to work or not (art. IX). Under the
Company's proposal, there would be no additional pay or
time off for a holiday falling within an employee's vacation
(art. IX (3)).
The Union proposal contained certain provisions de-
signed primarily for its benefit, as distinguished from that
of the employees: a bulletin board, union dues checkoff,
union security, and union hiring hall. As to the bulletin
board, the Company orally agreed to make reasonable
space available for a bulletin board to be provided by the
Union. However, the Company counterproposed no such
provision. According to Moore's notes, the Company
repeated this agreement at the October 22 meeting. The
Company also said it would checkoff union dues upon
payment by the Union of $1.20 per month per employee.
No agreement was reached on this item on August 26,
Moore's notes reciting that the article was "passed." The
Company's "offer" was not incorporated in its later
counterproposal.
Moore's notes recite that on August 26 the Union's
proposal for a union-security clause (art. I (f)) "was
passed." The Company's counterproposal contained no
such provision but, on the contrary, added "membership in
or nonmembership in a union" to the Union's nondiscrimi-
nation clause . The Union's proposal for a hiring hall "was
discussed and passed." Moore's notes say that at the
beginning of the meeting on October 22-
Mr. Vickery advised the Union that the Company
and the Union were far apart and that the Company
would be adamant on their stand that they could not
agree to a union shop and to a hiring hall. Mr. Vickery
further stated that he was not certain but what the
hiring hall would be illegal.
Again, in the item-by-item review of the Union's proposal,
Vickery advised that "under no circumstances" would
Respondent agree to a union shop or hiring hall provision.
He reiterated that the Union's proposals were or might be
illegal . Each time Arnold said that he would consult the
Union's business agent and its counsel as to the legality of
the provisions.
The union-proposed hiring hall provision 18 appears to be
entirely lawful. Local 357, Teamsters [Los Angeles-Seattle
Motor Express] v. N.L.R.B., 365 U.S. 667. The union-
security clause does not contain the statutorily required 30-
day grace period and thus would not be lawful as written.
Union , and the Union shall furnish the employees through its hall. No new
employee may be hired except , he be hired upon referral by the Union. The
employer shall not discriminate against any person because of his Union
membership "
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, as previously stated, it is conceded that the
Union volunteered that all parts of its proposal were
negotiable. There is not the slightest suggestion that the
Union would press for any unlawful provision and said it
would check with its counsel. Respondent's negotiator, an
experienced labor lawyer, did not point out the nature or
extent of the "illegality" of the Union's proposed union-
security clause. Rather, Respondent made it clear from the
beginning that it was unalterably opposed to any form of
union-security or hiring hall provision. The claimed
"illegality" of the provision was, therefore, just a red
herring.
At the hearing Vickery confirmed Respondent's ada-
mant refusal to yield to any degree on the picket line,
union shop, and hiring hall provisions.17 Vickery based his
opposition to a hiring hall provision on his erroneous
statement that it would be violative of the law.18 He did
not point out the limited remediable deficiency in the
union shop provision or suggest that Respondent would
consider or discuss a lawful union-security clause (i.e., a
revision of the Union's proposal to provide the statutory
30-day grace period).19 He said he would abide by "federal
law" as to the picket line provision, while proposing a
contractual waiver of employees' rights under Federal law.
3. Discussion and conclusion
The foregoing analysis of Respondent's positions on
specific issues is only representative and not complete.
Other items, both important and relatively minor, were
similarly dealt with by the parties. In virtually no respect
did Respondent indicate its willingness to make any
concession or even significantly to recognize the employ-
ees' statutorily protected rights. From the first meeting,
when Vickery invited the Union to strike and warned that
the Baton Rouge plant could be closed as the Orange,
Texas, plant had been,20 through the time of the present
hearing, when Respondent had failed to keep its promise to
arrange a further negotiating meeting, Respondent gave
not the faintest indication that it desired or intended to
reach any agreement with the Union. To the slight extent
that he gave any explanation of his positions, Respondent's
representative, a sophisticated labor lawyer, made errone-
ous and half-true statements of law.
Since Respondent has not filed a brief, the nature of its
defense must be gleaned from its rather sparse evidence
and counsel's conduct. In cross -examining Arnold, Vickery
attempted to wrest "admissions" that the Union had not
17 Mr Vickery stated as follows:
We stipulate that we wouldn't give them anything but a federal law
on picketing : that we wouldn ' t give them a hiring hall in any form
whatsoever . . That we discussed them for three meetings , the hiring
hall, the Union and closed shop and their attempt to legalize secondary
picketing and we said we would not agree to them in any form
whatsoever, but if they wanted to argue about them for some more
sessions, we would come and argue about them but I thought we
reached an impasse on them. .
1s The following colloquy occurred in Vickery's cross-examination of
Arnold
Q Didn't I tell you it [the union hiring hall provision I was in plain
violation of the National Labor Relations Act9
A I think you might have, but you wouldn' t make any concession
You said that you weren't even going to talk about it.
Q Talk about violating the National Labor Relations Act?
offered "concessions" on its specific proposals. However,
as Arnold testified , and as is clear from the record as a
whole, on all major substantive issues Respondent's
position was inflexibly negative . In answer to a leading
question by Vickery, employee Rushlow conceded that
Respondent had not refused to discuss any issue raised.
But the evidence clearly establishes that Respondent's
"discussion" of significant issues consisted solely of
rejection of the Union's position and insistence on
Respondent 's positions . Moore's notes report that the
bargaining session of October 22 ended as follows:
Mr. Vickery then requested that the Union prepare
their last best offer and that it be submitted to the
Company and that it would be reviewed and the
Company's answer given immediately.
There is no indication that Respondent recognized even
the possibility that it had any obligation as one of two
parties to statutorily required bargaining . On the contrary,
Vickery placed the total burden on the Union and was
clearly bent on forcing an impasse rather than seeking
some basis of accomodation. For example , Arnold credibly
testified as follows concerning the end of the October 22
meeting:
Q. Was there anything said about meeting again or
the usefulness of meeting again?
A. [Vickery ] said if we were going to keep arguing
about the same things, there wasn 't any use in us
meeting again , so we just would do whatever we
wanted to do.
Q. Was there anything said about a final offer?
A. Well, he said that was his only offer and if we
were going to keep arguing about the same things over
and over again , we would be wasting time. There
wasn't any use in coming back. We could do whatever
we wanted to do.
Vickery's intransigence continued thereafter . In Decem-
ber Gray disclosed to employee Sheats the Company's
intention to reach any agreement and to file a decertifica-
tion petition as soon as possible . At this time, Gray also
"advised" Sheats to induce the employees not to authorize
a strike . Employee Dallas Stillwell quoted Gray as having
said in February 1972 that the Union would be unable to
obtain a contract from Vickery. And employee Travis
McCoy credibly testified that around March 1 , 1972, Gray
predicted that the employees would get nothing from
Vickery, who "could drag this on for two or three years." 21
In the course of the present hearing , Vickery displayed
A. You said you wasn 't going to talk about it; it was out
Q. Did you offer to modify the hiring hall provision of Article
XV111'1
A. Give us equal opportunity
Q. Give who equal opportunity.
A Give the Union . You said that was out ; we will hire the
employees.
19 Louisiana is not a "right-to-work " State.
20 The Orange plant was involved in Big Three Welding Equipment
Company, 145 NLRB 1685 , enfd . in major part 359 F .2d 77 (C A. 5), in
which Respondent was found to have engaged in unfair labor practices,
including four discriminatory discharges in violation of Sec. 8 (aX3) of the
Act.
21 At the hearing Vickery stated his willingness to "drag this 8 (aX3) on
for three years."
BIG THREE INDUSTRIES, INC. 707
his continuing enthusiasm for having an "impasse"
declared.22 However, in no sense could it be said that a
genuine "impasse" had been reached. The Union at no
time said that it would not yield on the issues referred to by
Respondent. On the contrary, despite the utmost provoca-
tion by Respondent, the Union did not qualify its original
statement that all parts of its proposal were negotiable. Not
only did Respondent fail to consider or propose any
compensating concessions on its part, but the only
proposals it ever made would have required a waiver of
important employee rights, leaving the employees substan-
tially worse off with a contract than without one. Rather
than bargaining to a genuine " impasse," Vickery's entire
course of action shows "a predetermination not to reach
agreement, or a desire to produce a stalemate, in order to
frustrate bargaining and undermine the statutory repre-
sentative." Stuart Radiator Core Mfg. Co., Inc., 173 NLRB
125. Unlawful conduct cannot be rendered lawful by the
verbal legerdemain of substituting the word "impasse" for
the more accurate "stalemate."23
As recently said by the Court of Appeals for the Ninth
Circuit in N.L.R.B. v. Holmes Tuttle Broadway Ford, Inc.,
465 F.2d 717, 719:
Sections 8(a) (5) and (d) do not require that a party
make concessions or yield any position fairly main-
tained. . . . This does not mean, however, that the
Board is prohibited from examining the contents of the
proposals put forth. The Board "must take some
cognizance of the reasonableness of the position taken
by an employer in the course of bargaining negotia-
tions" if it is not to be "blinded by empty talk and by
the mere surface motions of collective bargaining
. . ." N.L.R.B. v. Reed & Prince Mfg. Co., I Cir.,
1953, 205 F.2d 131, 134... .
In judging a party's compliance with Sections 8(a)(5)
and (d), the "Board has been afforded flexibility to
determine . . . whether . . . conduct at the bargaining
table evidences a real desire to come into agreement."
N.L.R.B. v. Insurance Agents' Union, . . . 361 U.S. [ 4771
at 498. This determination is made by "drawing
inferences from the conduct of the parties as a whole."
Id....
Respondent's purported "counterproposal" to the Union
reflects an unmitigated, cynical disregard for the Employ-
er's statutory obligation to bargain. See Stuart Radiator
Core Mfg. Co., supra:
... [Respondent's] proposals indicate more than
hard bargaining. Since the Respondent could not have
offered them with any reasonable expectation that they
would be acceptable to the Union, we can only
conclude that Respondent did not approach negotia-
22 The testimony is as follows:
MR. VICKERY : We never refused to negotiate with him.
TRIAL EXAMINER : If you would like to do so, we can-
MR. VICKERY : Our position is unchanged until they will make a
concession on the close[d] shop, picketing , hot cargo and hiring hall.
We are at an impasse.
TRIAL EXAMINER : I didn't mean for me to get into negotiations.
MR. VICKERY : We got it in the record and now we are at an impasse
on four issues. If they want to give ground, we will negotiate.
TRIAL EXAMINER : We are not negotiating.
MR. VICKERY: I am . . . .
TRIAL EXAMINER: If you people want to sit down, I would be very
tions in good faith and with the intent of reaching an
agreement... .
See also, e.g., Flambeau Plastics Corporation v. N.L.R.B.,
401 F.2d 128, fn. 12 (C.A. 7), cert. denied 393 U.S. 1019;
Shovel Supply Company, Inc., 162 NLRB 460; Jeffery Stone
Co., Inc., 173 NLRB 11, 14-15.
For the foregoing reasons, I find, on all the evidence,
that, by the totality of its conduct (Florida Machine &
Foundry Corp., 190 NLRB No. 109), Respondent has
refused to bargain with the Union in good faith and has
thus violated Section 8(a)(5) and (1) of the Act. Since
Vickery's closedminded and dogmatic approach was
apparent as early as the first negotiating session, I find
that, as alleged in the complaint, the refusal to bargain
commenced on August 5 and has continued to date.
B. Rushlow 's Discharge
Rushlow was employed by Respondent as an operator
from sometime in 1968 until he was discharged on
December 14, 1971. According to Respondent, on Decem-
ber 13 Rushlow was responsible for filling a vessel with
liquid nitrogen and, through negligence, allowed a large
quantity, estimated by Respondent's witnesses at some 150
to 300 gallons, of liquid nitrogen to overflow, causing
damage by "thermal shock" to the bed of the truck.24
Although Respondent presented some evidence designed
to show that Rushlow had been reprimanded or criticized
on occasions in the past, Gray, who discharged Rushlow,
testified that he "absolutely" did not do so "for any other
reason than running this vessel over."
Rushlow testified that at or around 5:15 to 5:30 p.m. on
December 13 Plant Manager Oliver Stansbury came into
the control room, where Rushlow was working, and where
Rushlow's helper was. Rushlow replied that he was
performing his other duties. Stansbury said that a vessel
belonging to Woodward Wight Big Three, a customer and
affiliate of Respondent, was at the loading area to be filled
immediately. Rushlow asked Stansbury to watch the
control board while Rushlow attended to the vessel, but
Stansbury refused and left the plant, According to
Rushlow, he was specifically instructed to fill the vessel by
gravity (rather than with a pump), "out the vent," i.e., until
a stream of liquid ran out the vent, indicating the vessel
was full 25 Rushlow tested the purity of the vessel content.
About 5 to 10 minutes later Henry Holliday, Rushlow's
helper, came into the control room and Rushlow asked him
to hook up the hose and open the valve to start filling the
vessel. Since Holliday had other essential functions to
perform at the time, Rushlow said he would watch the
filling of the vessel. From the control room, where his
happy to suspend the hearing and let you do [so].
MR. VICKERY: We will suspend the hearing when they are willing to
give way on those four issues . We would negotiate. We are willing to
negotiate but not give ground on those issues.
23 At one point Vickery also conditioned further negotiations on the
Union 's withdrawing its "economic demands and excessive wage rates."
24 Respondent also presented some testimony to the effect that the rear
tires of the truck had been frozen by the liquid nitrogen , but its itemization
of the monetary loss made no mention of the tires.
25 The vent is at the top of the spherical vessel . However, a tube or pipe
is run from the vent through the vacuum casing around the sphere and
discharges at the bottom of the vessel.
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
primary and most important duties were performed,
Rushlow looked out at the vessel about every minute. After
some 20 to 30 minutes , Rushlow saw a flow of liquid
coming out of the vent , which indicated that the vessel was
full. He went out to the truck and shut the valve off and
then returned to the control room . A short time later,
Holliday came to the control room and Rushlow instructed
him to go out and disconnect the hose so the truck could
be on its way. Holliday left the control room, but returned
almost immediately , saying there were noises of explosions
at the truck, which frightened him. Leaving Holliday to
watch the board , Rushlow went outside toward the loading
area , also heard explosive sounds , and immediately
returned to the control room for safety's sake. He then
called Henry Sonnier26 of Woodward Wight, to report that
there was something wrong with the vessel . While waiting
for a Woodward Wight representative to arrive, Rushlow
went back out to the truck. Finding nothing apparently
wrong, he disconnected the hose. At this time he noticed
cracks in the metal plate on the bed of the truck.
Sonnier arrived with Eugene Ducote, the Woodward
Wight dispatcher who had originally brought the truck to
Respondent 's premises. Rushlow told them not to move
the truck because it might be dangerous to do so . He then
telephoned Stansbury for instructions. Stansbury said to
empty the vessel (putting the nitrogen back into the storage
tank, after checking its purity) and then to move the vessel
to another truck and refill it. Holliday and Ducote then
took the truck away to have the vessel moved to another
truck. They returned about 20 minutes later and refilled
the vessel . As to his participation , Holliday essentially
corroborated Rushlow's testimony.
Respondent's evidence conflicted in many respects with
the testimony of Rushlow and Holliday. Further, however,
there were inconsistencies and conflicts within Respon-
dent's evidence.
Stansbury testified that Ducote had driven the truck in,
with the vessel on it, at or about 4:30 p.m. With Ducote
present at least part of the time, Stansbury made repairs to
the vessel and then "released" it at or about 5 p.m., when
he personally directed Holliday to hook up the hose and
start filling. Stansbury testified that he had not told
Rushlow about the vessel to be loaded until after Holliday,
on instructions from Stansbury, had connected the hose
and begun to fill the vessel. Yet Stansbury also testified
that he "assumed" Rushlow had sent Holliday out to the
loading platform . Stansbury further testified that it is the
operator's (i.e., Rushlow's) duty to check the purity before
a vessel is loaded but Stansbury had had "no idea" who
checked the purity on the occasion in question.27
Kenneth W . Pelham , a dispatcher , called as a witness on
behalf of Respondent , testified that at or about I or 2 p.m.
on December 13, Cal Hodges , president of Woodward
Wight , called and said he would be sending over a partially
full vessel which was to be "topped off." At or around 4:30
p.m., before leaving for the day , Pelham told Rushlow
about the vessel to be "topped off." Pelham recalled that
Stansbury and Stanley W. Whitley, assistant plant manag-
er, were present at the time . Neither Stansbury nor Whitley
corroborated this . However , Pelham did not mention
Gray's presence at the time . However, Gray testified that
he had gone into the control room with Pelham and was
present when Pelham told Rushlow "the vessel was on the
load list and needed to be topped off." Gray also testified
that he was present when Stansbury told Rushlow that the
vessel was ready to be topped off and that Rushlow at that
point "went to look for his helper ." However , at another
point Gray said he thought Holliday was present in the
control room when Stansbury told Rushlow that the vessel
was ready to be "topped off." But, as previously stated,
Stansbury testified that he had had Holliday attach the
hose and start loading the vessel before he informed
Rushlow that it was ready.
The part of this conflicting testimony which is most
important to Respondent 's position is the alleged fact that
Rushlow was informed that the vessel was half full and
needed only to be "topped off." Other evidence presented
by Respondent , however , strongly tends to refute this
contention.
Ducote, the Woodward Wight employee who had
brought the truck and vessel to Respondent 's plant, was
called as a witness by Respondent . He testified that he
"put a regulator" on the vessel while Stansbury did other
work on it . Ducote testified unequivocally that he did not
know that the vessel was partially full.28 At the same time,
he acknowledged that "It's quite obvious that anything
that hold pressure is dangerous ." His testimony continued:
Q. But you weren't told anything about that this
particular operation might be dangerous because this
vessel was half full?
26 Although the record spells this name as "Somer ." Moore's notes spell
it "Sonmer " The latter is the spelling of the last name of an employee at
Respondent 's Beaumont , Texas, plant and of a supervisor at the Orange.
Texas , plant as reported in Big Three Industrial Gas & Equipment Co, 181
NLRB 912, in which the Oil , Chemical and Atomic Workers International
Union was certified as collective -bargaining agent at Respondent 's plants in
Beaumont and Orange , Texas, and Lake Charles, Louisiana.
27 The confusion in Stansbury 's testimony as a whole can be seen in the
following sample:
Q And you did not advise Mr Rushlow that the vessel was ready
to be loaded until after you started filling it by using Holliday Is this
right?
A Right.
Q Who checked the purity of the vessel?
A I have no idea.
Q. You normally fill vessels without checking the purity?
A. No. That's the operator'sjob.
Q But [who ] told Rushlow it was ready to be filled[9]
A. I wasn 't there Rushlow or somebody checked
Q. Is this the usual procedure"
A If the vessel hadn 't been checked , it was Mr Rushlow's
obligation to stop the filling
Q But Mr Rushlow hadn ' t been advised it was ready to be
loaded"
A As far as I know he knew that the vessel was ready to be
loaded.
28 The testimony is as follows.
Q Do you know how much liquid , if any , was in that vessel when
you backed it up"
A. No. I don't-well. I didn't
Q. What instructions did you have from Big Three" How much
liquid was to go in there"
A. All I know it was to be filled
Q How many gallons"
A. Five hundred . I guess five hundred The total capacity of the
vessel was 500 gallons.
BIG THREE INDUSTRIES , INC. 709
A. I am sure at one time-not on this one.
Q. That's what I mean.
A. No. I didn 't know it was half full.
With Respondent as safety conscious as it now claims to
be, it is incredible that Stansbury would permit Ducote to
perform a dangerous operation without at least mentioning
the fact , if it were a fact , that the vessel was half full. And
if, as Stansbury testified , a gauge prominently located in
the vessel showed it to be half full, it is strange that Ducote
thought it was empty.
Stansbury testified that , after having had Holliday hook
up the hose and start filling the vessel , he went into the
control room and told Rushlow "the vessel was over half
full and filling and to watch it." Then Stansbury again
"went outside and watched it. " He then went back into the
control room and told Rushlow "he had better watch it,
again ." Stansbury then left the premises . Stansbury
testified that Rushlow made no response to either of
Stansbury 's warnings to watch the vessel . Testifying on
rebuttal, Rushlow denied that Stansbury had said anything
about the vessel 's being half full.
Gray testified that he went through the control room and
out toward the parking lot at or about 5:30, after Stansbury
had left . Gray "noticed that the vessel was venting hard,"
whereupon he returned to the control room and "told Fred
Rushlow that the vessel needed attention . It needed
someone around it." According to Gray, Rushlow made no
response, and Gray left . On rebuttal , Rushlow denied this
testimony by Gray.
It is most unlikely that Rushlow would blatantly ignore
three warnings by the general manager and plant manager.
It would be extraordinary for two responsible company
officials to leave the premises hastily in the face of what
they claim was manifestly imminent danger and Rushlow's
alleged indifference . Vessels ordinarily are equipped with
copper tubing outlets through which there will be a flow of
liquid when a vessel had been 90 percent filled. Respon-
dent's counsel apparently sought to establish that Rushlow
was culpably negligent in not using the 10-percent line in
filling the vessel on December 13. Rushlow credibly
testified that vessels frequently were used with inoperable
10-percent lines . Rushlow and Holliday both testified that
the 10-percent line was inoperative on the vessel that night.
Stansbury testified that it was in working order , but he had
no specific recollection , basing his testimony solely on the
fact that he had released the vessel and he would not have
released it with a defective or inoperable 10-percent line.29
However, there was no more evidence of infallibility on
Stansbury 's part than on Rushlow 's. Indeed , the evidence
was uncontradicted that Rushlow was known as a careful
and conscientious operator.
29 "I checked the vessel out and changed the safety valves, checked the
regulator and released it for service . Q Did you check the 10-percent line?
A I checked the vessel . If the 10-percent line-if it-it had to be alinght, if I
released it "
30 On direct examination , Gray testified
A. The first appearance of it was cold It had ice on it The side
panels . . the four-inch chapels [sic I going around , they were frosted
They were frozen.
Q Was the entire flat bed surface covered with ice?
A Up to about three feet from the back of the truck
Q And all of the forepart of the truck bed was covered with Ice'
A The forepart was covered with ice
Several witnesses , including those called by Respondent,
indicated that it was not mandatory that the 10-percent
line be used in filling vessels with liquid nitrogen . Rushlow
credibly testified that on the occasion in question Stans-
bury specifically instructed that the vessel be filled by
gravity "out the vent"; i.e., that it be filled from above until
a steady flow emerged from the vent . Significantly
Stansbury did not attempt to look at the 10-percent line
when he claimed that he warned Rushlow that the vessel
needed attention.
Finally , Gray rejected counsel 's suggestion concerning
the 10-percent line. Gray testified:
My personal opinion , I think we are putting a lot of
emphasis on this 10% line that 's needless . I think when
a man is filling a vessel and he knows that it is going to
take 30 minutes to fill a vessel or to top it off, I think it
should be watched continuously. My theory is tfiat a
man should be there and if he is not going to be there,
he should turn the valve off.
The undisputed evidence establishes that an operator 's first
and overriding obligation is to attend the control board
and protect plant operations . Gray maintained only that
an operator "could leave the control room for short
intervals of time ." There are also discrepancies and
deficiencies in Respondent 's evidence concerning events
after the accident.
Whitley testified that he was working on the repair of a
machine when , sometime between 5:30 and 6, Rushlow
rushed up "and said that he had messed up." According to
Whitley , Rushlow said : "There is some liquid vessel
running over ." Whitley went out to inspect . According to
him, "[f ]t looked like an ice hockey arena," there were
"either two or three inches [of ice or frost ] underneath the
vessel itself" and a 4 or 5 square foot area of ice on the
truck bed . The ice had begun to melt. Ducote , however,
testified that , when he returned to the plant around 5:30 or
6, there was "a thin coating of ice" on the bed of the truck.
Employee W. C. Mahary was called as a witness for
Respondent . According to Ducote , Mahary was at the
plant when Ducote arrived . Mahary testified that the truck
bed "had a small frosted area underneath the vent line and
it appeared to me it had been washed down to thaw it
out "30 Yet Gray maintained that when he arrived at or
around 8:15 or 8 : 30 there was considerable ice or frost still
covering an extensive area in and around the truck 31
As previously stated , Rushlow testified that he tele-
phoned Stansbury and received instructions to unload the
vessel , move it to another truck , and then refill it.
Stansbury , however, testified that when Rushlow tele-
phoned , at or about 7 p.m., Stansbury merely told Rushlow
to call Gray . Gray testified that he learned about the
Q. Had any of it run off onto the ground?
A. Obviously it had because there was frozen substance on the
ground under the truck... .
Q. How much was under the truck ? Do you have any way of
estimating that?
A I would have to-as I didn ' t measure it-1 would have to
assume that this area was about five or six feet in diameter.
31 By leading question , Respondent's counsel sought to establish that
Holliday , at Rushlow 's direction , had washed the area with a water hose
Counsel's attempt was unsuccessful. Rushlow and Holliday credibly
testifying that they had not done so.
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accident by a telephone call he received from Hodges, of
Woodward Wight, at or about 8 p.m. Gray testified that he
immediately went to the plant, arriving about 8:15 or
8:30.32 Gray testified that, when he arrived at the plant, in
response to Hodges' call, he asked Rushlow what had
happened, and Rushlow replied: "It's pretty obvious. I run
the vessel over." Gray "shrugged [his] shoulders in disgust
and went to the plant office." The nitrogen had already
been removed from the vessel. Gray told the men not to
move the truck until it had thawed out. However, it was
driven to Delta Southern, -a nearby company having
hoisting equipment, and the vessel was there transferred to
another truck. Gray left the plant before the vessel
returned to Respondent's premises. Rushlow, however,
testified that Gray did not arrive at the plant until after the
vessel had been emptied and the truck had been driven off.
According to Rushlow, Gray asked where the truck was,
Rushlow replied that he believed it was at Delta Southern,
at which point Gray left. Rushlow assumed Gray went to
Delta Southern.
As shown, Whitley and Gray are Respondent's principal
witnesses to the alleged substantial damage, which,
according to them, could have been caused only by the
overflow of from 150 to 300 gallons of liquid nitrogen,
which would have taken some 20 to 30 minutes. Nobody
testified to Whitley's presence; he and Gray testified that
Whitley, with occasional assistance by Gray, had been
working all day, and continued after normal quitting time,
on repair of the bearing of a machine in the plant. Gray
testified that the machine had been test operated on
December 12, at which time the bearing burned out. On
rebuttal. employee Sheats produced a graphic chart of the
plant operation on December 12. Respondent's counsel
objected to the introduction of the chart in evidence,
maintaining that it had been "stolen" from the plant.
Sheats testified that such charts, which are made in the
regular course of operations, are never referred to after
they are made and generally are discarded. His statement
was not denied and Respondent 's counsel himself indicat-
ed that there was no reason why Sheats should not have
access to them.33 Expressly declining to accept or rule on
counsel 's protestation that Sheat 's taking of these charts,
apparently having no monetary or other value, constituted
theft, I sustained Respondent's objection to the introduc-
tion of the chart. Sheats then testified that he knew how to
read and interpret charts and that such a chart would
reflect test operation of the machine on which Whitley was
supposed to have worked. Sheats testified further that he
had examined the chart for December 12 and it showed
that no such machine was started or shut down on
December 12.34 Respondent's counsel did not cross-exam-
ine and Sheats ' testimony remains uncontradicted and is
credited.
On all the evidence, together with careful observation of
32 Gray testified that "[ tjhe Woodward Wight people were still there"
Ducote, however, did not mention Gray's arrival or presence.
33 Counsel said, in part "He said he took them All he had to do was ask
to take these things. He didn 't do that "
31 "That lit unit could have been down The IR-an IR unit could have
been down but it wasn 't started up or one went down Q No test was made
of it on December 12, 1971? A What it shows? Q No test was made of a
bearing which would show on that day . A. That's right."
the demeanor of the witnesses , I credit Rushlow's and
Holliday's version of the events on the evening of
December 13 and discredit Stansbury,35 Whitley, and Gray
wherever their testimony conflicts with that of the General
Counsel's witnesses.
Presumably to establish the enormity of Rushlow's
misconduct in leaving the truck unattended during loading,
Respondent introduced an interoffice memorandum from
Houston to the managers at 27 named locations stating
that , because of possible penalties for violation of Federal
regulations , "there must be no deviation ... for any
reason" from the rule requiring constant attendance at the
trucks during loading and unloading . The memorandum,
however, is of little significance in the present case , since it
was sent on May 10, 1972, 5 months after the events here
involved . There are conspicuous signs at the loading area
requiring drivers to remain with their vehicles during
loading . However , Respondent's own witnesses confirmed
that drivers do not normally obey that rule. Perhaps most
significant is the fact that , so far as the record discloses.
Ducote, the driver of the truck here involved, was not even
mildly reprimanded (except by Rushlow) for having
absented himself before the loading began.
Holliday and Rushlow both testified , without contradic-
tion, that shortly after becoming general manager of the
Baton Rouge plant , in October 1971, Gray announced new
personnel policies . He said there would be four causes for
immediate discharge: fighting on the premises , sleeping on
the job , drunkenness or drinking on the job , and firearms
on company property . In all other cases, before being
discharged for cause employees would first be given oral
reprimands and then written reprimands, possibly accom-
panied by a suspension of up to 3 days. No attempt was
made to follow this or any other reasonable procedure
before Rushlow was discharged . Indeed , Respondent
summarily declined Rushlow's offer to reimburse the
Company for the loss it claimed to have suffered.36
Rushlow credibly testified as follows concerning the
possible explanations for the event in issue:
... The first thing that came to my mind Mr.
Stansbury had worked on this vessel prior to my
loading this way. . . . With my knowledge I figured
that a safety had gone off on the sphere; that it had
built up pressure and somehow or something wasn't
right with the vessel ... .
s • s •
... Coming from my mind that the bed of the truck
had cracked from this liquid was one observation I had
or that the vessel had created pressure and jumped off
the truck and cracked the bed of the truck. That was
my second theory of what happened.
I do not find Rushlow 's testimony inconsistent with the
statement in his pretrial affidavit that he "assumed that the
35 In Big Three Equipment Co. 145 NLRB 1685, 1692. In 24. 1694, In
31, 1695 , fn. 33, enfd in major part 359 F 2d 77 (CA . 5). Stansbury's
testimony was discredited as evasive and self-contradictory . That appraisal
is equally descnptive of his testimony in the present case
36 As credibly described by Rushlow , his offer was made solely to keep
his job and was accompanied by a disclaimer of responsibility He refused
to sign his dismissal slip because he thought it untrue
BIG THREE INDUSTRIES, INC.
freezing nitrogen caused the cracks." The evidence leaves
little doubt that this assumption was correct. So far as
culpability or blame was concerned, the question would be
how the nitrogen escaped from the vessel. If Respondent's
witnesses were to be believed, there was considerably more
frost and ice around at 8:15 or 8:30, when Gray saw the
truck, than there was at or around 5:30, when Mahary saw
it. If that was so, it would follow that the damage was not
caused by an overflow during the loading process but
rather presumably by a leak or some other cause, since
there was no contradiction of Rushlow's testimony that he
had closed the loading valve before any of the other
witnesses arrived.
Perhaps the most telling circumstance is the undisputed
fact that Gray discharged Rushlow without ever seeking to
ascertain his or Holliday's versions of the events. Even
under Respondent's evidence, Rushlow and Holliday were
the only people present at the time the accident actually
happened. Any genuine interest in determining the truth,
to say nothing of attempting to act fairly, would have
dictated giving the employees an opportunity to state their
views.
The evidence as a whole fails to establish that Rushlow
was, through negligence or other misconduct, responsible
for the damage which occurred on December 13. Further,
the record as a whole leads inexorably to conclusion that
Rushlow's precipitous discharge on December 14 was not
motivated solely by a belief on the part of Respondent's
representatives that Rushlow had caused the damage and
that this conduct warranted immediate discharge.
The finding that Rushlow was not properly discharged
for cause does not in itself establish that his discharge was
violative of Section 8(a)(3) of the Act, as alleged in the
complaint. The real motivation must be found on the basis
of inferences. N.L.R.B. v. Melrose Processing Co., 351 F.2d
693, 698 (C.A. 8).
One possibility is that Stansbury, who had performed
some repair work on the vessel before it was loaded, had
negligently left it in a defective condition, and that
Rushlow was made the scapegoat to protect Stansbury. If
this were the fact, Rushlow's discharge, while unjust, would
not be violative of the National Labor Relations Act.
However, there was no evidence to this effect. From a
management point of view it would be imprudent to retain
Stansbury in the responsible position of plant manager if
he had been responsible, through negligent repair of a
vessel, for causing a dangerous condition and substantial
damage. Absent compelling evidence, I cannot indulge in
conjecture ascribing such unwise conduct to Respondent.
The motivation for Rushlow's discharge must be sought in
considerations which would serve some self-interest of
Respondent. The evidence as a whole leads to the inference
that the discharge was designed to further Respondent's
interest in being rid of the Union.
In appraising the evidence, Respondent's "general bias
and hostility toward the union . . . are proper and highly
significant factors for Board evaluation in determining
37 See also Big Three Industrial Gas & Equipment Co., 181 NLRB 1125,
enforcement denied 441 F.2d 774 (C.A. 5).
38 This is not necessarily inconsistent with Rushlow's uncontradicted
testimony that within a month of his discharge his work was praised by
Gray, who further said that Rushlow's prospects of becoming an assistant
711
motive." Respondent's underlying hostility toward the
Union is graphically reflected in its bargaining technique,
as discussed above: It is further demonstrated by a series of
other unfair labor practices, including discriminatory
discharge in violation of Section 8(a)(3). See Big Three
Welding Equipment Company, 145 NLRB 1685, enfd. in
major part 359 F.2d 77 (C.A. 5); Big Three Industrial Gas &
Equipment Co., 165 NLRB 30 and 1069, enfd. in major part
405 F.2d 1140 (C.A. 5).37 The evidence here establishes
that Rushlow was a worthy specific target for Respon-
dent's union animus.
Rushlow assumed the role of spokesman for the
employees and union activist. On August 5, he testified on
behalf of the Union at a representation proceeding
involving Woodward Wight Big Three. And he served as a
member of the Union 's negotiating committee.
At the negotiating meeting on August 26, Moore invited
employee questions. Stating that he was asking questions
raised by other employees, Rushlow raised several matters,
including the absence of Christmas bonuses and the cost of
health and hospitalization benefits. According to both
Moore and Arnold, Rushlow in effect accused Respondent
of not paying half of the insurance premiums, which
Respondent said it was paying. Moore was visibly and
vocally angered by Rushlow's statements.
Sometime toward the end of October, shortly after
arriving at the Baton Rouge plant, Gray held a safety
meeting. At that meeting, Rushlow complained of several
safety deficiencies and stated that the employees would not
hesitate to go to the Federal government if necessary to
have remedial action. taken. Moore requested that the
employees withhold such action to give him an opportunity
to have matters corrected. The employees agreed to that
request.
Employee Sheats had worked for Respondent for about
7-1/2 years and had been outspokenly antiunion . Howev-
er, he felt the Baton Rouge employees were being unfairly
treated and therefore supported the present campaign. He
credibly testified to a conversation he had with Gray
toward the end of October. According to Sheats, Gray
expressed displeasure with Sheat's change of heart. Gray
also told Sheats to "get together with the other men" and
vote against authorizing a strike. Sheats then credibly
quoted Gray as having said: "If everything goes as I expect
it to, we will be able to apply for decertification of the
Union shortly."
According to Sheats' uncontradicted testimony, Gray
said there was a small group of employees with whom he
could not communicate, and he specifically identified
Rushlow as the one employee who "had to go."38 It is
noteworthy that Rushlow was discharged at just about the
time the Union was attempting to secure resumption of
contract negotiations, which had been quiescent since
October.
Taken as a whole, the evidence shows an antiunion
employer bent upon never reaching an agreement with the
Union and hopeful that there will be sufficient defection
plant manager were good . Like discharge , promotion to a supervisory
position would remove Rushlow as an effective spokesman for the Union or
the employees . The praise for Rushlow . however, is inconsistent with the
varied criticism contained in Rushlow 's discharge slip and in the testimony
of some of Respondent 's witnesses.
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
among the employees for a successful decertification
petition at the end of the certification year . The discharge
of Rushlow manifestly would tend to encourage such
defection . It would be particularly effective at this
time-when the Union was seeking to have negotiations
resumed , almost 2 months after the last meeting.
In the absence of any credible explanation for the
unduly harsh treatment of Rushlow , without his even being
afforded an opportunity to defend himself , I can conclude
only that he was being used as an example to the other
employees of the potential cost of concerted and protected
activities . Even if Respondent had reasonably believed that
Rushlow 's negligence had caused the damage of the truck,
and therefore had ground for discharging him, the record
as a whole requires the inference that "the actual reason
for the discharge was because of Union activities," and
therefore "it was a violation of § 8(a )(3)." N.L.R . B. v. Big
Three Industrial & Equipment Co., supra, 405 F .2d at 1142.
C. Section 8(a)(1)
The complaint in Case 15-CA-4312 alleged three
independent violations ansing from Gray 's conversations
with Sheats in October.
I do not consider Gray 's advising Sheats to tell other
employees not to authorize a strike by the Union to
constitute coercion or interference with the employees'
rights. According to Sheats . Gray explained his advice by
pointing out, in effect , that a strike would deprive the
employees of their freedom of individual action . There was
no suggestion of any threat of retaliatory action by
Respondent . I consider Gray's remarks in this connection
as permissible free speech.
On the other hand , I do find that Gray could not "talk
to" Rushlow and that Rushlow "has got to go" amounted
to a threat of discharge for active support of the Union
and/or espousal of employee complaints . As such, the
statement was violative of Section 8(a)(I).
Gray's statement that Respondent intended to file a
decertification petition may well have been part of the
pattern of Respondent's unlawful refusal to bargain with
the Union . However , it does not appear to be independent-
ly coercive or otherwise violative of Section 8(a)(l).
The complaint also alleged that Moore independently
violated Section 8(a)(1) by chastising Rushlow and
accusing him of disloyalty to Respondent when, at the
August 26 negotiating meeting , he expressed doubt that the
Company was being truthful in saying that it was paying
half of the premiums for the employees' hospitalization
and health insurance . In my opinion , Moore's reaction was
a natural response to an accusation of dishonesty , whether
or not the accusation was warranted . Moore's statement
was part of a bargaining session and was unaccompanied
by any threat . I find it was not independently violative of
Section 8(a)(1).
At the outset of the hearing , the General Counsel
amended the complaint to allege that sometime in June
1972 Assistant Plant Manager Whitley "threatened to take
away certain employee privileges if the Union were
successful in its bargaining efforts." In support of this
allegation the General Counsel presented testimony by
employee William Diamond that about a week before the
present hearing Diamond asked Assistant Plant Manager
Whitley if he had heard anything recently about the
Union . According to Diamond , Whitley replied that "if the
Union came in they were going to take the table and chairs
and the coffee machine and all out of the office " and "the
helpers would stay out . . . in the plant" while the
operators would remain in the control room for their entire
8-hour shifts . Additionally, Whitley "said something about
all the missing , taking off, was going to have to cease."
Whitley was not connected with the bargaining. His
statements , as briefly summarized by Diamond, are
certainly susceptible of the interpretation that he was
referring to contract terms which Respondent would
demand . Under the circumstances , I cannot conclude that
the statements constituted a threat of retaliation or
reprisals for the employees ' having chosen to be represent-
ed by the Union . At the most , Whitley's statements were
part of the refusal to bargain and not independently
violative of Section 8(a)( I).
It may be noted , however , that a contrary finding as to
the alleged violations of Section 8(a)(l) would not
substantially affect the results of this case since, as set forth
below, I shall in any event recommend a broad cease-and-
desist order.
CONCLUSIONS OF LAW
1. Respondent violated Section 8(a)(5) of the Act by
failing to bargain in good faith with the Union on and after
August 5 , 1971, as the exclusive bargaining representative
of its employees in the following appropriate bargaining
unit: All production and maintenance employees, includ-
ing truckdrivers and plant clerical employees , employed by
Respondent at its Baton Rouge , Louisiana , facility,
exclusive of all other employees , office clerical employees,
guards and supervisors as defined in the Act.
2. Respondent violated Section 8(a)(3) and ( 1) of the
Act by discharging Fred J. Rushlow on December 14,
1971, and refusing to reinstate him thereafter.
3. Respondent violated Section 8(a)(l) of the Act by
threatening the discharge of an employee because of his
union or other protected concerted activities.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
5. The General Counsel has not shown by a preponder-
ance of the evidence that Respondent has engaged in any
unfair labor practices other than those found above.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices , I shall recommend that Respondent be
ordered to cease and desist therefrom and take affirmative
action of the type customarily ordered in such cases.
Having found that Respondent discriminatorily discharged
Fred J. Rushlow , I shall recommend that Respondent be
required to offer him immediate and full reinstatement,
with backpay , to be computed in the manner established in
F. W. Woolworth Company , 90 NLRB 289, together with
interest at 6 percent per annum in accordance with Isis
Plumbing & Heating Co ., 138 NLRB 716.
BIG THREE INDUSTRIES, INC.
Respondent's discriminatory discharge of Rushlow and
its cynical and sham approach to its bargaining obligation
strike at the very heart of the Act. Additionally, as set forth
above, Respondent's proclivity to violate the Act has been
established by previous unfair labor practices concerning
which broad cease-and-desist orders have been issued and
judicially sustained. Accordingly, I shall recommend entry
of a broad cease-and-desist order.
Because the evidence indicates that Respondent has been
"stalling" and undoubtedly intends to continue doing so,
with the purpose of dissipating the Union's support, I shall
also recommend that the "certification year" be extended
through 1 year after Respondent commences to bargain in
good faith. Raynal Plymouth Company, 175 NLRB 527.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in this proceed-
ing, and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended: 39
ORDER
Respondent, Big Three Industries, Inc., its officers,
agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith
concerning wages , hours, and other terms and conditions
of employment with General Truck Drivers, Warehouse-
men & Helpers Local No. 5, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, Ind., as the exclusive representative of
all production and maintenance employees, including
truckdrivers and plant clericals employed by Respondent
at its Baton Rouge, Louisiana, facility, exclusive of all
other employees, office clerical employees, guards, and
supervisors as defined in the Act.
(b) Threatening to discharge an employee for engaging in
protected concerted activity or for supporting the above-
named labor organization or any other labor organization,
except to the extent that the right to do so may be
restricted by a valid contractual provision authorized
under the Act.
(c) Discouraging membership in the above-named labor
organization (or any other labor organization, except to the
extent permitted by a contractual provision valid and
authorized by the Act) by discharging an employee or by
discriminating in any other manner in regard to hire and
tenure of employment or any term or condition of
employment.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of the right to self-
organization, to form, join, or assist any labor organiza-
tion, 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.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Bargain collectively in good faith with General Truck
Drivers, Warehousemen & Helpers Local No. 5, affiliated
with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, Ind., as the
exclusive representative of all the employees in the
713
appropriate unit defined above, and embody in a signed
agreement any understanding reached. Regard the Union
as exclusive agent as if the initial year of certification has
been extended for an additional year from the commence-
ment of bargaining pursuant hereto.
(b) Offer Fred J. Rushlow immediate and complete
reinstatement to his former job or, if that position is no
longer in existence, to a substantially equivalent position,
without prejudice to his seniority or other rights and
privileges, and make him whole for any loss of earnings he
may have suffered by reason of the discrimination against
him, in the manner set forth in the section of this Decision
entitled "The Remedy."
(c) Notify immediately the above-named individual, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement , upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
(d) 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 analyze the amount of backpay due under the
terms of this recommended Order.
(e) Post at its facility in Baton Rouge, Louisiana, and at
its home office in Houston, Texas, copies of the attached
notice marked "Appendix." 40 Copies of said notice, on
forms provided by the Regional Director for Region 15,
after being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director for Region 15, in
writing, within 20 days from the date of the receipt of this
Decision, what steps the Respondent has taken to comply
herewith.41
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges violations of the
Act not specifically found herein.
99 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall , as provided in Sec.
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
40 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
41 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read.
"Notify the Regional Director for Region 15 . in writing, within 20 days
from the date of this Order , what steps the Respondent has taken to comply
herewith "
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties had the opportunity to
present their evidence , it has been found that we violated
the law and we have been told to post this notice about
what we are committed to do.
The Act gives all employees these rights:
To organize themselves
To form, join, or help unions
To bargain as a group through a representative
of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refuse to do any or all of these things.
We assure all of our employees that we will not do
anything that interferes with these rights.
WE WILL offer Fred J. Rushlow immediate and full
reinstatement to his formerjob or, if that job no longer
exists, to a substantially equivalent job, without
prejudice to his seniority or other rights and privileges.
WE WILL make Fred J. Rushlow whole for any loss
of earnings he may have suffered by reason of his
discharge by us on December 14, 1971, together with
interest.
WE WILL, in good, faith, bargain collectively with
General Truck Drivers, Warehousemen & Helpers
Local No. 5, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, Ind., for the unit described below in respect
to rates of pay, wages, hours of work, and other terms
and conditions of employment , and, if an understand-
ing is reached, reduce it to writing and sign it. The
bargaining unit is: All production and maintenance
employees, employed by us at our Baton Rouge,
Louisiana , facility , exclusive of all other employees,
office clerical employees , guards and supervisors as
defined in the Act.
WE WILL NOT discharge any employees or threaten
them with discharge or any other form of reprisals for
engaging in protected concerted activities or for joining
or supporting General Truck Drivers, Warehousemen
& Helpers Local No. 5, affiliated with International
Brotherhood of Teamsters , Chauffeurs , Warehousemen
& Helpers of America , Ind., or any other labor
organization.
Dated By
BIG THREE INDUSTRIES,
INC.
(Employer)
(Representative) (Title)
We will notify immediately the above -named individual, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement , upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board 's Office, Suite
2700, Plaza Tower, 1001 Howard Avenue , New Orleans,
Louisiana 70113, Telephone 504-527-6361.