Bush Hog, Inc.

National Labor Relations Board - Board Decisions

Jun 19, 1969

176 N.L.R.B. 815 (N.L.R.B. 1969)

BUSH HOG, INC.
Bush Hog, Inc . and Roy D. Chance and United
Steelworkers of America, AFL-CIO. Cases
15-CA-3380 and 15-CA-3380-2
June 19, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On February 27, 1969, Trial Examiner Joseph I.
Nachman issued his Decision in the above-entitled
proceeding , finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended , and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. The Trial Examiner also found
that Respondent had not engaged in other unfair
labor practices alleged in the complaint and
recommended dismissal as to them. Thereafter, the
United Steelworkers of America, AFL-CIO, filed
exceptions to the Trial Examiner's Decision, the
General Counsel filed exceptions and a supporting
brief, and the Respondent filed a brief in answer to
exceptions.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers ' in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner ' s Decision , the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions , and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Bush Hog, Inc.,
Selma, Alabama , its officers , agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.
'Resent has not excepted to the Trial Examiner 's findings of 8(aX5)
violations.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOSEPH I. NACHMAN, Trial Examiner : This case tried
before me at Selma, Alabama , on December 3, 4, and 5,'
815
on a consolidated complaint pursuant to Section 10(b) of
the National Labor Relations Act, as amended,' herein
called the Act. The complaint, as orally amended at the
hearing, alleges that Bush Hog, Inc. (herein called
Respondent .or Company), violated Section 8(a)(1) of the
Act by interfering with, restraining, and coercing its
employees in the exercise of rights guaranteed by Section
7 of the Act; violated Section 8(a)(5) and (1) of the Act by
changing the wages and other terms and conditions of
employment of its employees in an appropriate unit
without consulting with United Steelworkers of America,
AFL-CIO, (herein called the Union), the duly certified
collective-bargaining representative of said employees, and
violated Section 8(a)(3) and (1) of the Act by discharging
and refusing to reinstate its employee Roy D. Chance
because of his membership in, assistance to and support of
the Union. The complaint further alleges that on August
30, certain employees of Respondent went on strike to
protest Respondent's alleged unfair labor practices, that
said strike, which was continuing at the time of the
hearing, was caused and prolonged by said unfair labor
practices. Respondent, although admitting certain
allegations of the complaint, denied the commission of
any unfair labor practice, and contended that the strike
was solely economic. For reasons hereafter stated, I find
and conclude (1) that the alleged independent interference
with the Section 7 rights of employees has not been
established; (2) that Chance was discharged for cause; (3)
that the unilateral changes in the wages and other terms
and conditions of employment constituted a refusal to
bargain with the certified representative of the employees,
violative of Section 8(a)(5) and (1) of the Act; and (4) that
the strike of Respondent's employees was caused by
Respondent's refusal to recognize and bargain with the
Union, entitling the striking employees to the usual
protective order.
At the hearing the parties were represented by their
respective counsel, and were afforded full opportunity to
examine and cross-examine witnesses, to introduce
relevant evidence, to argue orally on the record, and to
submit briefs. Oral argument was waived. Briefs submitted
by the respective parties have been duly considered.
Upon the entire record in the case,3 including my
observation of the demeanor of the witnesses, I make the
following:
FINDINGS OF FACT'
1. THE UNFAIR LABOR PRACTICES ALLEGED
A. Background
Respondent's labor relations have been the subject of
litigation before both Board and courts. In Bush Hog,
'motes are 1968 , unless otherwise indicated.
'Issued October 17, on charges filed August 29 and September 4.
'On February 10, 1969 , 1 issued and served upon all parties an Order To
Show Cause why the record should not be corrected in specified respects.
Respondent's reply to said order , concedes that all corrections referred to
are proper and should be made . No other response to my order has been
received . Deeming the corrections referred to necessary to correctly reflect
the proceedings and the testimony of the witnesses, the record is now
corrected in all respects set forth in my aforesaid Order which I now direct
be made a part of the record in this case.
'No issues of commerce or labor organization is presented . The facts
necessary to establish these jurisdictional elements were stipulated by the
parties, or have been admitted by the pleadings. Moreover, the Board has
heretofore made those findings. See Bush Hog, Inc, 173 NLRB No 74.
176 NLRB No. 112
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Inc., 161 NLRB 1575, a proceeding growing out of an
organizational campaign by a local of the Teamster's
Union , the Board found that in violation of Section
8(a)(1) of the Act, Respondent interrogated employees,
threatened them with reprisal , promised or granted them
benefits , told employees that employment policies with
respect to race would depend on whether or not they
designated the Union, that if the employees chose Union
representation , Respondent would suspend or curtail
operations, that strikes and violence would occur, and that
it would use force to prevent or end any legal strike or
peaceful picketing . Prior to the issuance of the complaint
in the aforementioned case , on a petition filed by the
Union in that proceeding , the Regional Director
conducted an election in the unit there found appropriate,
which the Teamsters lost. Timely challenges and
objections were consolidated and heard with the unfair
labor practice case . Based on the findings in the unfair
labor practice case , the Board set aside the election,
severed the representation case and remanded it to the
Regional Director to hold a new election at the
appropriate time . The Board ' s order in the
aforementioned case was enforced by the Court of
Appeals for the Fifth Circuit. N.L.R.B. v. Bush Hog,
Inc., 405 F.2d 755.
The new election directed by the Board was conducted
on February 1, 1967. The tally of ballots issued at that
time showed 84 votes for the Union, 82 against , with one
void and 22 challenged ballots.' The Union filed timely
objections to conduct affecting the results of the election.
In his report ,' the Regional Director sustained 7
challenges, overrruled 15, found merit to some objections,
but concluded that others raised issues which could best be
disposed of by a hearing . He recommended that the 15
ballots as to which challenges had been overruled be
opened and counted, and that if this resulted in a victory
for the Union, the latter be certified, and if not, that a
hearing be held, on the objections . After timely exceptions
by Respondent the Board, on August 2, 1967, approved
the Regional Director ' s Report and remanded the
representation case to him for further proceedings in
accordance therewith.'
What further proceedings, if any, there were in Case
15-RC-3093, is not disclosed by this record.' In any event
the record in the instant case shows that in Case
15-RC-3805, on petition of Steelworkers, the Union
involved in this proceeding , an election was conducted on
February 1, and on June 14, that Union was certified as
the exclusive collective -bargaining representative of the
employees in an appropriate unit.' On July 19, the
Regional Director issued a complaint in Case 15-CA-3334
alleging that since June 24, Respondent , in violation of
Section 8(aX5) and (1) of the Act, refused to bargain with
the Union as the representative of the employees. By
answer , Respondent admitted its refusal to bargain but
asserted that no violation of the Act had occurred because
of the invalidity of the election and the certification. The
case was submitted to the Board upon a stipulation, and
on October 30, the Board issued its Decision and Order
(173 NLRB No. 74), holding that Respondent had
trate was estimated at 193.
'See Report on Challenged Ballots and Objections, issued March 28,
1%7, in Can I5-RC-3093. That Report is an exhibit in the instant case.
'Unreported order of the Board in Can 15 -RC-3093 , dated August 2,
1%7.
unlawfully refused to bargain with the Union, and directed
that it do so upon request."
B. Alleged Current Unfair Labor Practices
1. Interference , restraint , and coercion
The General Counsel relies upon just one statement
allegedly made by Plant Manager W. Russell Buster to
Donald Jones, which is also connected with the alleged
discriminatory discharge of Roy Chance, hereinafter
considered. Chance was discharged on August 19,
allegedly for defective work he performed on four
machines in the production of which he had participated
on August 13. A few days after Chance's discharge,
Donald Jones, who is vice president of the Local, a fact
well known in the plant, engaged in conversation with
James Seymore , apparently a clerical or management
employee. Seymore asked Jones if the latter thought that
Chance might be reinstated, and offered to bet Jones $5
that such would not happen. Jones replied that it was
strange that the Company would so suddenly fire Chance
who had worked for Respondent some 8 or 9 years.
Shortly thereafter Plant Manager Buster called Jones to
his office and there accused the latter of sending him
messages about Chance's discharge. Jones repeated the
statement he had made to Seymore . Buster thereupon told
Jones that the Company had things on Chance that he
(Jones ) knew nothing of; that Board representatives had
told them to fire Chance; that Chance had been holding
up production; and that he had some information that he
(Jones) had held up production. Jones vigorously denied
the accusation against him, and Buster then told Jones
that "If [he] didn't know it, [his] job was on a pile of
banana peelings.""
2. Conclusions as to alleged interference, restraint,
and coercion
Buster 's statement to Jones that the latter 's job was on
a "pile of banana peelings ," could be a violation of
Section 8(a)(1) of the Act only if the statement may be
reasonably construed as meaning that the threat to Jones'
job was because of his support and assistance to the
Union . As Buster has' just accused Jones of holding up
production , which Jones had denied , it is just as
reasonable to construe his statement that it was because of
his holding up production that Jones' job was in jeopardy.
Because the statement is at best ambiguous , I find and
conclude that Buster ' s statement to Jones, in the
circumstances in which it was made , did not violate
Section 8(ax 1) of the Act."
_q 'Fe BoarVa files of which I take official notice, show that the case was
closed on September 11, 1%7, upon a certification that no labor
organization was the exclusive representative of the employees involved.
Inc unit is "All production and maintenance , shipping and receiving
employees at the Selma, Alabama, plant, including truckdrivers ; excluding
all office clerical employees , watchmen and/or guards and supervisors as
defined in the Act.
"The findings in the last paragraph above , are based on the Board's
findings in Bush Hog. Inc.. 173 NLRB No. 74.
"Based on the uncontradicted , and to this extent credited testimony of
Donald Jones . Buster, the last witness who testified in the trial, did not
deny that he made the statements attributed to him by Jones.
"The conclusion thus reached makes it necessary to decide the further
question whether, as Respondent contends but the General Counsel denies,
Donald Jones is a supervisor within the meaning of Sec . 2(l1) of the Act,
and that for that reason Buster's statement to him which no other
employee heard , was not a violation of Sec . 8(axl) of the Act.
BUSH HOG , INC. 817
3. The alleged Section 8(a)(3) violation
Roy Chance , who was discharged on August 19, had
worked for Respondent for about 8 years as a welder.
Although he had worked at times in fabricating parts,
most of his time had been spent in production , working on
the so-called tables , and he had been so employed for a
period of about 8 months prior to his discharge. About
the time he was transferred to the tables , Chance's pay
was increased from $2 . 05 to $2.15 an hour ." At the tables
two employees work as a team welding the respective
parts together , one on the right and the other on the left
side of the machine to be produced . After completing their
welding operations , each welder hammers his individual
stencil into his side of the machines ." As a team Johnson
worked the right side of the machine, and Chance the left.
Chance 's last day of work was August 13. He did not
return to work until August 19, because of illness, and
when he returned that day he was immediately discharged.
The termination notice given Chance on August 19,
assigned as the reason for the discharge , "Quality of
welding is consistently below standards we must
maintain ," and was signed by Walter Taylor , the welding
department foreman , and Chance 's immediate supervisor.
Chance was president of the Local Union , and probably
the most active prounion employee in the plant. That
Respondent was aware of Chance ' s Union activity is clear.
Not only is Chance's name prominently mentioned in the
prior Board case (see 161 NLRB at 1585-86 ), but Plant
Manager Buster admitted in his pretrial affidavit "I knew
that Chance was president of the current union campaigns
and has been actively attempting to get , and has been
leader of unions of Bush Hog for 6 or 7 years."
On August 14, about 27 machines were rejected by
inspection for defective workmanship , and returned for
correction . Among these were four machines produced by
Chance and Johnson . When these four machines reached
the welding department , they were examined by Foreman
Taylor who concluded that Chance was the employee
responsible for virtually all of the defective workmanship,
and reported his findings to Plant Manager Buster, who
alone has the authority to discharge . Buster examined the
four machines and concluded that the work was the worst
of any he had seen by any employee of ordinary
experience , and that the defective workmanship by Chance
was intentional for the purpose of slowing down
production . Respondent established that for some time
Plant Manager Buster regarded Chance ' s work as
unsatisfactory and determined to discharge him for that
reason , but upon discussing the matter with counsel, was
restrained from doing so because of possible prejudice to
pending labor litigation . After receiving Foreman Taylor's
report about Chance ' s defective work on August 13 and
"Chance testified he had heard that other employees received raises
about the same time . The General Counsel argues that this is heresay
evidence, and with this excluded there is no testimony to establish that the
raise given Chance was other than for individual merit . Although the
General Counsel's objection to this testimony was overruled, I find it
unnecessary to reconsider the correctness of that ruling . Assuming that the
testimony objected to should not have been received , the burden of proving
discrimination rests with the General Counsel , and if the raise given
Chance was for individual merit , proof of that fact could and should have
been adduced by the General Counsel . Such evidence was available to him
at least by means of a subpena requiring Respondent to produce its payroll
records . The record contains no proof that the raise given Chance was for
individual merit.
"Chance's stencil mark was G , and Eddie Johnson who was Chance's
teammate for some months prior to August 19, had the stencil mark E.
his own inspection of that work , as above related , Buster
again discussed the matter with counsel , and on this
occasion counsel agreed that Chance should be discharged.
Roy Howell , who has been a welder for about 27 years,
for some years a teacher in a local trades school , and who
appears to be completely disinterested in the results of this
litigation , credibly testified that on November 29, just 4
days prior to the trial of this case , he, at Respondent's
request, thoroughly examined the four machines referred
to, without knowing who had produced them . Howell
testified without contradiction that his examination of the
rights sides of the four machines (Johnson ' s work),
disclosed just one defect in workmanship , namely that a
weld on one machine had been missed , while his
examination of the left side of the machines (Chance's
work), disclosed that there were six or more defective
welds on each machine. Most of these defects, according
to Howell, were that the two pieces of metal to be welded
had not been bonded , or to use his expression , the crack
was missed entirely , or in major part . Howell ' s inspection
led him to the conclusion that the welding on the left side
of the four machines had been done by one with little
experience in the field , or that the defects therein were
caused chiefly by carelessness . Three days later (December
2) Howell inspected a number of other machines which he
selected at random from the assembly line, and from the
warehouse . On these machines , he testified , all welds were
superior , and that he found no welds where the two
surfaces had not been properly bonded.
Howell further testified credibly that bubbles in a weld
caused by improper gas mixture are readily apparent upon
examination of a weld, and that on none of the machines
he inspected was there any evidence of improper gas
mixture or improper functioning of the welding
equipment. In this connection , Clarence Hurst, a
maintenance mechanic for Union Carbide Company,
which installed the gas system used for welding at
Respondent ' s plant , testified - and I fully credit his
testimony - that he made the required settings on the
gauges which controls the gas mixture ; that such gauges
are in a locked enclosure which is entered only by the
plant foreman for the purpose of changing the oxygen
cylinder; that the foreman was instructed not to change
the setting on the gauges , but to call Union Carbide if
difficulties in the gas mixture occur ; that he has received
no such calls from Respondent ; that on the occasions that
he inspected the system in June 1968, it was functioning
properly and no adjustment of the gas mixture was found
necessary or made; and that if the gas mixture was
improper all of the welding would be bad.'s
Chief Inspector Booker testified that he examined the
four machines produced by Chance and Johnson , marking
on blue prints which are in evidence the defects he found
on the left side of the machines , where Chance worked.
On the four machines Booker found 44 defective or
unacceptable welds , and testified fully as to the nature of
the deficiency in each weld , most of which , according to
"There is also the credible testimony of Welding Foreman Taylor that
while he had a key to the enclosure housing the gas system , he entered it
only to change an oxygen cylinder, and never made any changes in the
gauges regulating the gas mixture . Moreover, as heretofore related, the
credited testimony of Howell was that bubbles in welds are readily
apparent, and that none were in evidence when he made his inspections.
Accordingly , I do not credit that part of the testimony given by the
General Counsel's employee witness , that after the vacation period in July,
when the new welding system was extended to all the tables , the quality of
the welding was inferior by reason of bubbles in the welds caused by
improper gas mixture. .
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Booker had an adverse effect on the life expectency and
durability of the machine. The testimony shows that the
two man team working on a Model 306, on which Chance
and Johnson were working, each make from 50 to 60
welds on a machine. Assuming the larger figure, Chance
made 240 welds on the four machines, 44 of which, or
.1833 percent were defective for one reason or another."
Welding Foreman Taylor testified that Chance's work
had been deficient for some years, and from time to time
he talked to Chance about it. His testimony is that after
such discussion Chance's work would improve, and then
he would fall back to his previous unsatisfactory
performance, and that on numerous occasions he
recommended to Buster that Chance be discharged, but
that he was never given authority to do so. Taylor
additionally testified that on April 17, 1967, June 6, 1967,
and July 22, 1968, he gave Chance a "Notice of
Disciplinary Action,"" all of which are signed by Chance,
and that when he gave Chance the second notice the latter
stated in substance that he would sign all such notices that
Taylor could write, that they were not worth anything;
that he (Chance) had the Union, the Labor Board, and the
Federal Government behind him and that there was
nothing Taylor could do about it. When asked by Taylor
if he would repeat the statement in the presence of
witnesses, Chance replied, "Hell no, if you say I said it I
will say its a damn lie and the Labor Board will take my
word over yours.""
The General Counsel does not deny that Chance's
work, at least on August 13, was unsatisfactory." He
argues that the unsatisfactory work on August 13, was
merely a pretext, and contends that the true reason for the
discharge was Respondent's desire to rid it of a known
active union adherent who for some years had been
engaged in an effort to bring a Union into the plant,
arguing that Chance's performance was no different from
that of other employees who were not discharged or
disciplined. To establish the alleged disparate treatment,
the General Counsel relied on the following:
1. For some years Respondent has used a system of
attaching a so-called reject tag to any machine that failed
to pass inspection.20 To establish that Chance's work was
no worse than that of other welders, the General Counsel
offered in evidence all of the reject tags contained in the
files of Chance, R. C. Avery, Carl Jones and Mac Jones.
Carl and Mac Jones, Respondent concedes, were
competent and satisfactory welders. Avery, Respondent
contends, was as unsatisfactory a welder as Chance. An
analysis of these tags in evidence shows that between July
1, 1965, and August 14, 1968 (his last day of work),
Chance had 29 reject tags in his file." On 18 of these the
"Of course , if the smaller figure is used , Chance made 200 welds on the
4 machines , 22 percent of which were defective (44 divided by 200 equals
22 percent).
"I he first mentioned Notice bears the legend "Failing to fill out work
order on Order No . 6126, on 4-14-67"; the second bears the legend, "Poor
welding on 6805 pans. Final notice on poor welding next poor welding will
be laid off"; and the last notice reads , "Production less than standard. Has
been warned verbally several times."
"Chance was present throughout the trial and heard all the testimony
relating to his aforementioned remarks as well as to the deficienci es in his
work , but he was not recalled to deny any of it . Such testimony, therefore,
stands undenied on the record . I can only conclude, as I do , that his failure
to deny such testimony was because he could not truthfully do so.
"Indeed implicit in the tenor of the General Counsel's brief , read as a
whole, is the concession that Chance 's work was unsatisfactory , and that
had this been the real reason for the discharge , no violation of Sec . 8(aX3)
would have occurred.
legend is "bad welding" or "poor welding." There is no
indication on any of these tags with respect to the number
of defective welds on any machine or group of machines.
Carl Jones had 14 reject tags in his file, issued on or after
September 1, 1965." Of these most bore the legend "poor
welding"; "missed welds"; or "left welds off." Three of
these (G.C. Exhs. I1 (k), (m), and (n), each relating to
one machine, and all undated), the respective legends are
"missed 5 welds," "missed 4 welds," and "missed 5
welds." Except for those three tags , there is no indication
as to the number of defective welds on any machine or
machines. Mac Jones' file had 18 reject tags issued on or
after January 5, 1965.23 Of these 14 bore legends
indicating defective welding. Four of the undated tags
(G.C. Exhs. 10 (o), (p), (q), and (r)), respectively refer to
4, 2, 8, and 3 missed welds. Except for these four tags
there is no indication as to the number of defective welds
on any machine or machines. R. C. Avery's file disclosed
39 reject tags issued to him on or after May 20, 1965, but
prior to his discharge on August 12.=0 Of these 33 have a
legend indicating bad welding. Six tags issued to Avery
referred to a specific number of defective welds. Thus on
G.C. Exh. 9 (g), the legend reads "18 welds missed on 4
machines"; on G.C. Exh. 9 (ag) the legend is "5
miss-welds"; on 9 (ai) the legend is "miss 4 welds"; on 9
(aj) "3 miss-welds"; on 9 (ak) "miss 4 welds"; and on 9
(al) "miss 2 welds." Aside from these tags there is no
indication as to the number of bad welds on any machine
or machines.
2. That during the period from August 14 to 19, other
welders, particularly Carl Jones and Mac Jones, had
machines rejected and were not discharged, given notices
of disciplinary action, or reprimanded in any way. The
record fails to show, however, either the nature or extent
of the defective work involved in those instances.
3. That the personnel file of R. C. Avery, whom
Respondent regarded as among the worst welders in the
plant , and equally as bad as Chance, contains no "Notice
of Disciplinary Action," and that when Avery was
discharged on August 12, the reason given on his
termination slip was "Absenteeism very bad, loosing too
much time."
4. Conclusions regarding the discharge of Chance
The issue here is determining Respondent's motive for
discharging Chance. Determination of this issue is not, to
borrow a phrase from Mr. Justice Frankfurter, "a
problem in mensuration" (Kirschbaum v. Walling, 316
U.S. 517, 523). In such cases motive must be determined
from all the surrounding facts and circumstances, no one
factor being determinative. Giving full consideration to the
entire record in this case, I find and conclude that the
General Counsel has failed to prove by a preponderance
of the evidence that Respondent discharged Chance for
discriminatory reasons.
"The testimony is uncontradicted that inspectors did not always use
reject tags, but frequently marked the defects with a colored crayon. It is
thus plain that the number of reject tags in an employees file does not fully
reflect an employee's performance or the quality of his work.
"Five of these were given in 1965, 13 in 1966; 5 in 1968 , and 6 are
undated.
"Three of these were given in 1965 , 6 in 1966 ; 1 in 1967, and 4 are
undated . There were none dated in 1968.
"Eight of these were issued in 1965; one each in 1966, 1967, and 1968
and 7 are undated.
"Sixteen of these are dated in 1965, 10 in 1966, 1 in 1967; 4 in 1968,
and 8 are undated.
BUSH HOG , INC. 819
In reaching this conclusion I start with the fact, basicly
uncontroverted by the General Counsel, that Chance's
work on August 13, was incredably bad, and absent other
considerations, would plainly justify his discharge. I credit
Howell's testimony that his inspection of the four
machines on which Chance worked convinced him that
such could be explained only by assuming that it had been
performed by one with little experience in the field, or by
one who was simply careless. As Chance had worked for
Respondent as a welder for approximately 8 years, he was
certainly not a novice in the art of welding, and on the
basis of Howell's testimony I can only conclude that he
was careless and indifferent to his work, and was in effect
inviting discharge. Chance's remarks to Foreman Taylor,
which he failed to deny, not only supports this conclusion,
but also demonstrates that he regarded himself as immune
from discipline because of his position in the Union and
his activity on its behalf. Plainly, he enjoys no such
immunity. Pinellas Paving Co., 132 NLRB 1923, 1932; A.
J. Sackett and Sons, Co., 139 NLRB 1272, 1277, and the
cases there cited.
Respondent having established a prima facia case to
support its claim that Chance was discharged for his poor
work performance, the burden rested upon the General
Counsel to establish the disparate treatment of Chance
which he claimed to be the fact, and that Chance's poor
work was not the real reason for his discharge. I find and
conclude that the record fails to support the General
Counsel's contention. It is true that in roughly the same
period employee Avery got 10 more reject tags than
Chance, and that one of these referred to 18 defective
welds on four machines; that when Avery, whom
Respondent claimed was as bad a welder as Chance, was
discharged on August 12, the reason for the discharge was
absenteeism, rather than bad work; that Carl Jones and
Mac Jones, each had four or more machines rejected for
defective welds on August 14, and that they were not
reprimanded or disciplined in any way, but I do not
regard this, under the circumstances of this case, as
sufficient to establish by a preponderence of the evidence
that Respondent's treatment of Chance was disparate. The
most that can be said of this evidence is that it raises a
suspicion, but suspicion is not an adequate substitute for
proof by a preponderence of the evidence. My conclusion
that the General Counsel has failed to prove disparate
treatment of Chance is based on the following
considerations:
1. The reject tags do not provide a proper basis for
comparison of the work performance of the several
employees. Admittedly the inspectors did not uniformly
use reject tags and there is no basis in the evidence for
determining or even estimating what portion of any
employee's work is covered by reject tags.
2. Although the reject tags in evidence refer to "bad
welding" or "poor welding" for the most part the reject
tags do not refer to the number of defective welds on the
particular machine or machines. As the plural was used, I
assume the reject tags referred to more than one defective
weld, and a few tags refer to 3, 4 or 5 defective welds.
Even the tag most favorable to General Counsel's position
- the one given Avery which refers to 18 defective welds
on four machines - assuming that all four machines were
produced the same day, is more than 100 percent better
than Chance's record on August 14, when he had 44
defective welds on four machines.
3. There is no showing that Carl Jones, Mac Jones,
Avery, or any other employee, received a "Notice of
Disciplinary Action" as many as three times, as did
Chance.
4. There is no showing that Carl Jones , Mac Jones, or
Avery , the employees whom Respondent allegedly treated
more leniently , were not union adherents . In fact what
little evidence is in the record on that subject would
indicate that Carl and Mac Jones were union adherents,
for since August 30,'both have been on strike in support
of the Union ' s demands.
Accordingly , for the reasons stated , I must and do find
and conclude that the General Counsel has failed to prove
by a preponderence of the evidence that Chance was
discriminatorily discharged.
5. The 8(a)(5) allegations
The complaint when issued alleged, in addition to a
general refusal to bargain with the Union as the
representative of the employees involved, that on or about
September 2, Respondent (a) engaged in direct
negotiations with employees in the unit, and (b)
unilaterally promised and granted said employees
increased benefits, including paid holidays and "drop"
benefits, to discourage them from supporting the Union.
The answer denied these allegations. To support the
foregoing allegations, the General Counsel relied upon a
written stipulation of the parties which, to the extent here
material, establishes that on September 2, company
representatives met with its drivers25 and during the
meeting one driver asked why they were not receiving
drop pay of $2 per stop for the first and second delivery
stop, claiming it was the practice in the area for drivers to
receive such compensation. Respondent's representatives
promised to look into the matter. Thereafter, and
commencing with the payroll period ending September 6,
Respondent paid the drivers a fee of $2 per stop for the
first and second delivery stop. There is no evidence in the
record regarding the payment of increased holiday pay, or
increased benefits of any other kind.
At a later stage of the trial, while cross-examining
Foreman Taylor, a witness called by Respondent, the
General Counsel developed testimony that after the strike
which began on August 30, Respondent raised the wage
rate of at least some welders from $2.30 to $2.50 an hour.
Taylor mentioned the name of three employees who had
been so raised, and said there were others whose names he
did not recall. The General Counsel's motion to amend
the complaint to allege these wage increases to be
violations of Section 8(a)(5) and (1) of the Act, and to
allege that such conduct prolonged the strike, was granted.
Respondent offered no testimony bearing upon this branch
of the case.
6. Conclusions as to the 8 (a)(5) allegations
Section 8(a)(5) of the Act imposes upon an employer
the duty to bargain collectively with the majority
representative of its employees, and this exacts "the
negative duty to treat with no other ." Medo Corporation
v. N.L.R.B., 321 U.S. 678, 684. This duty is breached
when the employer without notice to or bargaining with
the majority representative, unilaterally changes wages,
hours , or other terms and conditions of employment. May
Department Stores v . N.L.R.B., 326 U.S. 376; N.L.R.B.
v. Katz, 369 U.S. 736. Such action is, in practical effect,
bargaining with the employees individually, in derogation
of the status of the majority representative to whom alone
"The unit for which the Union is certified includes drivers.
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the duty to bargain is owed. May Department Stores v.
N.L.R.B., supra; N.L.R.B . v. Katz , supra. Indeed, the
Katz case , supra , makes it clear that an employer violates
Section 8(a)(5) of the Act, if he makes unilateral changes
in wages, hours or working conditions without first
bargaining to an impasse with the majority
representatives , regardless of his motives in effectuating
such a change . The record fully established - indeed it is
not contend to the contrary - that Respondent, after
refusing to bargain with the Union , unilaterally increased
the compensation of the drivers and at least some of the
welders . Accordingly , I must and do find and conclude
that Respondent thereby violated Section 8 (a)(5) and (1)
of the Act.
6. The character of the strike
As stated above, certain employees struck Respondent's
plant on August 30. The day before the strike a
representative of the Union met with the employees to
ascertain their wishes regarding strike action against
Respondent because of its refusal to bargain with the
Union which had been certified by the Board as the
representative of the employees ." According to the
credited testimony of Chance, which in this regard stands
undenied in the record , the strike resolution was
unanimously adopted . As the Board has found that
Respondent ' s refusal to bargain with the Union was
unlawful - see Bush Hog, Inc., 173 NLRB No. 74 -
and the strike was to protest such unlawful refusal to
bargain , it necessarily follows that the strike which began
on August 30, was caused and continues in effect by
reason of Respondent's unlawful refusal to bargain, and
that the striking employees , other than Roy Chance, who,
as I have herein found was not discriminatorily
discharged, are unfair labor practice strikers who are
entitled , upon their unconditional offer to return to work,
to reinstatement to their former or substantially equivalent
jobs , displacing, if necessary , any replacements hired on or
after August 30 . Dino Boutiques , Inc., 173 NLRB No.
174."
Upon the foregoing findings of fact, and upon the
entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act, and is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. At all times since June 14 , 1968, the Union has been
the duly certified exclusive collective bargaining
representative of Respondent 's employees in a unit of "All
production and maintenance , shipping and receiving
"According to Chance another reason advanced for striking Respondent
was that it had discriminatorily discharged him, the president of the Local
Union , and that the employees voted to make that one of the reasons for
the strike . The picket signs initially carried referred to the firing of the
Union president and the refusal to bargain as the reasons for the strike.
After about 2 weeks the picket signs referred only to the refusal to
bargain . Having found as herein set forth, that Chance's discharge was not
discriminatory , it follows that his discharge could not make the strike an
unfair labor practice strike.
"Because it is unnecessary to a determination of the reinstatement rights
of the strikers, I make no finding as to whether Respondent 's unilateral
action herein found , all of which occurred after the strike began , prolonged
the same.
employees at its Selma , Alabama, plant, including
truckdrivers, but excluding all office clerical employees,
watchmen and/or guards and supervisors as defined in the
Act," a unit appropriate for the purposes of collective
bargaining , within the meaning of Section 9(b) of the Act.
4. By unilaterally changing the wages , hours, and
conditions of employment of its employees in the
aforesaid unit , without notice to or bargaining with the
Union as the collective bargaining representative of said
employees , as found in section IB3 hereof , Respondent
refused to bargain with the Union as such collective
bargaining representative , and thereby violated, and
continues to violate Section 8 (a)(5) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2 (6) and (7) of the Act.
6. The strike by Respondent' s employees , which began
on August 30, was caused and continues in effect because
of Respondent ' s refusal to recognize and bargain with the
Union as the certified bargaining representative of the
employees involved.
7. The General Counsel has failed to prove by a
preponderence of the evidence that Respondent
independently interfered with, restrained or coerced its
employees in the exercise of their Section 7 rights, or that
it discriminatorily discharged Roy D. Chance, and the
allegations of the complaint in those respects should be
dismissed.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I shall recommend that it be
required to cease and desist therefrom and take certain
affirmative action designed and found necessary to
effectuate the policies of the Act.
Having found that Respondent by unilaterally changing
wages, hours and terms and conditions of employment of
its employees in the appropriate unit , without bargaining
with the Union as their sole collective bargaining
representative , violated and continues to violate Section
8(aX5) and (1) of the Act, I shall recommend that
Respondent be required , upon request, to bargain with the
Union concerning such matters and, if an understanding is
reached , embody the same into a written signed
agreement. 3$
Having also found that the strike of Respondent's
employees which began on August 30, was caused and
prolonged by Respondent ' s refusal to bargain with the
Union and was, therefore, an unfair labor practice strike,
I shall in accordance with Board policy , recommend that
upon the unconditional offer of the strikers to abandon
their strike and return to work, Respondent shall offer
each of them, except Chance, reinstatement to their
former or substantially equivalent employment,
dismissing , if necessary , any person hired on or after
August 30 , and make each such striker whole for any loss
of pay suffered by reason of Respondent 's failure, if any,
to reinstate him within 5 days after application, to the
date of Respondent 's offer of reinstatement , by paying to
such striker a sum of money equal to the wages he
"As the specific conduct here found violative of the Act is of a different
nature from that considered by the Board in Bush Hog, Inc., 173 NLRB
No. 74, an affirmative order in this proceeding will effectuate the policies
of the Act and is , as the Board has held , appropriate notwithstanding the
prior bargaining order . Rish Equipment Company, 173 NLRB No. 136,
and cases there cited.
BUSH HOG, INC. 821
normally would have earned during said period , less his
net earnings during that period , in accordance with the
Board ' s formula set forth in F. W. Woolworth Company,
90 NLRB 289, with interest at 6 percent per annum as
provided in Isis Plumbing & Heating Co., 138 NLRB
716.1'
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law and the entire record in the case , and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, I recommend that the National Labor Relations
Board order , Bush Hog , Inc., Selma , Alabama, its
officers, agents, successors , and assigns, to:
1. Cease and desist from:
(a) Refusing , upon request , to bargain collectively with
United Steelworkers of America, AFL-CIO, as the
exclusive bargaining representative of a unit composed of
"All production and maintenance , shipping and receiving
employees at its Selma, Alabama , plant , including
truckdrivers , excluding all office employees , watchmen
and/or guards and supervisors as defined in the Act."
(b) Granting wage increases to, or otherwise altering
the wages , hours , or other terms and conditions of
employment of any employee in the aforesaid unit,
without prior notification to, consultation with, and, if
requested , bargaining with the aforementioned Union
concerning the same , but nothing herein shall be construed
as requiring it to withdraw , change or abandon any of the
terms and conditions of employment currently enjoyed by
its employees.
(c) In any like or related manner interfering with,
restraining or coercing its employees in the exercise of
their right to self-organization , to form labor
organizations, to join or assist United Steelworkers of
America, AFL-CIO, or any other labor organization, to
bargain collectively through representatives of their own
choosing for the purposes of collective bargaining or other
mutual aid or protection , or to refrain from any and all
such activities.
2. Take the following affirmative action designed and
found necessary to effectuate the policies of the Act:
(a) Upon request bargain collectively with United
Steelworkers of America , AFL-CIO , as the exclusive
representative of the employees in the aforementioned
unit, with respect to rates of pay, wages, hours of
employment , and other terms and conditions of
employment , and, if an understanding is reached , embody
the same into a signed agreement.
(b) Upon unconditional application, offer immediate,
full and unconditional reinstatement to their former or
substantially equivalent positions , without prejudice to
their seniority or other rights and privileges , to all those
employees who were on strike on August 30 , 1968, or
thereafter , dismissing , if necessary , any person hired on or
after that date, and make each such striker whole for any
loss of pay suffered by reason of Respondent's refusal, if
any, to reinstate him beginning 5 days after their
"It is the established policy of the Board to require reinstatement of
strikers upon their unconditional application where a strike caused or
prolonged by an employer 's unfair labor practices is still in progress, and
as a part of such prospective remedial order to require a Respondent to
make striking employees whole for any loss or pay occasioned by its
failure to comply with an order requiring reinstatement within 5 days of
the employees ' unconditional application . Dino Boutiques , Inc., 173 NLRB
No. 174, fn 1.
application, to the date of Respondent's offer of
reinstatement.
(c) Notify each employee referred to in the preceding
paragraph hereof if 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,
as amended, after discharge from the Armed Forces.
(d) Post at its plant in Selma, Alabama, copies of the
attached notice marked "Appendix."70 Copies of said
notice, on forms furnished by the Regional Director of
Region 15 of the Board (New Orleans, Louisiana), shall,
after being duly signed by an authorized representative, be
posted 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 to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the aforesaid Regional Director, in writing,
within 20 days from the receipt of this Decision, what
steps it has taken to comply herewith."
IT IS FURTHER ORDERED , that the complaint herein, to
the extent that it alleges that Roy D. Chance was
discriminatorily discharged, and that Respondent
independently interfered with statutory rights of
employees, be, and the same is dismissed.
"In the event 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 be 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."
"In the event this Recommended Order is adopted by the Board, this
provision shall be modified to read: "Notify the aforesaid Regional
Director , in writing, within 10 days from the date of this Order, what steps
it 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 National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL, upon request, bargain collectively with
United Steelworkers of America, AFL-CIO, as the
exclusive representative of the employees in a unit
composed of "All production and maintenance,
shipping, and receiving employees at our Selma,
Alabama, plant, including truckdrivers, but excluding
all office clerical employees, watchmen and/or guards
and supervisors as defined in said Act, and if an
understanding is reached, embody the same into a
written signed contract.
WE WILL NOT grant wage increases to, or otherwise
alter the wages, hours or other terms and conditions of
employment of any employee in the aforesaid unit,
without prior notification to, consultation with, and if
requested , bargaining with the aforesaid Union
concerning the same , but this does not require us to
withdraw or change the wages, hours or working
conditions presently enjoyed by any employee.
WE WILL NOT, in any like or related manner
interfere with, restrain or coerce our employees in the
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exercise of the right to self-organization , to form labor
organizations , to join or assist United Steelworkers of
America, AFL-CIO, or any other labor organization,
to bargain collectively through representatives of their
own choosing , or to engage in concerted activities for
the purpose of collective bargaining , or to refrain from
any and all such activities.
We WILL, upon unconditional application, offer
immediate , full and unconditional reinstatement to their
former or substantially equivalent positions , without
prejudice to their seniority or other rights and
privileges , to all those employees who were on strike on
August 30, 1968, or thereafter , dismissing , if necessary,
any person hired on or after that date , and make such
applicants whole for any loss of pay suffered by reason
of our refusal , if any, to reinstate them beginning 5
days after their application to the date of our offer of
reinstatement , in accordance with the Board ' s usual
formula.
We WILL notify all those employees presently serving
in the Armed Forces of the United States, if any, of
their right to full reinstatement , upon application, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended , after discharge from the Armed Forces.
All our employees are free to become or refrain from
becoming members of United Steelworkers of America,
AFL-CIO, or any other union , or not to become or
remain a member of any union.
Dated By
BUSH HOG, INC.
(Employer)
(Representative ) + (Title)
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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, T6024 Federal
Building (Loyola) 701 Loyola Avenue, New Orleans,
Louisiana 70113, Telephone 504-527-6391.