Body & Tank Corp.

National Labor Relations Board - Board Decisions

Nov 8, 1963

144 N.L.R.B. 1414 (N.L.R.B. 1963)

1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Body & Tank Corp. and Local 455, International Association of
Bridge, Structural & Ornamental Iron Workers, AFL-CIO.
Case No. 2-CA-9116. November 8, 1963
DECISION AND ORDER
On July 17, 1963, Trial Examiner Reeves R. Hilton issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent, the Charging Party,
and the General Counsel filed exceptions to the Intermediate Report
and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The Board has considered the Intermediate Report and the entire
record in the case, including the exceptions and briefs, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner with the exceptions and modifications noted herein.'
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner with the following modifications : 2
I Inasmuch as they, like Member Fanning who would adopt the Intermediate Report
in toto, agree with the Trial Examiner that Respondent shut down its plant on Febru-
ary 4, 1963, to compel the Union to accept its contract terms, thereby violating Section
8(a) (5), (3 ), and (1 ). Members Leedom and Brown deem it unnecessary to pass upon
the Trial Examiner 's alternative 8(a) (5) finding as of February 4 or upon his finding
that Respondent further violated Section 8 ( a) (5) in the recall of laid -off employees. Such
additional findings, Members Leedom and Brown note , would add nothing of substance to
the Order herein.
As it is not clear from this record whether recalled employees Spranger , Butera , Witte,
Woerful, Massiello , and Edward or Earl Smith have been reinstated to their former or
substantially equivalent positions , our Order shall provide that these employees , like the
others locked out, be reinstated to their former or substantially equivalent positions and
be made whole for the loss of pay suffered as a result of the discrimination against them
to the date of such reinstatement. If, of course , Respondent has already so reinstated the
six employees under discussion , its obligation in the matter of reinstatement has been
fulfilled
We note , and correct , the apparently inadvertent error of the Trial Examiner in finding
that Respondent ' s president testified that, on about February 1, only 1,000 man -hours of
work were available. The record indicates that the testimony was that only 100 man-hours
were available.
2 The Recommended Order is hereby amended by substituting for the first paragraph
therein, the following paragraph:
Upon the entire record in this case, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended , the National Labor Relations Board hereby orders
that Respondent , Body & Tank Corp ., its officers , agents, successors , and assigns , shall :
144 NLRB No. 136.
BODY & TANK CORP. 1415
1. Substitute the following for paragraph 1(a) :
(a) Refusing to bargain collectively with Local 455, International
Association of Bridge, Structural & Ornamental Iron Workers,
AFL-CIO, as the exclusive representative of all the employees in the
appropriate unit set forth below with respect to wages, hours, and
other terms and conditions of employment.
2. Substitute the following for paragraph 2 (a) :
(a) Resume its shop operations, and offer to those employees im-
mediate and full reinstatement to their former or substantially equiva-
lent positions, without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of pay suffered by
them in the manner set forth in the section of the Intermediate Re-
port entitled "The Remedy," as modified by the Board's Decision
and Order.
3. Delete the second paragraph in the notice and the second sentence
in the seventh paragraph relating to employees Spranger, Butera,
Witte, Woerful, Massiello, and Smith.
MEMBER FANNING, concurring in part and dissenting in part :
I concur in the majority decision in this case except that, unlike
my colleagues, I would affirm the Trial Examiner's additional find-
ings that the Respondent violated Section 8 (a) (1) and (5) of the
Act by failing to notify the Union of its 'contemplated shutdown and
giving the Union an opportunity to bargain with respect to this
matter and further failing to bargain about the order for recalling
employees on layoff status. As the Trial Examiner found, the Re-
spondent's unilateral decisions vitally affected the employees' wages,
hours, and conditions of employment and were mandatory subjects
for bargaining. "Unilateral action by an employer without prior dis-
cussion with the union does amount to a refusal to negotiate about
the affected conditions of employment under negotiation, and, must
of necessity obstruct bargaining, contrary to the congressional
policy. ..." a The Board's decisions in Town and Country 4 and
Fibreboard 5 relied in large part upon the Supreme Court's decision
in Order of Railroad Telegraphers v. Chicago and Northwestern
Railway Co.,6 where it was specifically held that a decision by manage-
ment to abolish or discontinue any job was a mandatory subject for
bargaining. In view of the Board's and the courts' specific rulings
on the issues raised by the General Counsel's complaint and the Trial
Examiner's findings with respect to the totality of the Respondent's
unfair labor practices, I perceive no reason for not affirming the Trial
Examiner in these respects.
3 N L R B. v. Benne Katz, etc., d/b/a Wilhamsburg Steel Products Co., 369 U S 736, 747.
`Town & Country Manufacturing Company, Inc, and Town & Country Sales Company,
Inc, 136 NLRB 1022, enfd 316 F 2d 846 (CA 5)
5 Fibreboard Paper Products Corporation, 138 NLRB 550 , enfd. 322 F. 2d 411 (CA.D C.).
6 362 U.S. 330.
1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge duly filed by Local 455, International Association of Bridge,
Structural & Ornamental Iron Workers, AFL-CIO, herein called the Union, the
General Counsel of the National Labor Relations Board, through the Regional
Director for the Second Region, issued a complaint dated March 29, 1963, against
Body & Tank Corp., herein called the Respondent or the Company, alleging viola-
tions of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as
amended (29 U.S.C. Sec. 151, et seq.), herein called the Act. The answer admits
certain allegations of the complaint but denies the commission of any unfair labor
practices.
Pursuant to notice, a hearing was held before Trial Examiner Reeves R. Hilton
at New York City on April 22 through 26, 1963. All parties were present and rep-
resented by counsel at the hearing and were afforded full opportunity to be heard,
to introduce relevant evidence, to present oral argument, and to file briefs. Counsel
for the parties submitted briefs which I have considered fully.
Upon consideration of the entire record, and from my observation of the wit-
nesses, I make the following:
FINDINGS OF FACT
1. THE COMPANY'S BUSINESS
The pleadings show that the Respondent, a New York corporation, maintains its
office, plant, and place of business in Mineola, New York, where it is engaged in the
manufacture, sale, and distribution of steel and metal beams, girders and parts
for building construction, and related products. In the course of its operations
the Company annually purchases steel and other goods and materials valued in
excess of $50,000, which are transported and delivered to its plant directly from
States other than the State of New York.
I find the Company is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization as defined in Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary statement; the issues
Louis J. Spector, company president, testified the Company's relationship with
the Union began about 1950 when it granted recognition to the Union and since
that time the parties have executed some six collective-bargaining agreements, the
last one being effective from July 1, 1961, to January 31, 1963. This agreement
provided for automatic renewal for 1 year subject to modification or termination by
either party upon giving at least 60 days' notice in writing to the other party.
By letter dated November 7, 1962, the Union notified the Company of its desire to
terminate the agreement as of January 31, and requested a meeting with the Com-
pany for the purpose of negotiating a new agreement. Spector acknowledged receipt
of this letter on November 14.
Thereafter representatives of the parties met at the plant offices on November 26
and 30, 1962, and January 3 and 8, 1963. As a result of these meetings the parties
reached substantial agreement on contract terms with the exception of vacations
or the vacation schedule. On February 1, the parties met with Julius Manson of the
New York State Board of Mediation.
The -complaint alleges that on February 4, 1963, during the course of bargaining
negotiations the Company closed down its plant, suspended operations, and laid off
its employees in the bargaining unit described below. The complaint further alleges
that the Company refused to reinstate the employees unless the Union agreed to
withdraw its charges and that the object of the shutdown and layoff was to force
the Union to accept the Company's terms of a new collective-bargaining agreement.
By engaging in such conduct the Company thereby violated Setcion 8(a)(1), (3),
and (5) of the Act. At the conclusion of the General Counsel's case I granted his
motion to amend the complaint to allege that in March and April 1963, the Company
unilaterally changed the terms and conditions of employment in the plant with
respect to the order for recalling employees from layoff without discussing such
change with the Union and without affording the Union an opportunity to bargain
as to such change.
BODY & TANK CORP. 1417
The Company's answer admits the employees were laid off for economic reasons
and denies the remaining allegation of the complaint.
The complaint, as amended at the outset of the hearing, alleges that at all times
material the Union has been and is the exclusive representative of all employees in
the following unit:
All employees engaged in the fabrication of ferrous and non-ferrous metals,
iron, steel and metal products, or steadily engaged in maintaining production
machines and equipment in or about the Company's shop, employed by the
Company at its plant, exclusive of clericals, superintendents, non-working fore-
men, and all supervisors as defined in Section 2(11) of the Act.
The Company concedes the appropriateness of the unit and admits that the Union
has been the exclusive representative of a majority of the employees therein. How-
ever, the Company denies it has information sufficient to form a belief that the
Union represents a majority of the employees at the present time
The parties stipulated that there were 25 employees in the bargaining unit as of
February 1, 1963. It might be noted that the expired agreement contained a valid
union-security clause. The Union also produced records, properly authenticated,
showing that 24 of the employees in the unit were members of the Union and at
least 22 had paid their union dues through January 1963. There is no evidence
indicating any of the employees had renounced their membership or that the Union
had suspended or expelled any of the employees from membership therein.
I find that at all times material herein the Union was, and now is, the exclusive-
bargaining representative of all the employees in the bargaining unit.
B. Events leading to the shutdown of February 4
In brief, the Union at the early meetings requested retention of all terms and
conditions in the existing agreement, plus an increase of 25 cents an hour, effective
February 1, severance pay, and June 30, 1964, as the termination date of the new
agreement. The Company offered to extend the current agreement but requested
changes in the vacation clause contained therein.
1. The meeting of January 8, 1963
This was the situation when the parties met on January 8. At this meeting the
Union was represented by Ernie Sparks, president; Meyer Tessler, vice president;
Frank Candelora, business agent; Daniel Prelim, shop steward; and the executive
board i Spector and Charles R. Kimmel, general manager, appeared on behalf of
the Company. After some discussion the Union submitted a proposal which pro-
vided for a general increase of 10 cents an hour, retention of all terms and conditions
contained in the existing agreement, and a termination date of January 30, 1964.
The Company agreed to the proposal provided some change or changes were made
in the vacation provision in the current agreement. The Union refused to accept
any such changes and, admittedly, the only issue between the parties was the vacation
clause. The existing agreement provided for annual vacations based upon the
length of continuous service of the employee and ranged from 2 days' vacation for
6 months' service to 2 calendar weeks for 5 years' service, 3 weeks for 10 years,
and 4 weeks for 15 years.
According to Tessler and Candelora the Company wanted to eliminate the fourth
week from the vacation schedule so that its vacation provision would be the same as
the one contained in the agreement between the Union and the Allied Association
of Structural Steel Manufacturers (herein called the Association), which provided,
inter alia, for 2 weeks' vacation for 10 years' service and 3 weeks for 15 years' service.
Indeed, Tessler stated the Company requested the same agreement as the association
agreement, which, it might be noted, also provided for a general increase of 10
cents an hour. Candelora further stated that Spector and Kimmel complained of
the more favorable vacation terms granted members of the Association and re-
quested that its entire vacation schedule be adjusted to the periods set forth in the
association contract.
Spector and Kimmel testified that the parties were in agreement on all contract
terms except the vacation clause. They further stated that while the Cownany-
wanted the fourth week eliminated from the provision, that was not the only issue,
1 Sparks died in the latter part of January and Tessler succeeded him as president
The executive board consisted of five members including Sparks, Tessler, and Candelora.
1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they also insisted that the entire vacation schedule be equalized with the vacation
schedule in the association contract , which the Union flatly rejected.
The session ended on that note.
On January 31, the agreement expired.
2. The meeting of February 1
On the above date, Tessler, Candelora, and Prehm and Attorney Harry B. Sale,
appearing on behalf of the Company , met with Commissioner Manson of the New
York State Board of Mediation.
There is no serious dispute regarding the events at this meeting . The parties
outlined their positions on the vacation issue and Manson then suggested that since
only four or five employees were eligible for the fourth week of vacation the Union
could absorb the cost of the fourth week for the coming year , which amounted to
about $500, by postponing the effective date of the 10-cent general wage increase for
a month or so. Sale said he would recommend acceptance of the proposal and in-
quired if it was acceptable to the Union . Candelora stated they could not give a
definite answer to the proposal but they would submit it to the members for approval
or disapproval . Manson suggested that Sale first learn of the Company 's position
and Sale left the room to telephone Spector, but was unable to reach him. Sale
thereupon returned and informed the group he could not contact Spector. Sale then
left the meeting with the understanding that he would return to his office and make
further efforts to contact Spector and advise Manson of Spector 's position regarding
the proposal . Tessler and Candelora also related that during the course of the
meeting Sale stated there was very little work scheduled at the plant , in fact work
had been slack from November through January, and indicated the Company might
have to lay off some of the employees.
Sale testified that upon his return to his office that afternoon he found a message
to call Manson , which he did. Manson told Sale there was no need to call Spector
because the Union had rejected his proposal.
Candelora said that after the meeting he, Tessler, and Prehm went to the Union
hall, arriving there around 3:45 p.m. Candelora told Prehm to call the employees
at the plant , which he did. Candelora then telephoned Spector and, after referring
to the meeting with Manson , stated that he would submit Manson 's proposal to the
employees on Monday morning , February 4, before the start of their work shift and
that the Union would continue negotiations with the Company . Spector said he
did not know if he would have sufficient work for all the men on Monday and that
he had heard "something about that one month for the $500." The conversation
ended with Candelora stating the men would be ready to work on Monday and that
he would see Spector that day.
Prehm, who had worked for the Company 16 years and has been shop steward
for about 12 years, testified he telephoned Clifford Combs at the plant the afternoon
of February 1 and informed him that while the Union and the Company had not
reached agreement they were still negotiating and to instruct the men to report for
work on Monday morning.
Combs corroborated Prelim's testimony concerning their telephone conversation.
Combs further stated that he immediately reported this coversation to Oscar
Spranger , acting foreman , and he and Spranger then went around the plant and
instructed the employees they were to report for work on Monday.
Prehm also testified that on Saturday , February 2 , Kimmel called him to inquire
what had happened at the meeting and he replied that no agreement had been reached
but the men were going to work on Monday.
Neither Spector nor Kimmel were questioned regarding the foregoing conversa-
tions with Candelora and Prehm , respectively.
C. The shutdown
On Monday, February 4, Candelora went to the plant about 7 a in where he met
Prehm and the employees who had reported for work as usual. Spranger, who
opened up the plant, told Candelora and the employees that he had been instructed
not to open the shop that morning, that it was closed down and there was no
work for the employees . Candelora and the employees remained at the plant and
when Kimmel arrived about 7.45, Candelora asked what it was all about. Kimmel
said he was unaware of the shutdown and invited Candelora and Prehm into the office.
As they entered the plant Prehm noticed the timecards had been removed from the
rack. Spector arrived about an hour later and informed Kimmel , Candelora, and
Prehm that he had no work for the employees . Candelora stated he had telephoned
Spector Friday night to inform him the men would report for work on Monday
BODY & TANK CORP. 1419
and that they would continue with their negotiations Candelora then requested
that the employees be put back to work and negotiations be resumed. Spector
said he had no work for the employees and as the Company had "no contract, there
is no work." Spector added he did not know whether he would continue to
fabricate and that he might turn the plant into a warehouse. Kimmel also stated
the Company wanted a contract with the Union and if "there is no contract, no
work." The meeting then ended. Later in the morning the men were permitted
to enter the plant for the purpose of removing their tools and work clothes Prehm
corroborated Candelora's account of their meeting with Spector and Kimmel.
Spector testified, as more fully discussed below, that the plant was shut down
because of "an economic dilemma that was caused by the union," which, seemingly,
affected the Company's ability to secure profitable orders thereby causing a shortage
of work for the plant employees. According to Spector, there was shortage of
work in November 1962, which resulted in a layoff of an undisclosed number of
employees for some unspecified time, but the men were recalled at the request of
Candelora and Prehm. Spector stated that on Friday, February 1, he told Prehm
and 8 or 10 of the men that he was closing down the plant on Monday, February
4, because he did not have enough work for them He then issued instructions to
the men to take such steps as were necessary to effectuate the orderly shutdown of
the plant. Spector admitted this was the first time the plant had been completely
shut down. It is also undisputed this action affected only the employees employed
in the bargaining unit and that some nine employees excluded therefrom continued
to work after February 4.
Spector and Kimmel were not questioned concerning their meeting with Candelora
and Prehm the morning of the shutdown. However, Spector and Kimmel generally
denied making statements of "no contract, no work" to the union representatives or
the employees.
Prehm said that on Thursday and Friday the men were told there was not much
work in the plant. However, he saw no indication the Company was preparing
for a shutdown up to 11:30 Friday morning, when he left the plant to attend the
meeting with Manson.
Both Prehm and Candelora denied they ever threatened the Company with strike
action. Likewise, Spector admitted that at no time during 1962 or 1963 did the
union representatives ever indicate that they would strike the Company.
D. Events subsequent to the shutdown
On February 6, Candelora and Prehm had a brief meeting with Spector and
Kimmel in the course of which they reaffirmed their position in the matter and
repeated, "no contract, no work."
On February 7, Candelora, Tessler, and Prehm, accompanied by Richard A.
Weinmann, union attorney, and Sale, met with Manson at the office of the State
Mediation Board. Candelora and Tessler testified that they requested the Company
to reinstate the employees and continue negotiations but Sale declined their request,
stating the plant would remain closed until the parties had reached an agreement.
Weinmann then told Sale that since the only issue between the parties was the
fourth vacation week the matter should have been resolved without the Company
resorting to a lockout of the employees. Sale asserted the employees were laid off
because of lack of work, not locked out. Weinmann informed Sale that Manson's
proposal for resolving the issue, namely, that the Union absorb the cost of the
fourth week by postponing the effective date of the pay increase, was a reasonable one
and was acceptable to the Union. Weinmann and Sale then discussed the cost of
the fourth week for the four men involved and Weinmann stated that it would
approximate the amount of the pay increase for 1 month. Sale stated the fourth
week was not the only issue, that the Company desired "to equalize vacations across
the board," and change the third vacation week to coincide with the association
contract. Sale thereupon dictated and presented the following proposal to the Union:
1. All employees entitled to vacation benefits in accordance with schedule
under the expired contract would receive similar benefits in the renewed con-
tract, with the understanding that wage increases would be postponed to a
specific time which would provide the equivalent of the vacation costs above the
levels presently in effect in the association contract.
2. All other vacations accuring under the schedule of the expired contract
more favorable than the schedule of vacations in the association contract will
be waived until such time as there is a change in the vacation schedule of the
association contract and when such change is included in a signed association
contract, this change will be included in the Body & Tank contract.
1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Weinmann and the union group expressed the opinion the employees would not
accept the proposal but agreed to submit it to them for their approval or disapproval.
Weinmann complained the proposal indicated "a hardening" of the Company's posi-
tion and while business might be slow at the present time, it might also increase,
so in the light of these considerations the Manson proposal of February 1 should
be adopted. The meeting concluded with Sale agreeing to submit the Manson
proposal to the Company, without recommending its acceptance, and the Union
agreeing to present the above-quoted company proposal to its members.
Sale testified he told the union representatives it was too bad they had not accepted
the Manson proposal and Weinmann remarked if he had been present at that meeting
the Union might have accepted the proposal. Sale also claimed he mentioned his
telephone conversation with Manson on February 1, which Weinmann emphatically
denied Sale said the parties discussed the fourth week as well as the entire vacation
schedule. Manson inquired if Sale could improve the Manson proposal and he re-
plied he could not do so. Manson then asked Sale to dictate his proposal, which
he did in the manner described above. Sale stated the union representatives rejected
this proposal and, apparently, the meeting then ended.
On February 11, the Union filed unfair labor practice charges against the Company.
Combs said he and many of the other men returned to the plant regularly after
the shutdown. He related that on one such occasion, around February 18, he and
three or four men were in a car parked near the plant when Spector joined them.
Spector told the men of conditions in other shops and in the course of his talk
stated "there would be no work if there was no contract signed." Spector did not
deny the foregoing testimony.
On February 19, Candelora and Prehm met with Spector, at his request, in his
office Spector stated he wanted to get the matter straightened out and put the men
back to work and Candelora and Prehm urged him to reinstate the men and resume
negotiations However, Spector said he would have to contact Kimmel and find out
how much work was available and he would then contact Candelora. Seemingly,
the meeting then ended.
The next morning Spector called Candelora but was unable to reach him. That
afternoon Candelora, at Spector's suggestion, telephoned Sale, who stated that he
understood the men were to be put back to work and that the Company would send
the necessary telegrams, "providing you fellows drop the charges." Candelora com-
plained the charges had nothing to do with the reinstatement of the men and asked
that they be reinstated and negotiations be resumed. The conversation concluded
with Candelora stating he would consult with Weinmann and contact the men. Sale
made no mention of this conversation, but he denied that he ever requested that the
charges be withdrawn.
Candelora discussed the matter with Weinmann who advised him that the decision
was up to the men.
The next day, February 21, Candelora and Prehm met with Spector at his office.
Spector said he did not believe the employees were being fully informed of the course
of the negotiations and asked if he could speak to a group of the men who were
gathered outside the plant. Candelora agreed, so about 12 or 14 men, who had been
notified of the meeting, were called into the plant office. Spector spoke to the
group and offered a new agreement and reinstatement of the employees if the Union
dropped the charges. The new agreement, according to Candelora, would run for
2 years, grant the fourth vacation week for 1963, the vacation schedule to then be
renegotiated, and would include two additional holidays. Candelora, Prehm, and
the men held a meeting in Spector's office and, after some discussion of the matter,
decided that another meeting should be held so that all the employees would have
an opportunity to vote on the proposal and whether they would withdraw the
charges. The men agreed to hold a meeting on February 25, and informed Spector
of their decision. Spector agreed to this procedure. Prehm and Combs testified
substantially the same as Candelora regarding the events at this meeting.
Spector was not questioned regarding this meeting, but he generally denied that
he ever offered to return the employees to work if they agreed to drop the charges.
On February 25, Candelora, Tessler, Prehm, and 2 members of the executive
board met with 19 of the employees, at which time Candelora outlined the Com-
pany's proposal, which was rejected. The employees likewise voted against any with-
drawal of the charge. They also changed their original contract proposals by
requesting a 1-year contract, the 10-cent pay increase to be retroactive to February 1,
the date of the new agreement, and two additional holidays. The same day
Candelora telephoned Spector and informed him of what had transpired at the
meeting.
On March 5, Weinmann and the union representatives met with Sale, Spector,
.and Kimmel at Sale's office. Weinmann requested that the men be reinstated and
BODY & TANK CORP. 1421
presented the Union's additional demands which called for a wage increase effective
March 1, plus two extra holidays and a termination date of July 1, 1964, the same
date as contained in the association contract. The Company rejected these pro-
posals. Weinmann then asked why the men could not be returned to work and
Kimmel replied, "no contract, no work, was the position of the company and that
since unions had done that in the past, there was no reason why the company
couldn't do that now." Weinmann further inquired if work was available for the
men, assuming a contract was signed, and Kimmel answered, All of the men can go
back to work tomorrow if the contract is signed." The meeting ended without any
agreement being reached.
Kimmel denied making the "no contract, no work" remark and stated that at
one of the meetings he told the Union "we couldn't get work unless we had a
contract "
Spector denied that he ever told the Union during the negotiations that there was
work in the plant for all of the men.
Sale's version of the meeting was that he told the union group the only issue
involved was the difference in the vacation schedules in the company contract and
association contract and that it was unfair to burden the Company with a more
onerous schedule than enjoyed by its competitors.
The next meeting was held on March 8 at Weinmann's office. Both Weinmann
and Sale stated the discussion at this meeting centered on the contract termination
date, with the Union seeking July 1, 1964, and the Company insisting upon
January 31, 1965, as the expiration date. Weinmann also requested that the em-
ployees be returned to work.
On March 12 the parties met in Sale's office. Weinmann testified that at the
outset of the session he and Sale met privately in Sale's library where they dis-
cussed the situation and they deplored the fact that the plant was closed down.
However, they blamed each other for existing conditions, Weinmann accusing the
Company of locking out the employees and Sale maintaining it was a layoff caused
by the Union. Weinmann and Sale maintained their respective positions through
the period of negotiations In the course of their discussion Sale stated it was
Manson's telephone call, following the meeting of February 1, that caused the
Company to believe the Union would not accept Manson's proposal submitted to
the parties that day. Weinmann was surprised by this assertion and called Candelora
into the library and asked him, in Sale's presence, if he had ever told Manson that
the proposal of February 1 was not acceptable to the Union. Candelora denied
making any such statement to Manson and asserted he simply told Manson at the
meeting that he would submit the proposal to the employees. Tessler was then
called in and related the Manson proposal was treated in the manner described by
Candelora Weinmann then asked why the men had not been recalled and Sale said
the Company had work for only 50 percent of the men and "the other 50% of the
men would be given work if the union showed consideration " Weinmann queried
if that meant signing the Company's proposed contract and Sale answered, "That's
right. No contract, no work " Candelora and Tessler then left and a few minutes
later Weinmann and Sale rejoined the parties who were in Sale's office.
At that point Weinmann asked the company representatives if they would accept
all of the Union's proposals, including the advancement of the pay increase to the
immediate return date of the employees, if the Union agreed to equalize the vacation
schedule. Sale replied that that offer had been considered and was rejected. Kimmel
added there could be no work unless there was a contract. Weinmann thereupon
inquired what work would be provided for the men if the Union signed a contract
and Kimmel said all the men would return to work the day after the contract was
signed, but they could not return until this was done Spector then said he did not
believe the employees wanted to return to work. Tessler declared that if there was
any question regarding the employees' offer to unconditionally return to work, he
was making such an offer at that time. The offer was rejected by Spector.
The union representatives then held a caucus and when they came back to the
meeting Weinmann submitted a proposal which provided that the pay increase be
effective April 30, 1963, that the contract terminate April 30, 1964, that the present
vacation schedule be maintained for 1963, and that the fourth vacation week be
eliminated in 1964. Admittedly, the Union did not offer to equalize the vacation
schedule to accord with the schedule in the association contract. Sale said the pro-
posal was not acceptable. The meeting then ended.
Candelora and Tessler corroborated Weinmann's testimony concerning their
participation in the meeting in the library with Weinmann and Sale, as well as
Weinmann's testimony regarding the Union's proposals which were submitted to the
Company.
1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sale did not specifically mention the meeting of March 12, nor did he testify in
any detail whatever regarding the events at this session. As I understand his
testimony, Sale cited some cases on the subject of lockouts to Weinmann at one of
the meetings and Weinmann agreed this occurred at the meeting of March 12.
Sale also related that at one of the meetings Weinmann stated Sale "went back
on the Manson proposal." Sale said this proposal was rejected by the Union, but
he always agreed to it because "it is my proposal in evidence." Obviously Sale was
referring to his own proposal which he dictated at the meeting with Manson on
February 7 (General Counsel's Exhibit No. 9-A), and not the proposal presented
by Manson at the February 1 meeting. The testimony of Weinmann, Candelora,
and Tessler clearly shows the discussion at the March 12 meeting was devoted to
the Manson proposal of February 1, not Sale's proposal of February 7. Sale con-
cluded his testimony by generally denying that he ever uttered the remark, "No
contract, no work," or that he requested the Union to withdraw its charges as a
condition to the return of the men. He also denied that he ever stated that all the
men could come back to work at one time. Instead, Sale told the union representa-
tives the men could come back as work was available for them.
Neither Spector nor Kimmel testified regarding the events which took place
at the March 12 meeting, other than to deny generally that they ever made the
statement, "No contract, no work."
Weinmann said Sale telephoned him on March 22 and offered to advance the
effective date of the pay raise to June 1 and grant one additional holiday. Wein-
mann told Sale he would submit the offer to the Union. The offer was rejected by
the Union and Weinmann informed Sale of this action.
On April 2, Weinmann and the union group met with Kimmel in Weinmann's
office. Kimmel inquired about Sale's offer of March 22, and Weinmann told him
it had been rejected and Sale had been so notified. The subject of vacations was
then brought up with Weinmann and Kimmel reiterating their positions regarding
the issue on the vacation schedule. In the course of the discussion, which ended
inconclusively, Kimmel said the men would be working if the Union had agreed to
equalize the vacation schedule. Weinmann then stated he had heard some of the
men had been called back to work, without consultation with the Union, and with-
out regard to their seniority. Kimmel said the Company was under no obligation
to return the men in the order of their seniority. Kimmel testified Weinmann stated
he was happy to learn the Company had recalled some of the employees, especially
since they had been returned in the order of their seniority. The meeting ended
without any agreement being reached and no further meetings have been held.
Analysis and Concluding Findings With Respect to the Company's
Refusal To Bargain
Here the refusal to bargain stems from the Company's shutdown of its shop and
the layoff of all the unit employees during the period it was engaging in contract
negotiations with the Union. The initial question to be resolved is whether the
shutdown was prompted by the Company's determination to force the Union to
abandon its proposals and accept the Company's contract terms, as argued by the
General Counsel, or for economic reasons as urged by the Company.
The undisputed facts established by the General Counsel show that, following
timely notice by the Union to terminate the current contract, the parties met on
November 26 and 30, 1962, and January 3 and 8, 1963. It is also undisputed that
at the January 8 meeting the parties reached agreement on substantially all terms
and conditions of employment with the exception of the provision covering vacations.
The General Counsel asserts that the only issue on that subject was the Union's
insistence upon retention of the fourth vacation week, as provided in the existing
agreement On the other hand the Company asserts it not only objected to retaining
the fourth vacation week but also wanted the same vacation schedule contained in the
contract between the Union and the Association, which plainly was more favorable
than its present schedule.
Unquestionably, the parties were in disagreement regarding the fourth vacation
week. However, while that was an important point, I am satisfied it was not the
only issue between the parties. Spector and Kimmel testified the Company insisted
that the vacation schedule be equalized with the schedule in the association contract
and the testimony of Candelora and Tessler was to the effect the Company requested,
or offered , an agreement similar to the association contract.
The next meeting was held with Manson on February 1, the day after the expiration
of the contract . Manson , after learning the respective positions of the parties on
the vacation issue, stated that only four or five employees were eligible for the
fourth vacation week for the coming year and, as the admitted cost of their vacations
BODY & TANK CORP. 1423
would be about $500, he proposed that the Union absorb this sum by postponing
the effective date of the 10-cent wage increase for approximately 1 month. Sale
announced he would recommend the Company accept the proposal and Candelora
and Tessler said they would submit it to the employees for approval or disapproval.
Sale, at Manson's suggestion, telephoned Spector but he was unable to reach him.
The meeting ended with Sale saying he would make further efforts to contact
Spector and advise Manson of the Company's position. After the meeting Candelora,
Tessler, and Prehm went to the union hall where Candelora telephoned Spector
to inform him that the employees would report for work on Monday, February 4,
and that he would submit the Manson proposal to them at that time. Prehm also
telephoned Combs at the shop and instructed him to tell the men to report for work
on Monday morning. Combs carried out these instructions.
In the meantime, Sale, upon arrival at his office that afternoon, found a message
from Manson and when he returned the call Manson stated the Union had rejected
his, Manson's proposal, so there was no need for Sale to contact Spector.
At this point it seems appropriate to consider the situation as of February 1, and
the effect, if any, the Sale-Manson conversation may have had upon the Manson
proposal. The Company, in its brief, simply asserts, "The union's representative
refused Mr. Manson's suggestion." Seemingly, that assertion is based on the Sale-
Manson conversation, which I find wholly inadequate to support such a statement.
On the contrary, the testimony clearly shows the union representatives told Manson
they would submit the proposal to the employees and they made arrangements to
do so the morning of the next workday, which was Monday, February 4. More-
over, Candelora's testimony that he informed Spector, the afternoon of February
1, of the Union's plan to present the proposal to the employees on February 4, stands
undenied. Again, it strikes me as highly unusual that Sale, upon being advised by
Manson of the Union's rejection of the proposal, did not contact the union rep-
resentatives, with whom he was supposedly negotiating, and seek confirmation of
the information in his possession. Instead, Sale waited until the meeting of March
12 before he mentioned his call to Manson on February 1, and when thus apprised
of the substance of the call, both Candelora and Tessler emphatically denied they
ever told Manson his offer was unacceptable to the Union. Further, the record
clearly proves that the union representatives made arrangements for the employees
to vote on this proposal on the morning of February 4, but the Company by shutting
down the shop that very morning precluded any worthwhile discussion or vote upon
the proposal. It may be that there was a complete misundertsanding between Sale
and Manson regarding the Union's position but, whatever the explanation, I am
convinced the union representatives did not reject the proposal as claimed by the
Company. Certainly, in these circumstances it cannot be held that the Manson
proposal had been rejected, or that the parties had reached an impasse on the
vacation provision or that bargaining negotiations had definitely broken off on
February 1. On the contrary, the vacation issue was very much alive and unsettled
during, and at the conclusion of, the meeting with Manson on that date.
But despite the status of negotiations on February 1, Spector, without any notice
whatever to the union representatives, or to Kimmel for that matter, began prepara-
tions for a shutdown sometime the same day and actually shut down the shop and
laid off all the unit employees on the morning of February 4. It is also clear, and
I find, that on this morning Candelora and Prehm met with Spector and Kimmel and
requested the Company to reinstate the employees and to resume bargaining
negotiations, which Spector declined for the reason that as the Company had "no
contract, there is no work."
I have no difficulty in finding and concluding that the General Counsel, on the
basis of the foregoing facts, plainly established a prima facie case of an unlawful
lockout on the part of the Company, so the burden of going forward with evidence
to justify the shutdown or lockout rseted upon the Company.
Spector gave rambling and vague explanations for the cause of the shutdown in
the course of which he attributed this action to the difficulty in obtaining orders
clue to competitive conditions in the industry and the lack of sufficient work for the
unit employees. In respect to the work shortage, Spector said that in order for
the plant to operate on a "break-even" point or basis, it was essential that the 25
employees perform 1,000 or 1,200 man-hours of work per week. On direct examina-
tion he stated that during October, November, and December, 1962, only about 750
man-hours per week were available, but on cross-examination he said the Company
was operating at the break-even point throughout the year of 1962. Spector also
related that on or about February 1, only 1,000 man-hours were available, although
the Company had orders on hand for 2,000 man-hours of work, part of which was
in production but most of it at the blueprint stage.
1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As I understand Spector's testimony, the Company experienced difficulty in obtain-
ing orders in October, November, and December, due to competitive conditions in
the industry, and as the current agreement with the Union terminated January 31,
he wanted a new agreement as quickly as possible, which apparently would put the
Company in a better position to secure orders. Kimmel's testimony followed the
same general theme, in fact Kimmel said on many occasions he told the Union, "we
couldn't get work unless we had a contract." Concerning orders, Kimmel testified
that in the period from about March 8 or 10 to April 20, 1963, which was a repre-
sentative period. the Company received invitations from general contractors to bid
on some 17 project, which included the construction of a police station, a hospital,
and a college faculty residence.2 Kimmel admitted the Company did not submit
bids to the general contractors because "we don't like the way they do business."
However, he claimed the Company did not refuse any profitable orders. Kimmel
further stated that in the period about February 1 to March 8, the Company
responded to some invitations to bid, but he could not recall the number thereof
or the projects without checking the Company's records.
Kimmel also testified that, following negotiations commencing in November 1962,
the Gotham Sand and Stone Company placed an order with the Company on
January 14, which was confirmed on January 21, for the manufacture of three sand
hoppers, at a cost of $7,200, which were to be delivered March 1, 1963. Ad-
mittedly, the Company made no attempt whatever to process this order and it
was canceled by the customer on March 18 The correspondence between the
Company and the customer (General Counsel's Exhibit No 13) seems to indicate
the Company was unable to fulfill the order because its employees were on strike
and it did not know when it might resume operations
I am satisfied, from the entire record, that work may have slackened off in the
period October through January However, it is equally clear that the Company
maintained its entire shop force of 25 employees throughout this period, except for
a brief layoff of some men during November, which, to me, refutes the idea that the
shortage of work had reached such proportions as to create a serious financial prob-
lem. It strikes me that if conditions at the plant were such that the Company
could not economically afford to continue operations it could have easily produced
records to sustain its position. No such records were produced. Instead the
Company relied upon the testimony of Spector and Kimmel which I find to be
neither persuasive nor convincing. Moreover, Spector's testimony demonstrates the
the sudden shutdown was not prompted by any lack of work or orders. Thus, on
cross-examination Spector testified as follows:
Q And the reason you say that you laid the people off on February 4 was
that you couldn't break even with the work you have, is that correct?
A. That's wrong. That's not correct. I never said that.
Q. Well, then, was it this, that you had not been breaking even for some
time, is that right?
A. I never said that.
Q. Why did you lay them off?
A Because of an economic dilemma that was caused by the union.
Q. Then it had nothing to do with this break-even point?
A. Yes, it has indirectly to do with the break-even point.
Continuing, Spector explained the present economic dilemma stemmed from a strike
called by the Union in November 1961, which lasted 2 or 3 weeks, during which
time the Company was unable to make deliveries thereby impairing its relationship
with customers.3
2 The bid invitations were produced at the hearing pursuant to a subpena ducea tecum
served by the General Counsel calling for the production of such data for the period
October 1, 1962, to date Sale explained the Company does not maintain a permanent
file of such invitations, that they are thrown away, and the only invitations still in the
Company's possession were those produced at the hearing
'The strike occurred under the following circumstances According to Spector, the
Company had an agreement with the Union which expired June 30, 1961 The Company
continued to work under the expired contract and, apparently, no contract negotiations
were held until about October and Spector could not recall whether the parties reached
agreement on terms for a new contract at that time Meantime, the employees continued
to work until November when, without any advance notice, they went on strike, which
was settled about November 29, when the Company tendered to the Union its welfare pay-
ments for July, August, September, and October. The Company then resumed negotiations
and on March 22, 1962, they signed an agreement, effective from July 1, 1961, to Janu-
ary 31, 1963. There is no evidence of any work stoppage since November 1961.
BODY & TANK CORP. 1425
Candelora and Prehm denied the Union ever threatened the Company with strike
action and Spector conceded that at no time during the negotiations in 1962 and
1963 did the union representatives ever indicate they would strike the Company.
The explanations for the shutdown advanced by Spector and Kimmel are not only
flimsy and weak but confusing and highly implausible. Thus, Spector's testimony
that his fear of a strike prompted him to act swiftly and shut down the shop was
squarely contradicted by his own admission that at no time did the Union ever
indicate, much less threaten, that it was contemplating any strike action against the
Company. Again, Spector's assertion that his tear of a work stoppage in January
or February 1963 was attributable to the Union's quick, but lawful, strike in
November 1961, is simply incredible and unbelievable. Of course, Spector was
doing nothing more than advancing subjective reasons for his acts and conduct for
which there was no foundation whatever. Surely, if he had any real cause to believe
the Union planned to call a strike he would have mentioned the subject to the
Union and, at least, requested assurance of an orderly shutdown of operations, if
such procedure was necessary. Instead, Spector elected to summarily shut down
the shop without prior notice to the union representatives or his plant manager.
In these circumstances, I am convinced Spector's imaginary fear of a strike was
strictly an afterthought and a pretext for shutting down the plant so he could secure
more favorable contract terms from the Union.
Equally without substance or merit is the claim that lack of work was a factor
in Spector's decision to cease all shop operations. I realize work may have been
slack in January and the Company might have been justified in laying off some of
its employees. However, Spector did not attempt to remedy this situation by an
orderly reduction-in-force program, so that point is not an issue in the case. Here,
we have a situation where some 25 employees were regularly employed from
December to February 1, and who had every reasonable expectation of continued
employment, suddenly found themselves locked out of the plant and laid off the
next workday, February 4, without any previous warning whatever. Certainly, it
would be difficult to justify such precipitate action on the ground of economic
necessity and, as might be expected, the Company was unable to come up with any
worthwhile evidence to sustain its position. As already noted, the Company pro-
duced no records showing the number of orders on hand, the number of man-hours
of work available, or the man-hours actually worked prior to the shutdown. In
fact, the testimony of Spector and Kimmel, which was devoted primarily to a
somewhat confusing discourse of the subject of the "break-even point," not only
failed to show a substantial decrease in business during January, but clearly proved
the Company took no steps to process a $7,200 order it received on January 15, and
further warrants the inference that the Company declined invitations to bid on many
projects at a time it was supposedly suffering from a lack of orders. I find the Com-
pany did not shut down the shop and lay off the employees for economic reasons
but to force the Union to accept its contract terms.
Nor is there any evidence indicating the Company altered its position of "no
contract, no work" in the many meetings with the Union subsequent to the lock-
out. On the contrary the Company stiffened its demands during this period. The
witness produced by the General Counsel described the events occurring after
the lockout in a clear, consistent, and convincing manner while the witnesses for
the Company, following the same pattern adopted in respect to explanations for the
lockout, relied primarily upon sweeping statements and general denials of the Gen-
eral Counsel's testimony. Accordingly, in evaluating the testimony set forth above,
I base my credibility findings, at least in part, upon the demeanor of the witness as
I observed it at the time the testimony was given.4 Considering the evidence in the
light of the foregoing observations, I find as follows:
On February 6, Spector and Kimmel reiterated their position of "no contract,
no work," to Candelora and Prehm.
On February 7, the parties met with Manson at which time Sale presented a
proposal regarding vacations (supra) which was much stronger than Manson's pro-
posal of February 1. This meeting ended with counsel agreeing to submit the
proposal to the Company and the employees, respectively.
On February 18, Spector repeated his position of "no contract, no work" to
Combs and three or four other employees.
4 Cf Bryan Brothers Packing Company, 129 NLRB 285 To the extent that I indicate
hereafter that I reject in part or entirely the testimony of any given witness, it is my
intent thereby to indicate that such part or whole of the testimony, as the case may be is
discredited by me. Jackson Maintenance Corporation, 126 NLRB 115, footnote 1.
1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On February 19, Candelora and Prelim requested Spector to reinstate the em-
ployees and resume negotiations . Spector 's reply was that he wanted the matter
resolved but he would have to find out how much work was available.
On February 20, Candelora had a telephone conversation with Sale, the gist of
it being that the Company would return the employees to work provided the Union
would drop the unfair labor practice charges which were filed on February 11.
Candelora expressed disapproval of such 'an arrangement , but promised to discuss
the proposition with Weinmann and the employees.
On February 21, Spector, with the permission of Candelora and Prelim, spoke
to about 12 employees in the plant office at which time he offered terms for a new
agreement and the reemployment of the men , provided the Union dropped its
unfair labor practice charges. The union group discussed the offer and decided to
present it to the employees for approval or disapproval at a meeting to be held on
February 25, which was satisfactory to Spector.
On February 25, Candelora , and other representatives , submitted the Company's
offer to some 19 employees who voted against acceptance of the contract terms
and the withdrawal of the charge . The employees also decided to change their
original demands made upon the Company . The same day Candelora informed
Spector of what had transpired at the meeting.
The next meeting between the parties took place on March 5, at which time the
Company rejected the Union 's new proposals In answer to the Union 's request for
reinstatement , the Company reaffirmed its stand of "no contract , no work."
On March 8 , the parties again met and discussed contract termination dates but
were unable to reach any agreement.
The next meeting was held on March 12 . In a preliminary , private meeting
between Sale and Weinmann , each blamed the other for the shutdown or lockout.
Sale, as mentioned above, also claimed the Union had rejected Manson 's proposal on
February 1, which Weinmann , Candelora , and Tessler denied, and some time was
spent discussing that subject . Weinmann then inquired why the Company had
refused to reemploy the men and Sale replied that while the Company had work
for only 50 percent of the employees "the other 50% of the men would be given
work if the union showed consideration ." When Weinmann asked if that meant
signing the Company's proposed contract Sale answered , "That 's right. No con-
tract , no work ." The preliminary conference then ended.
At the meeting of the parties Weinmann inquired if the Company would accept
the Union 's proposed contract, provided the Union agreed to equalize the vacation
schedule, and Sale said this was not acceptable to the Company . Kimmel added
there could be no work unless there was a contract and that the employees would
be returned to work the day after the contract was signed. The union representa-
tives , following a caucus, proposed , inter alia, that the present vacation schedule be
retained for 1963 and that the fourth vacation week be eliminated in 1964 How-
ever , the Union did not offer to equalize the vacation schedule to accord with
the schedule in the association contract . The proposal was rejected by the Com-
pany and the meeting ended.
On March 22 , Sale telephoned Weinmann and offered to advance the effective
date of the pay raise and to grant one additional holiday. The Union declined the
offer and Weinmann advised Sale of its rejection.
The final meeting between the parties took place on April 2, at which time they
referred briefly to the March 22 offer and then discussed vacations . However, the
parties merely maintained their previously announced positions on that subject and
the meeting ended without any agreement being reached.
In view of the foregoing findings, I further find and conclude that the Company,
on February 4, locked out and laid off its shop employees to strengthen its bar-
gaining position and to compel the Union to accept its contract terms. Thereafter,
the Company adamantly maintained its position throughout the bargaining sessions
and, in response to the Union 's repeated requests for reinstatement of the employees,
offered to return the employees to work, provided the Union and the employees
agreed to accept its contract proposals , and subsequent to February 11, that they
withdraw the unfair labor practice charges. Manifestly , such conduct not only
subjected the Union and the employees to illegal pressure during the bargaining
negotiations but, also, constituted discrimination in regard to the hire and tenure
of employment of the unit employees as well as interference , restraint , and coercion
in the exercise of their rights guaranteed under the Act.
Under similar , though less compelling, circumstances , the Board in the Quaker
State Oil Refining case , clearly stated: 5
5 Quaker State Oil Refining Corporation . 121 NLRR 334, 337. enfd 270 F 2d 40
(CA 3). See also Esti Nexdeiman and Gs ela Eisner, co-partners doing business as Star
BODY & TANK CORP. 1427
The Board has held that, absent special circumstances, an employer may not
during bargaining negotiations either threaten to lock out or lock out his em-
ployes in aid of his bargaining position. Such conduct the Board has held
presumptively infringes upon the collective-bargaining rights of employees in
violation of Section 8(a) (1) and the lockout, with its consequent layoff, amounts
to discrimination within the meaning of Section 8(a)(3). In addition, the
Board has held that such conduct subjects the Union and the employees it rep-
resents to unwarranted and illegal pressure and creates an atmosphere in which
the free opportunity for negotiation contemplated by Section 8(a) (5) does not
exist.
The Company, in its brief, cites Betts Cadillac Olds, Inc., 96 NLRB 268, Inter-
national Shoe Company, 93 NLRB 907, and Duluth Bottling Association, et al.,
48 NLRB 1335, as authority for the proposition that if the lockout is caused by
economic hardship, it is not unlawful. It is sufficient to say that the Board discussed
and distinguished these cases in its decision in American Brake Shoe Company,
Ramapo Ajax Division, supra.
Finally, assuming the Company had decided to close down its shop for valid
reasons upon the expiration of its agreement, it was, nevertheless, obligated to
bargain with the Union concerning the shutdown or, at least, to notify the Union
of its contemplated action and afford it an opportunity to bargain thereon, if it so
desired. Surely, the lockout and layoff of all the employees in the bargaining
unit vitally affected the wages, hours, and terms and conditions of employment
of these employees, consequently the shutdown, with the ensuing layoff, was a
mandatory subject for bargaining. Of course, it is now well recognized that an
employer must bargain, on request, with respect to whether to effect an economic
layoff and, if a layoff is to take place, who is to be affected thereby.6 Here the
record conclusively proves the Company completely ignored the Union in reaching
and carrying out its decision to shut down the shop and lay off the employees, there-
fore, the Company clearly violated its statutory duty to bargain with exclusive rep-
resentatives of its employees in respect to such matters.
Accordingly, I find and conclude that by shutting down its shop and locking
out the employees in the manner found herein, the Company violated Section 8(a) (5),
(3),and (1) of the Act.7
Analysis and Concluding Findings With Respect to the Recall of Employees
While the evidence regarding the recall of employees is sketchy and fragmentary
there is no doubt the Company did recall some seven employees at various times in
March or April. The testimony of Weinmann and Kimmel reveals that the fact
that the Company had recalled some of the men was first mentioned at the meeting
of April 2, although they gave different versions of the conversation on that subject.
The General Counsel contends that the Company unilaterally changed conditions
of employment with respect to the order for recalling employees on layoff status,
without discussing the change with the Union, or affording it an opportunity to
bargain thereon.8
In brief, the General Counsel argues that by failing to recall Prelim, Combs, and
Lucio Peruzza, the Company disregarded its recall procedure based on seniority,
as established in the expired contract. The Company takes the position that it
followed contract procedure and that the employees were recalled in the order
of their seniority in their job classifications as needed, except for Peruzza. The
Baby Co., 140 NLRB 678; Sidele Fashions, Inc.; et al, 133 NLRB 547; St Cloud Foundry
& Machine Company, Inc., 130 NLRB 911; Dalton Brick & Tile Corporation, 126 NLRB
473, enforcement denied 301 F. 2d 886 (C A 5; Utah Plumbing and Heating Contractors
Association and its Members, 126 NLRB 973, enfd. 294 F 2d 165 (CA. 10) ; American
Brake Shoe Company, Ramapo Ajax Division, 116 NLRB 820, enfd 244 F 2d 489 (C A. 7).
B Fibreboard Paper Products Corporation, 138 NLRB 550, and cases cited therein, enfd.
322 F. 2d 411 (CAD C ), decided July 3, 1963.
7I find no evidence to support the Company's argument that the Union engaged in stall-
ing or dilatory tactics, or refused to bargain in good faith, either prior or subsequent to
the lockout.
8 As already stated, I granted the General Counsel's motion to amend the complaint to
allege such conduct as a violation of Section 8(a) (5), (3), and (1) of the Act. While
counsel for the Company opposed the motion, he did not request additional time to prepare
his case with respect to the amendment.
727-083-64-vol. 144-91
1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
expired agreement provided for seniority in job classifications and the Company
conceded layoffs and recalls were made in that order.
According to Kimmel, Foreman Spranger ( a union member ) was the first man to
be recalled , followed by Paul Butera, maintenance man, who looked after he
machinery and equipment . Thereafter, Otto Witte and Frank Woerful , fitters, were
recalled about the second week in April , and Sal Massiello, a fitter, was recalled
about a week later. It is also apparent from Kimmel 's testimony that Edward or
Earl Smith , a layout man, was recalled on some unspecified date. By April 26, the
Company had some seven employees working in the shop.
Prehm was employed as a crane operator , truckdriver , and cutting angles and,
under the expired contract , as shop steward he had seniority over "all other em-
ployees holding the same classification ." Prehm worked but 2 days after the
lockout, about April 12 and 17.
Peruzza, a fitter, had greater seniority than Witte , Woerful , and Massiello, but he
was not notified to report for work until April 24. Kimmel said the Company,
around the first week in April, discovered that Peruzza had turned out some de-
fective or spoiled work and he did not recall him until after an investigation to
determine the cost of the error and the responsibility therefor had been com-
pleted. Peruzza said he had heard the Company was accusing him of turning out
some bad work , but none of the company officials had ever brought it to his attention,
nor was he ever told that this was the reason for not being recalled to work.
Peruzza further stated he had never been laid off for poor work in the past and
he could not recall any employee ever being laid off because of defective work pend-
ing an investigation thereof by the Company.
Combs, a layout man and all around mechanic, was not recalled although he had
greater seniority than Smith . Kimmel related that for the past year or so Combs,
due to an old back injury , had performed very little work on large or heavy layouts
and spent only about 10 percent of his time on such layouts. Consequently, when
the Company needed a layout man it recalled Smith who was able to handle both
large and small layouts Combs , on rebuttal , stated he had sustained a back
injury many years previously but he could perform both large and small layout work.
However, he admitted he had spent only about 25 percent of his time in the past
year or so on large layouts.
I have no difficulty in finding and concluding , for the reasons stated above, that
the Company , in bypassing the Union and unilaterally recalling the employees to
work, thereby failed and refused to bargain collectively with the Union in violation
of Section 8 (a) (5) and ( 1) of the Act.
However , I do not consider the evidence sufficient to sustain an independent or
supplemental finding of illegal discrimination against Prehm, Peruzza , and Combs.
Here , it must be noted, the discrimination is not bottomed on the selection of non-
union employees over union employees , for they were all members of the Union,
but on the Company 's alleged failure to follow job seniority . As I view the situa-
von, the Company was entitled to select which job classifications were necessary to
commence operations and to then follow seniority within the particular classifi-
cations Prelim's case presents no problem whatever , for the reason that there is
no evidence the Company reemployed anyone or needed anyone in his job classi-
fication prior to the time or times that it temporarily recalled Prehm. Peruzza was
passed over allegedly because of bad work but while his case may be suspicious, I
do not believe the testimony warrants a finding that the Company was motivated
by illegal considerations in selecting the three other fitters in preference to Peruzza.
The evidence shows that in the past Combs had spent but a small percentage of his
time on large layouts, so when the Company needed a man to handle this type
of layout it selected a junior man, Smith I cannot say that this selection was so
unreasonable as to infer unlawful motivation on the part of the Company.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company set forth in section III, above , occurring in connec-
tion with the operations of the Company described in section I, above , have a close,
intimate , and substantial relation to trade , traffic, and commerce among the several
States , and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that it cease and desist therefrom and take certain affirmative
action which I find necessary to effectuate the policies of the Act.
BODY & TANK CORP. 1429
I have found that on February 4, 1963 , the Respondent , in order to strengthen
its bargaining position , unilaterally shut down its shop operations and locked out
and laid off all the employees in the bargaining unit, in violation of Section 8(a) (5),
(3), and (1) of the Act. I have further found that in March or April 1963, the
Respondent by resuming limited shop operations and recalling some of the employ-
ees. without prior notification to the Union , or bargaining with the Union , thereby
violated Section 8(a)(5) and ( 1) of the Act . I shall, therefore , recommend that
the Respondent cease and desist from locking out, or continuing to lock out, its
employees to aid its bargaining position or making unilateral changes in the terms
and conditions of employment without consulting their designated bargaining agent.
The nature of the violations found herein require the same type of remedy as pre-
scribed by the Board in the Fibreboard case, supra . Accordingly, on the basis of the
rationale so clearly stated in that case, I recommend that the Respondent restore the
status quo ante, February 1, 1963, by resuming its shop operations and fulfilling its
statutory obligation to bargain with the Union . Where that obligation has been
satisfiedy after the resumption of bargaining , the Respondent may, of course, if
economic conditions warrant, initiate a nondiscriminatory layoff program among its
shop employees.
I further recommend that the Respondent offer reinstatement to all the shop
employees , except as noted below , to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights and privileges . I do not
consider Daniel Prehm, who worked 2 separate days, as having been fully reinstated,
so I include him in the above category of employees to be offered reinstatement.
However, since the Respondent has already reinstated Oscar Spranger , Paul Butera,
Otto Witte, Frank Woerful, Sal Massiello, and Edward or Earl Smith , and there is
nothing to indicate they are not presently working, I shall not recommend the
Respondent make further offers of teinstatement to these employees.
I further recommend that the Respondent make whole the shop employees for any
loss of earnings they may have suffered as a result of the Respondent 's unlawful
action in locking them out of the shop on February 4, 1963, to the date of the
Respondent 's offer to reinstate them, or the date of their actual reinstatement.
Backpay shall be based upon the earnings they normally would have received from
the date of the discrimination to the date of the offer of reinstatement , or reinstate-
ment, and shall be computed in accordance with the formula in F. W . Wooln orth
Company , 90 NLRB 289, and shall include the payment of interest at the rate of
6 percent per annum as provided in Isis Plumbing & Heating Co ., 138 NLRB 716.
I also recommend that the Respondent cease and desist from offering to reinstate
its employees , provided the employees and the Union agree to accept its contract
terms and to withdraw the pending unfair labor practice charges.
I further recommend that the Board reserve to itself the right to modify the back-
pay and reinstatement provisions of the Recommended Order, if made necessary by
circumstances not now apparent.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF L,\w
1. Body & Tank Corp . is engaged in commerce within the meaning of Section
2(6) and ( 7) of the Act.
2. Local 455, International Association of Bridge . Structural & Ornamental Iron
Workers. AFL-CIO, is a labor organization as defined in Section 2(5) of the Act.
3. All employees, engaged in the fabrication of ferrous and nonferrous metals,
iron, steel and metal products . or steadily engaged in maintaining production machines
and equipment in or about the Company 's shop, employed by the Coinpaiiy at its
plant, exclusive of clericals , superintendents , nonworking foremen , and all supervi-
sors as defined in Section 2(11) of the Act, constitute a unit appropriate for the
purpose of collective bargaining within the meaning of Section 9(b) of the Act.
4. The Union at all times material herein has been , and now is , the exclusive
representative of all employees in the aforesaid appropriate unit for the purposes
of collective bargaining within the meaning of Section 9(b) of the Act.
5. By shutting down its shop and locking out and laying off all its shop employees
in the manner found herein , the Respondent violated Section 8 ( a)(5), (3), and (1)
of the Act.
6. By unilaterally changing the terms and conditions of employment of its shop
employees in the manner found herein, the Respondent violated Section 8(a) (5) and
(1) of the Act.
7. By engaging in such acts the Respondent thereby interfered with , restrained,
and coerced its employees in the exercise of the rights guaranteed them in Section
7 of the Act, in violation of Section 8(a)(1) thereof.
1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and 7) of the Act.
9. The Respondent by failing to recall Daniel Prelim, Clifford G. Combs, and
Lucio Peruzza in March or April 1963, did not thereby independently discriminate
against them in violation of Section 8(a)(3) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and pur-
suant to Section 10(c) of the Act, I recommend that the Respondent, Body & Tank
Corp ., its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Local 455, International Association of
Bridge, Structural & Ornamental Iron Workers, AFL-CIO, as the exclusive rep-
resentative of all the employees in the appropriate unit set forth below with respect
to wages, hours, and other terms and conditions of employment; and from unilaterally
changing the wages, hours, and other terms and conditions of employment of unit
employees without prior bargaining with the above-named Union.
(b) Discouraging membership in the above-named labor organization, or any
other labor organization of its employees, by discriminatorily locking out and laying
off its employees, or by discriminating in any other manner in regard to their hire or
tenure of employment or any term or condition of employment, except to the extent
permitted in Section 8(a) (3) of the Act.
(c) Shutting down its shop operations and locking out and laying off its em-
ployees in order to force them and their bargaining representative to give up their
barganing demands and accept the Respondent's contract proposals without further
bargaining.
(d) Offering reinstatement to its employees conditioned upon acceptance of its
contract terms and withdrawal of the pending unfair labor practice charges.
(e) In any other manner interfering with, restraining, or coercing employees in
the exercise of their rights to self-organization, to form labor organizations, to join
or assist the above-named Union, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or protection,
and to refrain from any and all such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8(a)(3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
2 Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Resume its shop operations , and offer to those employees immediate and full
reinstatement to their former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, and make them whole for any loss
of pay suffered by them in the manner set forth in the section entitled "The Remedy."
(b) Upon request, bargain collectively with Local 455, International Association of
Bridge, Structural & Ornamental Iron Workers, AFL-CIO, as the exclusive rep-
resentative of all employees in the appropriate unit, and, if an understanding is
reached, embody such understanding in a signed agreement. The appropriate bar-
gaining unit is:
All employees engaged in the fabrication of ferrous and nonferrous metals,
iron, steel and metal products, or steadily engaged in maintaining production
machines and equipment in or about the Company's shop, employed by the
Company at its plant, exclusive of clericals, superintendents, nonworking fore-
men, and all supervisors as defined in Section 2(11) of the Act.
(c) Preserve and, upon request, make available to the Board and its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary or useful to
determine the amount of backpay due and the rights of reinstatement under the terms
of this Recommended Order.
(d) Post at its plant, copies of the attached notice marked "Appendix." 9 Copies
e If this Recommended Order is adopted by the Board, the words "A Decision and Order"
shall be substituted for the words "The Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by a decree of a United
States Court of Appeals, the words "A Decree of the United States Court of Appeals,
Enforcing an Order" shall be substituted for the words "A Decision and Order."
BODY & TANK CORP. 1431
of said notice, to be furs shed by the Regional Director for the Second Region,
shall, after being duly signed by the Respondent's representative, be posted by the
Respondent immediately upon receipt thereof, and be maintained by it for a period
of 60 consecutive days thereafter, in conspicuous places, including all places where
notices to employees are cpstomarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered, defaced, or covered by any
other material.
(e) Notify the said Regional Director, in writing, within 20 days from the date
of the receipt of this Intermediate Report and Recommended Order, what steps the
Respondent has taken to,comply herewith.'°
It is further recommended that unless on or before 20 days from the date of the
receipt of this Intermediate Report and Recommended Order, the Respondent notifies
said Regional Director in writing that it will comply with the above recommenda-
tions, the National Labor Relations Board issue an order requiring it to take such
action.
It is recommended that the complaint as amended be dismissed insofar as alleges
that the Respondent discriminatorily failed to recall Daniel Prelim, Clifford G.
Combs, and Lucio Peruzza in March or April 1963.
It is further recommended that the Board reserve to itself the right to modify the
backpay and reinstatement provisions of the Recommended Order if made necessary
by circumstances not now apparent.
"In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with Local 455, International
Association of Bridge, Structural & Ornamental Iron Workers, AFL-CIO, as
the exclusive representative of our employees in the appropriate unit.
WE WILL NOT unilaterally make changes in the wages, hours, and other terms
and conditions of employment for the employees in the appropriate unit without
prior bargaining with the above-named Union.
WE WILL NOT discourage membership in the above-named labor organization,
or any other labor organization of our employees, by discriminatorily locking
out and laying off our employees, or by discriminating in any other manner in
regard to their hire or tenure of employment or any term or condition of
employment, except to the extent permitted in Section 8(a)(3) of the Act.
WE WILL NOT shut down our shop operations and lock out and lay off our
shop employees in order to force them or their bargaining representative to
give up their bargaining demands and accept our contract proposals without
further bargaining.
WE WILL NOT condition our offer of reinstatement to our employees upon
acceptance of our contract terms or withdrawal of the pending unfair labor
practice charges.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their rights to self-organization, to form labor
organizations, to join or assist the above-named Union, or any other labor or-
ganization, to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any and all such activities,
except to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as author-
ized in Section 8(a)(3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
WE WILL resume our shop operations and offer to all employees employed
therein on or about February 1, 1963, immediate and full reinstatement to their
former or substantially equivalent positions , without prejudice to their seniority
or other rights and privileges. As we have already reinstated Oscar Spranger,
Paul Butera, Otto Witte, Frank Woerful , Sal Massiello , and Edward or Earl
Smith, we are not required to make additional offers of reinstatement to these
employees.
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL make whole our shop employees for any loss of pay suffered by
them as a result of our lockout and layoff , from the date of the lockout,
February 4, 1963, to the date of our offer of reinstatement , or the date of actual
reinstatement.
WE WILL, upon request, bargain collectively with Local 455, International
Association of Bridge , Structural & Ornamental Iron Workers , AFL-CIO, in
the following unit of our employees with respect to wages, hours, and other
terms and conditions of employment , and, if an understanding is reached,
embody such understanding in a signed agreement:
All employees engaged in the fabrication of ferrous and nonferrous
metals, iron , steel , and metal products , or steadily engaged in maintaining
production machines and equipment in or about the Company's shop,
employed by the Company at its plant, exclusive of clericals , superintend-
ents, nonworking foremen , and all supervisors as defined in Section 2(11)
of the Act.
BODY & TANK CORP.,
Employer.
Dated-- ----------------- By-------------------------------------------
(Representative ) ( Title)
NOTE.-We will notify any of the above-named employees presently serving in
the Armed Forces of the United States of their right to full reinstatement upon
application in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948 , as amended, after discharge from the Armed
Forces.
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.
Employees may communicate directly with the Board's Regional Office, 745 Fifth
Avenue, New York 22, New York , Telephone No. Plaza 1-5500, if they have any
questions concerning this notice or compliance with its provisions.
International Longshoremen 's and Warehousemen 's Union and
International Longshoremen 's and Warehousemen 's Union,
Local No. 19 [American Mail Line, Ltd . and Mobile Crane
Company] and J. Duane Vance , Attorney. Case No. 19-CD-53.
November 8, 1963
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the National Labor
Relations Act, following the filing of charges under Section 8(b)
(4) (D). The charges as amended alleged that on or about September
6, 1960, International Longshoremen's and Warehousemen's Union
and its Local No. 19 (herein called Respondents) caused a strike of
employees of American Mail Line, Ltd., to force American Mail Line
and/or Mobile Crane Company to assign certain crane-operating work
to longshoremen or members of Respondents rather than to members
of International Union of Operating Engineers, Local 302.1
I International Union of Operating Engineers , Local 302 ( herein also called Operating
Engineers ), was permitted to intervene and participate In the hearing . Also appearing
as employer parties to the dispute were American Mail Line, Ltd, Pacific Maritime Asso-
ciation, and Waterfront Employers of Washington , described more fully hereinafter.
Mobile Crane Company did not enter an appearance.
144 NLRB No. 138.