Fort Smith Chair Co.

National Labor Relations Board - Board Decisions

Jun 28, 1963

143 N.L.R.B. 514 (N.L.R.B. 1963)

514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that it will comply with the foregoing Recommended Order , the Board issue an
Order requiring the Respondent to take such action.
It is further recommended that the complaint be dismissed , insofar as it alleges
any unfair labor practices not found herein.
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 Rela-
tions Act , you are notified that:
WE WILL NOT discourage membership in Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, Local 405, or any other union,
by discriminating against our employees in regard to their hire or tenure of
employment or any of their working conditions.
WE WILL NOT question our employees about their union membership, sym-
pathy, or activities , in a manner violative of Section 8 (a) (1) of the Act.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of their right of self-organization , to form , join, or
assist unions , to bargain collectively through representatives of their own choos-
ing, to engage in concerted activities for the purposes of collective bargaining
or other mutual aid or protection , or to refrain from such activities.
WE WILL offer Ophelia Hutchison immediate and full reinstatement to her
former or a substantially equivalent position , without prejudice to any seniority
or other rights and privileges previously enjoyed, and make her whole for any
loss of pay suffered by her as a result of the discrimination against her.
Our employees are free to become , remain, or refrain from becoming members of
the above -named or any other union.
TENNESSEE PACKERS, INC., FROSTY MORN DIVISION,
Employer.
Dated- ------------------ By-------------------------------------------
(Representative ) ( Title)
NOTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of her right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Train-
ing 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.
Anyone having any question concerning this notice or compliance with its pro-
visions may communicate directly with the Board 's Regional Office, 22 North Front
Street, Memphis, Tennessee , 38103, Telephone No. Ja. 7-5451.
Fort Smith Chair Company and Local 270, United Furniture
Workers of America, AFL-CIO.' Case No. W-CA-1094. June
N8, 1963
DECISION AND ORDER
On May 21, 1962, Trial Examiner Sidney S. Asher, Jr., issued his
Intermediate Report herein, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices and recommend-
ing that it cease and desist therefrom and take certain affirmative ac-
tion as set forth in the copy of the attached Intermediate Report.
Thereafter, Respondent and the General Counsel filed exceptions to
1 United Furniture Workers of America, AFL-CIO, intervened and participated at the
hearing herein , it also filed a brief.
143 NLRB No. 28.
FORT SMITH CHAIR COMPANY 515
the Intermediate Report along with supporting briefs, and the Charg-
ing Party filed a brief in support of the Intermediate Report.
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 Interme-
diate Report, the exceptions and briefs, and the entire record in the
case, and finds merit in the exceptions of the Respondent. Accord-
ingly, the Board adopts the findings of the Trial Examiner only to
the extent that they are consistent with this Decision and Order.
The complaint alleges and the Trial Examiner found that the Re-
spondent violated Section 8 (a) (1), (3), and (5) by discharging its
striking employees and thereafter refusing to bargain with their
collective-bargaining representative. The Respondent contends that
it discharged its employees because they were engaged in an unlawful
strike and that, in any event, the strikers had, under the loss-of-status
provisions of Section 8(d), lost their status as employees by reason
of their representative's failure, before the strike, to file timely notices,
as required by Section 8(d) (3). In consequence, the Respondent
argues, it did not violate Section 8(a) (3) by discharging the strikers
nor did it violate Section 8(a)(5) by thereafter refusing to bargain
because the Union in view of the discharges lost its majority repre-
sentative status. We find merit in the Respondent's contentions.
The relevant facts, briefly summarized, establish the following :
Local 270, United Furniture Workers of America, AFL-CIO, herein
called the Union, and the Respondent, have had bargaining relations
since about 1940. The most recent agreement between the parties was
of 2 years' duration with a stated May 31, 1961, expiration date. Con-
sistent with the notice provision of the contract and with the statutory
requirement of Section 8(d) (1) 2 the Union, on March 27, 1961, gave
notice of its desire to terminate the contract and to negotiate a new
2 Section 8(d) of the Act, as amended, provides, in part, as follows:
. . where there is in effect a collective-bargaining contract covering the employees
in an industry affecting commerce, the duty to bargain collectively shall also mean
that no party to such contract shall terminate or modify such contract, unless the
party desiring such termination or modification-
(1) serves a written notice upon the other party of the proposed termination
or modification sixty days prior to the expiration date thereof
# * P R R t 4
(3) notifies the Federal Mediation and Conciliation Service within thirty days
after such notice of the existence of a dispute . and
(4) continues in full force and effect, without resorting to strike or lockout,
all the terms and conditions of the existing contract for a period of sixty days
after such notice is given or until the expiration date of such contract, which-
ever occurs later:
s s s r s
Any employee who engages in a strike within the sixty-day period specified in this
subsection shall lose his status as an employee of the employer engaged in the par-
ticular labor dispute, for the purpose of sections 8, 9, and 10 of this Act, as
amended . . . .
717-672-64-vol. 143-34
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement. The parties met and bargained on May 29 and 311 No
agreement was reached and on June 1 a strike began. As of June 1,
the notices to Federal Mediation and Conciliation Service and to the
State department of labor required by Section 8(d) (3) had not been
received and so far as appears had not been sent. On June 7, while
the strike was in progress, the parties again negotiated,; a representa-
tive of Federal Mediation and Conciliation Service was then in at-
tendance for the first time. No agreement was reached and another
meeting was scheduled for the next day. However, no such meeting
did, in fact, occur as Respondent, on June 8, notified the Union that
it would not continue negotiations because of the unlawful nature of
the strike. Simultaneously, the Respondent notified each striker that
he was terminated because he had engaged in an unlawful work stop-
page. On June 13, Respondent resumed operations with new em-
ployees, and made certain wage and incentive system changes without
consultation with the Union.
The Trial Examiner found that, immediately preceding the strike,
the Union was willing to accept the old contract with minor changes
already agreed upon. In view of this and his further finding that,
at this point, Respondent was demanding modification of the old
contract, he concluded that the purpose of the strike was not to
cause termination or modification of the contract, but was rather to
force Respondent to abandon its insistence upon substantial changes
in the agreement. From these preliminary findings, the Trial Exam-
iner reasoned that as the strike was not for the purpose of modifying
or terminating the contract, Section 8(d) was not applicable and the
strikers were, consequently, engaged in a lawful economic strike for
which they could not be lawfully discharged.'
The Trial Examiner has found, in effect, that while Section 8 (d)
imposes its requirements upon the party desiring to terminate or
modify the contract, the duty of complying with these requirements
may at times shift from the party who initially invokes that section
to the other party. We perceive no basis in this section, or in the
legislative history, for viewing the responsibility under this section
so tentatively. To make this section's continued applicability to the
party initially desiring the change turn on the unpredictable course
which the ensuing bargaining may take is to bring the disquiet of
a potential lockout or a strike into an area where Congress wanted
quiet-indeed, a "cooling-off" period. We therefore conclude con-
trary to the Trial Examiner that, by serving notice of its desire to
8 All dates refer to 1961 unless otherwise designated.
'Absent any violation of Section 8(d), the strike would appear to have been a lawful,
economic strike. While the Union contends that the Respondent failed, and refused to
bargain in good faith before the strike and that the strike must therefore be viewed as
an unfair labor practice strike at its inception , the record provides no support for this
contention nor was it alleged in the complaint.
FORT SMITH CHAIR COMPANY 517
terminate the existing contract and to negotiate a new agreement,
the Union took upon itself the responsibility for complying with
the remaining requirements of Section 8(d) before engaging in a
strike and that its failure to file the notices required by Section
8(d) (3) caused the strike to be unlawful from its inceptions
While we have assumed heretofore the correctness of the Trial
Examiner's finding that, immediately prior to the strike, the Union
was seeking solely the old contract, the record does not substantiate
his finding. For it is abundantly clear that the Union was seeking
rather a contract wit& modifications already agreed upon in the course
of negotiations. Nor do we believe that Mastro Plastics Corp. v.
N.L.R.B.,s cited by the Trial Examiner, supports a finding as to the
legality of the strike. That decision by its very language dealt with
the situation of a strike by employees "solely against unfair labor
practices of their employer."' As indicated above, the strike here
was riot in protest against employer unfair labor practices, nor, as
indicated above, does the complaint contain such allegation. Mastro
Plastics, therefore, is wholly inapposite.
As we have found the June 1 strike to be unlawful, the Respond-
ent could, as it contends it did, lawfully discharge employees because
they engaged in the strike. However, the General Counsel contends,
and excepts to the Trial Examiner's failure to find, that the real
reason for discharging the strikers was not the strike but the desire
of the Respondent to rid itself of the Union. The General Counsel
attaches a controlling significance to the testimony of Respondent's
secretary-treasurer given in response to a question as to why he dis-
charged the strikers. In substance, this witness testified that before
reaching his decision he had considered the Respondent's financial
difficulties, the Respondent's difficulty in obtaining changes in work-
ing conditions, the Union's harassment of Respondent through the
filing of grievances, and the Union's uncompromising attitude. This
is no more than a formulation of the background against which the
Respondent decided to exercise its lawful right to discharge its em-
ployees for engaging in an unlawful strike. It falls short of being
an admission of illegal motivation. Given a valid reason, as here,
for discharging its employees and the fact that this reason was set
forth in the Respondent's letter to these employees shortly after Re-
spondent learned of the noncompliance with Section 8(d), there is
ample basis on the entire record for concluding, gas we do here, that
employee participation in the unlawful strike was the real reason
for the discharge.
5 Retail Clerks International Association , Local No. 1179 AFL, etc. (J. C. Penney Com-
pany ), 109 NLRB 754; Local Union 219, Retail Clerks International Association, AFL-
CIO v. N.LR.B. ( Carroll House of Belleville ), 265 F. 2d 814 (C.A.D.C.).
0 350 U.S. 270 (1956).
7 350 U.S at 271.
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moreover, apart from the foregoing, we find that the Respondent's
motive in discharging the strikers is not a relevant consideration.
The strike here was an unlawful, and not merely an unprotected, ac-
tivity," and by engaging in such a strike, the employees "forfeited
their rights to protection of the Act."' To hold otherwise would, in
effect, protect the strikers in their unlawful conduct, a result clearly
in collision with the Board's responsibility to discourage such
conduct."'
As set forth in footnote 2, above, Section 8 (d) requires both 60-day
and 30-day notices. The so-called loss-of-status provision of Section
8 (d) provides that "Any employee who engages in a strike within
the sixty-day period specified in this subsection shall lose his status
as an employee of the employer engaged in the particular labor dispute,
for purposes of sections 8, 9, and 10 of this Act . . . ." The General
Counsel and the Union argue that because only one 60-day period is
"specified" in Section 8(d)-that set forth in subsection (1) and be-
ginning with the date of service of the notices required by that sub-
section-the loss-of-status provision should be interpreted as applying
only ton strike occurring within the 60-day period following service
of the 8 (d) (1) notices and without regard to the serving of the 30-day
notice under Section 8(d) (3). Under such a construction, their argu-
ment goes, the strikers in this proceeding would not lose their status
as employees since the strike commenced more than 60 days after
service. However, to give such a literal construction of the waiting
period to the loss-of-status provision is to wrench it from the rest of
Section 8(d). As one court has stated, ". . . there are no `plain
words' of Section 8 (d)." 11 Rather, the section must be interpreted
in light of the dual purposes of the Act to protect concerted activities
and to substitute collective bargaining for economic warfare.12 To
aid the latter purpose, Section 8(d) not only provides for a 60-day
period during which the parties to a contract are to bargain without
strike or lockout but also provides in Section 8 (d) (3) for the full use
of mediation services during at least half of such period. While sub-
sections (1) through (4) place certain obligations upon the contractual
parties in order to assure that bargaining and mediation can proceed
for a reasonable time free from direct economic pressures, the loss-
of-status provision, in effect, places an obligation upon employees for
the same purpose. Consequently, it seems obvious to us that the various
8 See cases cited in footnote 5.
6 Mackay Radio and Telegraph Company, Inc , 96 NLRB 740 , 742-743.
10 Agreeing with the majority that Respondent did not have a discriminatory intent,
Member Brown finds it unnecessary to consider what the situation would be had Respond-
ent's motive been otherwise, and, in view of the specific language of Section 8(d), he
also finds it unnecessary to rely on Mackay Radio, supra
11 Local Union 219, Retail Clerks International Association , AFL-CIO v N.L R B, supra,
at 817.
12 E g , Mastro Plastics Corp., supra , at 284 ; see also Sections 201-205 ( Title II) of
the Act.
FORT SMITH CHAIR COMPANY 519
parts of Section 8(d) here involved must be read together in order
to create an effective and consistent statutory means for achieving the
purpose of the section.
It is true that subsection 8 (b) (4), which limits the rights of the
contracting parties to resort to strike or lockout, defines the proscribed
period as one of "sixty days after such notice is given" and that this
Board and the courts have recognized that the period thus described
refers to that "specified" in Section 8(d) (1). However, it has also
been concluded that, where late notices under Section 8(d) (3) to the
Mediation and Conciliation Service are filed, the waiting period must
be extended to include a full 30 days after the filing of such notices
in order to give mediation its intended statutory period in which to
work. Indeed, a strike within the 30-day period is unlawful and is
therefore enjoinable.13 By parity of reasoning, the "sixty-day period
specified in the subsection" set forth in the loss-of-status provision re-
quires the same interpretation to protect the period for mediation.
Surely, the statutory language suggests no basis for concluding that
the similarly worded waiting periods of Section 8(d) should vary
from clause to clause and, as indicated above, we believe there are
cogent reasons why they should not. Consequently, we conclude that
the loss-of-status provision is applicable not only to strikes within
the initial 60-day period but also to those strikes beginning less than
30 days after service of the 8(d) (3) notices or, with respect to the
present case, to those occurring absent the filing of such notices.14 We
finally conclude, therefore, that, by operation of the loss-of-status
provision of Section 8(d), the strikers lost their employee status and
13 Local Union 219 Retail Clerks International Association , AFL-CIO v. N L R B , supra,
and Retail Clerks International Association , Local No . 1179 AFL, etc (J C Penney
Company), supra.
11 Our dissenting colleague contends that Retail Clerks International Association, Local
to 1179, AFL, etc (J. C Penney Company). supra, and "related cases" support his
view as to the effect of the " loss-of-status" provision where no 8(d ) ( 3) notices have been
filed and a strike occurs after the initial 60-day period has expired He would conclude
that by ordering the union to bargain in J. C Penney Company, the Board , by implica-
tion, held the strikers had not lost their employee status since , if it were otherwise, the
union would have had no majority status on which to base a bargaining order . However,
matters concerning the applicability of the various provisions , including that of the
loss-of-status provision , do not automatically intrude themselves into the consideration
and disposition of a case by the Board , but must be properly raised by the party seeking
to rely upon them . See N L R B. v Giustina Bros Lumber Co ., 253 F 2d 371 (C A. 9)
Consequently , as no party apparently raised the loss-of-status provision in J. C Penney
and related cases , the Board could not , absent overriding policy considerations , have con-
strued that provision in reaching its decision or in framing its remedy . Thus , there is
no basis for implying , as does the dissent , some particular Board construction of the
loss-of-status provision from the decision and order in J. C. Penney and "related cases."
Furthermore , we find no support for the dissenting position in the Supreme Court
majority and concurring opinions which it cites . As for Mastro Plastics, supra, it dealt.
as noted with the applicability of Section 8(d) to an unfair labor practices strike;
while NLRB v Lion Oil Company, 352 U.S. 282 , concerned that section's applicability
to a strike during the term of a contract . Thus neither case involved the instant situation
and neither was specifically concerned with the effect of Section 8(d) (3) upon the loss-of-
status provision Consequently , we do not believe that the general statements directed to
the problems before the Court and relied upon by the dissent are useful in construing
Section 8(d) with respect to the particular problem before us.
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the protections of Section 8(a) when they walked out on June 1 and
that, consequently, such motive as may have been behind the Respond-
ent's actions with respect to them is immaterial.15
In sum, we here decide that the Respondent did not violate Section
8(a) (3) and (1) by its conduct with respect to the strikers on and
after June 8, 1961. Also as the strikers' employee status was lawfully
terminated, it follows, and we find, that the Respondent's breaking
off of negotiations with the Union and its unilateral changes in work-
ing conditions did not violate Section 8(a) (5) and (1), as alleged.
Accordingly, we shall dismiss the complaint.
[The Board dismissed the complaint.]
CHAIRMAN MCCULLOCH, concurring :
I concur in the result reached in this case. The strike engaged in
by the discharged employees was unlawful under Section 8(d) (3)
of the Act because of the Union's failure to give the 30 days' notice
therein required,"' and as such was an unprotected concerted activity
for which the employees could validly be discharged. Together with
the majority, I do not believe that the record substantiates a finding
that the discharge action was in truth motivated by any other con-
sideration. Hence, like Member Brown, I find it unnecessary to de-
termine what the situation might have been had the record established
discriminatory motivation on some other basis. Nor do I find it neces-
sary now to pass on the question of whether the employee "loss of
' See footnote 10, supra.
Our colleague objects in his dissent to the fact that our construction interferes with
the right to strike in a manner not specifically provided for in the Act . See Section 13.
However, the Board has found strikes unlawful or unprotected in situations where the
Act does not specifically proscribe such strikes but where , however, important policy
considerations deriving from the Act require such result . See, for example , Budd Elec-
tronics, Inc., 137 NLRB 498, finding a strike in violation of a no-strike clause unpro-
tected. and Mackay Radio and Telegraph Company, Inc ., supra, holding unlawful a strike
to compel an employer to violate the Act. Furthermore , we believe that Section 8(d) (3)
was intended as a "specific" limitation on the right to strike . Thus, as Senator Taft
observed in defending S. 1126 which contained provisions substantially the same as those
here under consideration: "We have done nothing to outlaw strikes for basic wages,
hours, and working conditions after proper opportunity for mediation " ( 93 Cong. Rec.
3835 , Apr. 23, 1947 ; emphasis supplied ) and the events since the passage of the 1947
Act have demonstrated that compliance with Section 8(d) (3) has been an important
adjunct in providing that congressionally intended "proper opportunity for mediation."
In the second report of the Joint Committee on Labor-Management Relations it is ob-
served that the Federal Mediation and Conciliation Service "has been greatly assisted in
this program [ of preventing disputes] by the fact that under Section 8 ( d) (3), a party
desirous of modifying or terminating its contract must notify the Service 30 days before
resorting to a strike or lock-out . . . . In the days before the 30 -day notice was required,
strikes frequently occurred before the regional offices of the Service had any knowledge
that there was a dispute." Rept. 986, 80th Cong., 2d sess., pt. 3, p. 15. ) Clearly, our
colleague's conclusion that employees may lawfully strike after 60 days but irrespective
of the filing of 8(d ) ( 3) notices goes far toward defeating the congressional purpose of
providing mediation to help avoid industrial strife.
10 Retail Clerks International Association , Local No. 1179 , AFL, etc. (J. C. Penney Com-
pany ), 109 NLRB 754; Local Union 219 , Retail Clerks International Association, AFL-
CIO v. N.L.R B., 265 F. 2d 814 ( C.A.D.C.).
FORT SMITH CHAIR COMPANY 521
status" penalty provision contained in the final sentence of Section
8 (d) is applicable in the case of a strike preceded by compliance with
the 8(d) (1) 60-day notice requirement but not by compliance with
the notice requirement of Section 8(d) (3). The unprotected activity
ground adverted to above is enough, without more, to support the
dismissal order in which I join.
MEMBER FANNING, dissenting :
This case involves essentially conflicting arguments concerning the
construction and application of Section 8(d). Basically, the conflict
revolves around the thrust and scope of the "loss of status" provision
in that section, and the extent to which Congress intended to inhibit
the right of employees to engage in an economic strike.
In pertinent part, Section 8(d) provides that no party to a
collective-bargaining agreement shall modify or terminate such agree-
ment unless the party desiring such termination or modification-
(1) serves a written notice upon the other party to the contract
of the proposed termination or modification sixty days prior to
the expiration date thereof, ..
(3) notifies the Federal Mediation and Conciliation Service
within thirty days after such notice of the existence of a dispute,
and simultaneously therewith notifies any State or Territorial
agency established to mediate and conciliate disputes ...
(4) continues in full force and effect, without resorting to
strike or lockout, all the terms and conditions of the existing
contract for a period of sixty days after such notice is given ... .
The penultimate sentence of this section contains the "loss of status"
provision which recites that-
Any employee who engages in a strike within the sixty-day pe-
riod specified in this subsection shall lose his status as an employee
of the employer engaged in the particular labor dispute, for the
purposes of sections 8, 9, and 10 of this Act. . . . [Emphasis
supplied.]
The Union in this case gave Respondent the requisite 60-day notice
of termination as prescribed in Section 8 (d) (1), and both the Union
and the employees refrained from engaging in a strike during that
period in obedience to the mandate of Section 8(d) (4). However,
the Union failed to notify the Mediation Service as outlined in Sec-
tion 8(d) (3). After the 60-day period had elapsed, the employees
struck. Despite the fact that, both grammatically and structurally,
the "loss of status" provision interdicts strike action by employees
solely during the 60-day period specified in Section 8(d) (1) and (4),
my colleagues hold that, where a union fails to notify the mediation
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agencies of the existence of a dispute within that 60-day period, the
right of employees to strike is further forfeited until such time as
their representative complies with Section 8 (d) (3). I perceive no
warrant, either in the statutory framework or legislative history of
Section 8(d), for such a strained construction. Nor do I find support
for such a view in decisional law.
In construing legislation, we are taught that it becomes "a judicial
responsibility to find that interpretation which can most fairly be
said to be imbedded in the statute, in the sense of being most har-
monious with its scheme and with the general purposes that Congress
manifested." 11 If the plain and unambiguous language of Section
8(d) can in any sense be said to leave -a doubt as to the congressional
purpose in relating the "loss of status" clause exclusively to the 60-
day period specified in Section 8(d) (1) and (4), the pronouncements
of the courts and statements of legislative intent do not.
In defining the duty to bargain imposed upon employers and unions
in Section 8 (d), Congress sought to perfect a balanced accommodation
of the right of employees to engage in concerted activities for their
mutual aid and protection, and the expressed policy of substituting
collective bargaining for economic warfare. In Mastro Plastics Corp.
v. N.L.R.B.,18 the Supreme Court pointed out that it-
is the dual purpose of the Act (1) to protect the right of em-
ployees to be free to take concerted action as provided in Sections
7 and 8(a), and (2) to substitute collective bargaining for eco-
nomic warfare in securing satisfactory wages, hours of work and
employment conditions. Section 8(d) seeks to bring about the
termination,and modification of collective-bargaining agreements
without interrupting the flow of commerce or the production of
goods, while Sections 7 and 8(a) seek to insure freedom of con-
certed action by employees at all times.
To foster a climate in which parties to collective-bargaining agree-
ments could thoughtfully and peacefully forge succeeding agreements
at the bargaining table, Congress fashioned a "natural renegotiation
period" of 60 days prior to the expiration of existing contracts "to
relieve the parties from the economic pressure of a strike or lockout in
relation to the subjects of negotiation." 19 To accomplish this end, it
was made an unfair labor practice for either party to resort to such
action during that period. But Congress also recognized that em-
ployees, in defiance of their union, might disrupt the orderly course
of bargaining by engaging in a strike. It therefore warned that any
employee who ceased work during this insulated period would lose
whatever rights he possessed under the Act.
17 See N L R B v. Lion Oil Company et'al, 352 U S. 282, 297.
18 350 U. S 270, 284.
Ibid at p. 286.
FORT SMITH CHAIR COMPANY 523
The specific relation of the "loss of status"' provision to the 60-day
period set out in Section 8(d) (1) and (4) was not the result of hap-
penstance but of compromise. The opponents of the provision argued
against its inclusion in that section. They contended that any restric-
tion on the right of employees to strike during the renegotiation period
would impose an additional penalty upon them inasmuch as their
bargaining representative was already foreclosed from taking strike
action on pain of committing an unfair labor practice 2° While the
argument did not succeed in eliminating this legislative proposal, it
did provoke the proponents of the clause to restrict its scope to the
60-day insulated period, for the legislative history of the proposal is
literally punctuated with the equation of "loss of status" to that
period.21 Moreover, on the few occasions on which judicial authority
has considered the scope of Section 8(d), it was made clear that the
intrusion which the "loss of status" provision makes on employee strike
action was limited to the 60-day period.22 In view of this, it is not
20S Min Rept . 105, pt 2 , on S. 1126, 80th Cong ., 1st sess , p 21- "Under the
provisions of section 8 both unions and employers are required to bargain collectively A
violation of this requirement is made an unfair labor practice , subject to a cease-and-
desist order from the Board Clearly a strike or lockout during the 60 - day period would
constitute an unfair labor practice . We can see no reasonable grounds for discriminating
against the employees by providing an additional penalty which will cause them to lose
their status as employees under the National Labor Relations Act" And see Congressional
Record , page 4156 , April 25, 1947.
21 See, e.g., S. Rept. 105 on S 1126, 80th Cong, 1st sess, p 24 • "Under this section,
parties to collective agreements in the future would be required to give 60 days ' notice
in advance of the terminal date , if they desire to terminate or amend Should the
parties fail to agree on a new contract in the next 30 days , the party taking the lead in
refusing the old contract has the duty to notify the new Federal Mediation Service of the
impasse Should the notice not be given on time . . it becomes an unfair labor practice
for an employer to change any of the terms or conditions specified in the contract for
60 days or to lock out his employees Similarly, it is an unfair labor practice by a union
to strike before the expiration of the 60-day period Any employee who engagee in a strike
during the 60-day period would lose any rights under sections 8, 9, and 10 of the Wagner
Act, unless and until he is reemployed " [ Emphasis supplied ] H Rept. 510 on H R
3020 , 80th Cong , 1st sess., p 35• "Any employee who engaged in a strike within the
60-day period just described [ in Section 8 ( d)(1) and (4)] lost his status as an employee
of the particular employer for the purpose of sections 8, 9, and 10 of the act " [ Emphasis
supplied ]
23 See N L ii B v Lion Oil Company, et at , supra, at p 303, where Justice Frankfurter,
in it 'separate opinion, observed "The loss-of- status clause alone is more favorable to the
former Board 's view, since it speaks of `the sixty - day period specified in this subsection,'
and, to be effective under the present Board's construction, this clause has to be vndei-
stood as reading 'the period specified in paragraph (4).' Since the problem before us was
not anticipated , it is not surprising that § 8(d)'s legislative history offers little direct
evidence that Congress did more than require a sixty-day waiting period prior to bargain-
ing strikes . When the Joint Committee did note the problem in 1948 , however , it adopted
the present Board's view of the statute and not that of the old Board " [Emphasis sup-
plied.] And see Mastro Plastics Corp , et at. v N L R.B ., supra , where a majority of
the Court , after setting forth the 60-day period in Section 8(d) (1) and ( 4), stated'
"Section 8 ( d) thus seeks , during this natural renegotiation period , to relieve the parties
from the economic pressure of a strike or lockout in relation to the subjects of negotiation
The final clause of § 8(d ) also warns employees that, if they join a proscribed strike, they
shall thereby lose their status as employees . . ." Justice Frankfurter , in his dissenting
opinion in that case , related the " loss of status" provision to the 60-day period when he
noted that "By reason of this new enactment , participating workers would not be en-
gaged in a protected activity under § 7 by striking for the most legitimate economic
reasons during the 60 -day period The strike would be in violation of the provision of
that section which says that during the period there shall be no resort to a strike
[Emphasis supplied ]
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
surprising that my colleagues are unable to point to a single legislative
or judicial reference which would support their assertion that such
strike activity by employees is subject to proscription for a longer
period if the notice to the mediation agencies as required in Section
8 (d) (3) has not been given.
There is, I think, an even more compelling reason why my colleagues'
disregard of the plain words of Section 8(d) should cause concern.
That section seeks to further the dual statutory purpose of protecting
the right of employees to engage in concerted activities and of fostering
orderly collective bargaining, and, we are told, "A construction which
serves neither of these aims is to be avoided unless the words Congress
has chosen clearly compel it." 23 Section 13 of the Act cautions that
"Nothing in this Act, except as specifically provided for herein, shall
be construed so as either to interfere with or impede or diminish in
any way the right to strike, or to affect the limitations or qualifications
on that right." [Emphasis supplied.] The right to strike is, of
course, one of the most fundamental afforded to employees. In light
of the affirmative emphasis which the statute places upon the freedom
of employee concerted action, and the command of Section 13 that the
hand of restraint be placed upon any restriction on such action unless
"specifically provided for," I believe that a limitation on the right of
employees to strike which goes beyond the 60-day period specified in
Section 8(d) (1) and (4) must be more explicit and clear before it can
be said to have been intromitted in Section 8 (d) (3) 24 For, under my
colleagues' "parity of reasoning," the failure of a union to notify the
Mediation Services, either because of inadvertence or in the belief
that collective bargaining can be successfully concluded in the renego-
tiation period, may result in the forfeiture of the right to strike for
weeks, or months, or even years after that period has elapsed. In my
opinion, such n. construction throws the concerted rights of employees
into imbalance under the statutory scheme, and does little if anything
to enhance true collective bargaining. If Congress has sought to
relate the " loss-of-status" provision to each and every notice clause in
Section 8 (d), it could readily have done so. It has not. This is made
abundantly clear by Judge Hays' observation in Independent Union
v. Procter & Gamble, 312 F. 2d 181, 188 (C.A. 2) that "... the re-
23 N.L R.B. v. Lion Oil Company at al, supra, at p. 289.
u See N .L.R B. v. Lion Oil Company at al., supra ; Mastro Plastics Corp . at al. v.
N.L R B, supra, at p. 287 . And see N.L.R B . v. Erie Resistor Corp, 373 U S 221 : "While
Congress has from time to time revamped and redirected national labor policy, its concern
for the integrity of the strike weapon has remained constant . Thus when Congress chose
to qualify the use of the strike , it did so by prescribing the limits and conditions of the
abridgement in exacting detail, e g ., §§ 8(b) (4), 8 ( d), by indicating the precise procedures
to be followed in effecting the interference , e.g, § 10 (j), (k), (1) ; §§ 2806-2810 , Labor-
Management Relations Act, and by preserving the positive command of § 13 that the
right to strike is to be given a generous interpretation within the scope of the labor act.
The courts have likewise repeatedly recognized and effectuated the strong interest of
federal labor policy in the legitimate use of the strike."
FORT SMITH CHAIR COMPANY 525
quirement of paragraph (3) [of 8 (d) ] that Federal and State agencies
be notified is entirely independent of paragraph (4). There is no
suggestion in the text that a failure to meet the notice requirements of
paragraph (3) will have any effect on paragraph (4). The only notice
mentioned in (4) is the 60-day notice of termination."
I am not unmindful of the decisions cited by the majority which
hold that a union which fails to give the 30-day notice required in Sec-
tion 8 (d) (3) thereby violates Section 8 (b) (3) of the Act. Nor have
I disregarded the legislative purpose of requiring such notice-to
invite the special assistance of Federal and State mediation agencies
in the hope that the peaceful settlement of bargaining disputes will
be thereby enhanced. However, I fail to see how these cases support
my colleagues' view that employees lose their status and hence their
right to strike during the period in which their union commits an
unfair labor practice by failing to provide the notices outlined in
Section 8(d) (3). For example, in Retail Clerks International Asso-
ciation, Local No. 1179 (J. C. Pennney Company) ,25 upon which my
colleagues rely, the union had served the 60-day notice upon the
company of its desire to modify its contract. Approximately 4 months
later, the union and all employees struck without notification having
been served on the Mediation Service under Section 8(d) (3). The
Board found that the union violated Section 8(b) (3) by its failure to
comply with this provision. It ordered the union to cease refusing to
bargain with the company by failing to notify the mediation agencies
within 30 days after it had served notice upon the company of its desire
to modify the contract. In effect, the Board ordered the union, as the
exclusive bargaining agent of the employees, to bargain with the
company. In my opinion, the result achieved in Penney and related
cases 26 collides with the position my colleagues have taken here and
presents an obvious anomaly. They now assert that strikers lose their
status as "employees" if they engage in a strike whenever their union
fails to serve the 30-day notice under Section 8(b) (3). It would there-
fore follow that where, as in Penney and the instant case, all em-
ployees engage in a strike under these circumstances, the union thereby
ceases to be the majority representative and the Board is powerless to
perpetuate a bargaining relationship 27 The forced continuation of
such a relationship can only be justified if the union is in fact a ma-
jority union. And this fact can be established only if the strikers re-
main "employees" of the company. It seems to me that Penney and
the related cases more appropriately belong in my camp.
There is yet another reason why I disagree with the result reached
by my colleagues. They assert that, even without regard to the "loss-
25109 NLRB 754.
26 E g , Brotherhood of Locomotive Firemen and Enginemen ( Pheip8 Dodge Corpora-
tion, Morenci Branch ), 130 NLRB 1147.
27 See Sections 8(a) (5) and 9 ( a) of the Act.
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of-status" provision, the strikers were validly discharged because the
strike was unlawful under Section 8(d) (3) and hence the strikers
were engaged in an unprotected concerted activity. This is not a case
where employees have struck in violation of a no-strike agreement
(e.g., Budd Electronics, Inc., 137 NLRB 498) or to compel an em-
ployer to violate the Act (e.g., Mackay Radio and Telegraph Com-
pany, Inc., 96 NLRB 740), decisions to which my colleagues advert
to support their alternative thesis. In those cases, the strike was in
direct support of the illegal object which their union was pursuing.
Here, the employees struck, not in furtherance of the Union's failure to
give the 30-day notice under Section 8(d) (3), but to exert economic
pressure upon Respondent to obtain a lawful collective-bargaining
agreement. Their strike was therefore totally unrelated to their
Union's violation of that section. I fail to perceive how such a strike
acquired a taint of illegality or how the employees' otherwise lawful
conduct can be translated into unprotected concerted activity. If my
colleagues' assertion is pressed to its logical conclusion, then all em-
ployee strike action, regardless of how lawful its object or purpose,
becomes unprotected whenever their union concurrently violates the
Act. I submit that this conclusion lacks support both in the statute
and in decisional law23
Contrary to the majority, I conclude that the "loss of status" clause
in Section 8 (d) applies exclusively to strike action taken by employees
during the 60-day period specified in Section 8(d) (1) and (4). I
would therefore find that, having struck the Respondent after that
period had expired, the economic strikers herein retained their status
as "employees" within the meaning of the Act and did not engage in
unprotected activity, and that Respondent violated Section 8(a) (3)
by discharging them .29 Accordingly, I would order Respondent to
reinstate them and make them whole for any loss of pay they may
have suffered by reason of their discharge. I would also find that,
as the strikers remained employees of the Respondent during the
course of their strike, the Union retained its majority representative
status.30 I would therefore order the Respondent, upon request, to
bargain with the Union, provided the Union comes into compliance
with the notice requirements set forth in Section 8 (d) (3) 31
' in the Local Union 219 and J C Penney cases, upon which the majority reline the
unions were found to have violated Section 8 ( b) (3) by their failure to give the requisite
notices under Section 8(d) (3) While the Board and the Court held that the vnionc had
engaged in unfair labor practices and could be enjoined therefrom , there is no suggestion
that the striking employees , who sought to obtain a lawful labor agreement lost the pro-
tection of the Act by engaging in the strike
=° in view of this finding , I do not reach or consider the additional grounds relied upon
by the Trial Examiner , and rejected by the majority , for finding that Respondent violated
Section 8(a ) ( 3) by discharging the strikers.
m Respondent's sole defence to the refusal - to-bargain charge was predicated upon the
Union ' s loss of majority status occasioned by the discharge of the strikers
31 See Retail Clerks International Association , Local No. 1179 (J C Penney Company),
vnpra ; Brotherhood of Locomotive Firemen and Enginemen (Phelps Dodge Corporation,
Moreno! Branch ), supra
FORT SMITH CHAIR COMPANY 527
INTERMEDIATE REPORT
On June 20, 1961, Local 270, United Furniture Workers of America, AFL-CIO,
herein called the Union, filed charges in the above-entitled matter against Fort Smith
Chair Company, Fort Smith, Arkansas, herein called the Respondent. On December
29, 1961, the General Counsel 1 issued a complaint and notice of hearing alleging
that on or about June 8 2 the Respondent discharged 202 of its employees, and has
since failed and refused to reinstate them, because they joined or assisted the Union
or engaged in concerted activities or participated in a strike It is further alleged
that, since on or about June 9, the Respondent has refused to bargain with the
Union upon request, although the Union was the statutory representative of the
Respondent's employees in an appropriate unit. It is alleged that this conduct
violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as
amended (61 Stat. 136), herein called the Act. Thereafter the Respondent filed
an answer and an amended answer admitting that on and before May 31 the Union
had been the representative of the Respondent's employees in an appropriate unit,
and admitting that from on or about June 9 the Respondent had refused to bargain
with the Union, but denying that on or after that date the Union was the bargaining
representative of the employees. The answer further alleges that the refusal to
bargain was justified by the fact that the Union instigated an illegal work stoppage
in violation of Section 8(d)(3) and (4) of the Act. The amended answer also
admits that, on or about June 8, the Respondent discharged certain employees because
they were engaged "in an unlawful work stoppage." The amended answer further
denied that the Respondent discharged certain other employees.
Pursuant to notice, a hearing was held before Trial Examiner Sydney S. Asher, Jr.,
on February 21 and 22, 1962, at Fort Smith, Arkansas. All parties were represented
and participated fully in the hearing. United Furniture Workers of America, AFL-
CIO, appeared and was permitted to intervene. The General Counsel amended his
complaint to strike therefrom the names of 16 alleged dischargees.3 On or before
April 16, 1962, all parties filed briefs, which have been duly considered .4
Upon the entire record in this case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
There is no dispute, and it is found, that the Respondent is, and at all material
times has been, engaged in commerce as defined in the Act, and its operations meet
the Board's jurisdictional standards; 5 and that the Union is, and at all material
times has been, a labor organization as defined in the Act.
A. Facts
The Respondent and the Union have had bargaining relations since approximately
1940. From the inception of this bargaining relationship, contract negotiations were
conducted by an employer's group called the Furniture Association, of which the
Respondent was a member. In the contracts resulting from such negotiations, each
of the companies comprising the Furniture Association was a named party, and
each signed the agreement. As a result of contract negotiations in 1957, two of
the companies, the Respondent and Ballman-Cummings Furniture Company, jointly
entered into a separate supplementary agreement with the Union described as a
1 The term "General Counsel" Includes the General Counsel of the National Labor Rela-
tions Board and his representative at the hearing.
a All dates herein refer to the year 1961 unless otherwise noted.
3 The remaining 186 alleged dischargees are listed in Appendixes A and B attached
hereto.
+ The General Counsel's brief on page 4 sets forth the details of the Union's membership
meeting of June 1. However, the record shows that this was not evidence but Instead
was merely an offer of proof which was rejected . The General Counsel, on pages 11 and
12 of his brief, also argues that Weeks, a witness for the Respondent, was not credible
because he could not remember Bearce's testimony. But the testimony of Condren, an-
other witness for the Respondent , indicates that Weeks had left the hearing room before
Bearce took the stand.
5 The Respondent is an Arkansas corporation with Its place of business at Fort Smith,
Arkansas, where it Is engaged in the manufacture of furniture. The Respondent annu-
ally ships products valued at more than $1 million from its Fort Smith, Arkansas, plant
directly to destinations outside the State.
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"stipulation ." On October 15, 1958, the Union and the Furniture Association, which
included the Respondent , executed a contract which provided, in part:
ART. XIV-TERMINATION
Section 1. This Agreement ... shall run to and including October 14, 1960.
Either party shall give to the other notice in writing at least sixty (60) days prior
to said expiration date of its desire to amend or cancel this agreement on said
expiration date. In the absence of such notice, this Agreement shall continue
in effect for an additional year.
Prior to October 14, 1960, this contract was reopened by the Union in accordance
with the notice requirements of Section 8(d) of the Act. On October 15, 1960, the
Union and the Respondent agreed by letter as follows:
Upon expiration of the Collective-Bargaining Agreement between Forth Smith
Chair Company and United Furniture Workers of America, it is agreed .. .
that the said agreement shall be continued in full force and effect without any
change whatever, except as hereafter stated, through the 31st day of May 1961.
The only change in said Agreement is [here follows an agreement to increase
base rates in certain instances, and an increase in the Respondent's contribution
to the insurance plan].
Otherwise the contract shall continue in all respects through May 31, 1961....
On February 23, 1961, the parties further agreed by letter in part as follows:
This letter is to confirm an understanding ... reached in connection with the
negotiation of the current contract which is to expire June 1, 1961. In view
of the fact that ... the contract by its terms expires June 1, [here follows an
agreement regarding vacation pay].
On March 27, a representative of the Union wrote to the Respondent in part as
follows:
On behalf of our organization, it is our desire to cancel the labor agreement
between your Company, and our organization and to negotiate a new contract
to take the place of the contract expiring June 1, 1961.
We herewith give you 60 days notice as provided in the Taft-Hartley Bill, and
we also, hereby give you 60 days notice as provided for in Article XIV of the
existing labor contract . . . that the Union will consider the contract as ter-
minating on ... June 1, 1961. The Union will keep in effect the existing terms
and conditions of employment until the expiration date of said contract, namely
June 1, 1961.
It is our hope that we will have no difficulty in reaching a new and modified
agreement.
Prior to June 1, neither the Federal Mediation and Conciliation Service offices in
St. Louis, Missouri, and Little Rock, Arkansas, nor the Arkansas Department of
Labor received notices from the Union that a dispute existed between the Respondent
and the Union in regard to the contract which was to expire on May 31.
The parties held negotiating sessions on May 29 and 31. The Union's chief spokes-
man was Louie Campbell, its business representative. The main spokesmen for the
Respondent were Edgar E. Bethel], its attorney, and John Ayers, its secretary-
treasurer. Each side presented its demands. Among the Respondent's proposals
was to add a phrase reading: "No employee has a vested right in any level of incentive
earnings." This evoked a great deal of discussion. By noon on May 31 (1) the Re-
spondent had agreed to the Union's demand that monther-in-law and father-in-law
should be added to the definition of family in the holiday clause; (2) the Union had
agreed to one of the Respondent's demands; 6 (3) the Union had presented its
"money demands" of a wage increase of 2 cents per hour "across the board" and an
extra holiday, Christmas Eve; and (4) the Respondent had rejected these "money
demands" on the ground that it had been losing money for over 4 years. After a
luncheon recess bargaining resumed, and Campbell announced that the Union was
withdrawing its "money demands" and offered to extend the "old" contract for
O According to Campbell this was an addition to the contract providing that an em-
ployee should notify the Respondent, if possible, if he was not going to be able to report
for work. Bethell and Ayers testified that this was a change in the method of presenting
a new standard to an employee. I deem it unnecessary to resolve this conflict.
FORT SMITH CHAIR COMPANY 529
another year, with the two changes already agreed upon.? After another recess, the
Respondent presented six demands. These included the two changes already agreed
upon, the controversial "no vested rights" clause, and several others. Campbell
importuned the Respondent's representatives to withdraw the "no vested rights"
clause on the ground that it might result in lower earnings and the employees would
not accept it, especially when they had dropped their "money demands." Ayers was
adamant on this subject, insisting that the Respondent's perilous financial position
required that it "had to have some help before we could enter into a contract." 8
After further discussion of the "no vested rights" clause, Ayers told Campbell "this
was it, that's all there was, and to take it to the people and let them vote on it." 9
Campbell replied that he could not recommend the Respondent's proposition to the
Union's members.10 The meeting then ended.
On the following morning, June 1, the Union held a membership meeting. A
secret ballot was taken on the question: "Do you wish to accept the Company offer?"
The result was overwhelmingly "No." On the same day most, if not all, of the
Respondents' production employees struck the plant, and picket lines were estab-
lished; the plant ceased production operations.
Another negotiating meeting was held on June 7 which was attended by a repre-
sentative of the Federal Mediation and Conciliation Service. The parties' positions
remained about the same. The Union's negotiators renewed their offer to extend
the "old" contract for another year, with the changes already agreed to, but the Re-
spondent refused. There was more discussion of the "no vested rights" clause, and
Campbell asked "why didn't they just forget it . . . and then there would be no
strike." Bethell offered to revise or rewrite the objectionable clause, and Campbell
replied: "If you want to water it down some . . . maybe . . . we might buy it."
A meeting was then scheduled for the following day.
At the meeting of June 7 Bethell learned for the first time that notices of the ex-
istence of a dispute had not been received by the Federal Mediation and Conciliation
Service. On June 8 Ayers sent a telegram to Campbell which read:
Because of the unlawful character of the present work stoppage at Fort Smith
Chair Company you are advised that the company declines to continue negotia-
tions with Local 270 of the United Furniture Workers and that the employment
of all people who have participated in the unlawful strike is terminated.
There were no further negotiations. On the same day the Respondent sent to
each production employee who had been scheduled to work on June 1 (listed in
Appendix A attached hereto) a letter which read, in part: "As a result of your par-
ticipation in the illegal work stoppage . . . your services with this Company are
terminated." At the same time the Respondent sent to each production employee
who had not been scheduled to work on June 1 (listed in Appendix B attached hereto)
a letter which read, in part:
On June 1 our employees began a work stoppage. Our records reflect that you
were not scheduled to be at work on that date. We, therefore, do not know
whether you are participating in the strike. . . If you have not reported for
work, or have not made arrangements for a leave of absence on or before
Tuesday, June 13, we will assume that you are taking part in the strike, and
your employment with the Company will be terminated.
On June 13, the plant resumed production operations and new employees were
hired. Thereafter the Respondent made certain changes in its wage structure and
incentive system without consulting the Union. The picketing continued through
7 This finding is based upon the credited testimony of Bethell and Ayers, corroborated
by that of two members of the Respondent ' s bargaining team. Campbell testified that he
offered an extension of the old contract with or without the two modifications already
agreed upon. In this he was corroborated by two members of the Union's negotiating
committee. Although all witnesses impressed me as sincere , I consider the memory of
Bethell and Ayers on this subject more accurate than that of Campbell
8 The quoted language is from Ayers' testimony . Bethell testified that the Respondent's
spokesmen told the union committee that they regarded these clauses as "essential to
having a contract."
9 The General Counsel 's witnesses testified that Ayers added "take it or leave it" and
pounded the table ; the Respondent's witnesses denied that Ayers used these words or that
be pounded the table . I deem it unnecessary to resolve this conflict.
10 The Respondent's witnesses testified that Campbell added that if the Union' s member-
ship rejected the Respondent 's proposition "we are going to start right back where we
started and our offer is withdrawn ." I do not consider it necessary to make a finding with
regard to this alleged remark.
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
December 14. On December 15 Campbell wrote to the Respondent notifying it that
the strike had been terminated and applying unconditionally for reinstatement on
behalf of all the strikers. None of the strikers has been reinstated, but some of them
have returned to work as new employees. (See Appendixes A and B.)
B. Contentions of the parties and the issue
The General Counsel maintains that the Union's strike was not designed to "ter-
minate or modify" the contract and that therefore notice to the Federal Mediation
and Conciliation Service under Section 8(d)(3) of the Act was unnecessary. It
follows, urges the General Counsel, that the strike was an economic strike protected
by Section 7 of the Act, and the discharges of 186 employees for engaging in the
strike violated Section 8(a)(3) of the Act. The General Counsel also takes the
position that the Respondent's telegram of June 8 constituted a refusal to bargain
with the statutory representative violative of Section 8(a) (5) of the Act. The Union
and the Intervenor agree with the General Counsel, but go even further: they con-
tend that the Respondent did not bargain in good faith during the sessions of May 29
and 31 and that therefore the strike was an unfair labor practice strike, to which
Section 8 (d) (3) of the Act does not apply.
The Respondent, on the contrary, insists that Section 8(d)(3) of the Act is ap-
plicable, and therefore the failure of the Federal Mediation and Conciliation Service
to receive notice from the Union of the existence of a dispute made the work stoppage
an unprotected strike. Under the last sentence of Section 8(d) of the Act, urges the
Respondent, each individual who participated automatically lost his or her "status
as an employee" and it follows that neither the discharges nor the refusal to bargain
thereafter were violative of the Act.
It can thus be seen that the principal issue herein is a narrow one: Under the cir-
cumstances here present did the failure of the Federal Mediation and Conciliation
Service to receive from the Union the notice described in Section 8(d)(3) of the
Act remove the strike from the protection of Sections 7 and 13 of the Act, and
automatically deprive the participants of their status as employees?
C. The discharges
1. The purpose of the strike
On the entire record I am convinced, and find, that the parties bargained in good
faith ii on May 29 and 31 but were unable to reach agreement on matters which
were mandatory subjects of collective bargaining. At the end of the May 31 session
the Union's negotiators were willing to extend the old contract for another year,
with the two relatively minor changes already agreed to. But the Respondent in-
sisted upon "relief" in the form of the addition of the "no vested rights" clause and
other changes, including a restriction upon holding grievance meetings during work-
ing time. The Union's representatives resisted these changes. I am also convinced,
and find, that what the Respondent was seeking constituted modification of the old
contract.12 Furthermore, there is abundant evidence that the major stumbling block
to agreement was the Respondent's adamant insistence upon adding the "no vested
rights" clause, and the Union's equally adamant refusal to add such a clause. This
is not said critically, for unquestionably the parties had every legal right to so insist.
But there is in my opinion no escape from the conclusion that the Respondent's de-
mand, if acceded to, would have materially altered the contract, as earlier interpreted
by the arbitrator.13 In sum, then, by the close of the May 31 meeting, the Union
11 The contrary contention of the Union and the Intervenor is rejected.
12 Ayers testified as follows:
TRIAL EXAMINER: In your opinion was the Company's attempt to get the grievance
procedure after working hours an attempt to get a change in the contract''
The WITNESS: It was a slight change, sir.
TRIAL EXAMINER: It wasn't a change of condition, but it was a limitation, was it
not, that wasn't in the old contract?
The WITNESS: That is correct, sir . . .
1s The fact that the Respondent had requested the arbitrator to reconsider does not aid
the Respondent, because the contract provides: "All decisions of the Arbitrator shall be
final, conclusive and binding upon all parties." [Emphasis supplied ]
FORT SMITH CHAIR COMPANY 531
was willing to renew the old contract with changes already agreed upon, but the
Respondent was not. The Respondent wanted additional changes, of a material
nature, and to this the Union refused to agree.
Let us turn, then, to the strike. The vote of the Union's membership rejected
the Respondent's final offer. Since the contract therefore expired, this was treated
as a strike vote. In the light of the above, I conclude that the purpose of the strike
from its inception was to force the Respondent to abandon its insistence upon sub-
stantial changes in the contract, particularly the "no vested rights" clause 14 This
was still the purpose on June 7, when Campbell suggested that the Respondent "for-
get" its demand for the "no vested right" clause and added "then there would be no
strike." It was thus the Respondent, rather than the Union, which was bent upon
modifying the old agreement. Indeed, the Respondent unilaterally did so after
June 13.
2. Conclusions
Section 8(d) of the Act, as amended, provides, in part, as follows:
. where there is in effect a collective-bargaining contract covering employees
in an industry affecting commerce, the duty to bargain collectively shall also
mean that no party to such contract shall terminate or modify such contract,
unless the party desiring such termination or modification-
(1) serves a written notice upon the other party to the contract of the
proposed termination or modification sixty days prior to the expiration
date thereof. .. .
(3) notifies the Federal Mediation and Conciliation Service within
thirty days after such notice of the existence of a dispute, . . . and
(4) continues in full force and effect, without resorting to strike or
lockout, all the terms and conditions of the existing contract for a period
of sixty days after such notice is given or until the expiration date of such
contract, whichever occurs later:
Any employee who engages in a strike within the sixty-day period specified in
this subsection shall lose his status as an employee of the employer engaged in
the particular labor dispute, for the purposes of sections 8, 9, and 10 of this
Act, as amended... .
The notice requirements of Section 8(d)(1) and (3) do not apply to every strike.
It has been held that they are inapplicable to unfair labor practice strikes.15 Nor do
they apply to every economic strike, as the Respondent seems to argue. Of these
requirements, the Supreme Court said in the Mastro Plastics case:
The Board reasons that the words which provide the key to a proper inter-
pretation of § 8(d) with respect to this problem are "termination or modifica-
tion." Since the Board expressly found that the instant strike was not to ter-
minate or modify the contract . . . the loss-of-status provision of § 8(d) is not
applicable . We sustain that interpretation.16
Here, as in Mastro, the object of the strike was "not to terminate or modify" the
contract. It follows that here, as in Mastro, the loss-of-status provision of Section
8(d) of the Act does not apply. The strikers were therefore engaged in a lawful
economic strike protected by Sections 7 and 13 of the Act. It was accordingly a
violation of Section 8(a) (1) and (3) of the Act for the Respondent on June 8, 1961,
and later, to discharge the employees listed in Appendixes A and B attached hereto
because they participated in such concerted activity. Moreover, these discharges
(along with the refusal to bargain discussed below) unlawfully prolonged the strike
and converted it from an economic into an unfair labor practice strike.
14 Although the Union ' s position on May 31 was that it would renew the old contract
with the two changes already agreed to, it cannot seriously be contended that it struck
to obtain these two minor changes. A union does not strike to obtain terms to which
the employer has already agreed.
15 Mastro Plastics Corp., et al . v. N L R B , 350 U.S. 270.
16 Mastro Plastics Corp , et al. v . N L.R.B., supra, at 286.
717-672-64-vol. 143-35
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The refusal to bargain
1. The appropriate unit
The complaint alleges , the answer admits, and it is found that at all material times
all the Respondent's production and maintenance employees, excluding office clerical
employees, foremen, inspectors who do no production work, timekeepers, salesmen,
over-the-road truckdrivers, and supervisors as defined in the Act constitute a unit
appropriate for collective bargaining. This is the same unit agreed upon by the
parties in their contract of October 15, 1958.
2. The Union's majority status
The complaint alleges that the Union is and at all material times has been the
statutory bargaining representative of the employees in the unit described above. The
amended answer admits that the Union was such representative on and before May 31,
but denies that it remained in this status on or after June 1. The Respondent's theory
seems to be that the Union's failure to comply with the notice requirements of Sec-
tion 8(d)(3) and (4) of the Act caused those who participated in the strike which
began on June 1 to lose their status as employees; hence the Union thereby lost its
majority status. However, it has been found above that the loss-of-status provision
of Section 8(d) of the Act did not apply to this strike. It follows that the Union
never lost the majority status it admittedly enjoyed on May 31.
3. The demand and the refusal
The complaint alleges that, since on or about June 9, the Union has requested the
Respondent to bargain regarding the working conditions of the employees in the
above-described unit, but that the Respondent has refused since then to recognize
or bargain with the Union. The answer denies that the Union made any demand
for bargaining since on or about June 9, but admits that thereafter the Respondent
refused to bargain.
The record shows that the parties were in the midst of bargaining and had a
session scheduled for June 8. The Respondent's telegram of that date, quoted above,
abruptly broke off negotiations and automatically canceled the scheduled session. A
reading of this telegram makes it abundantly clear that any further request for recog-
nition or bargaining would have been futile. Under these circumstances, no new
demands by the Union were necessary to bring into play the statutory duty of the
Respondent to continue negotiations then in progress.17 It is accordingly found
that by dispatching the telegram of June 8 to the Union and by thereafter unilaterally
changing the working conditions of its employees without prior consultation with
the Union, the Respondent violated Section 8(a)(1) and (5) of the Act.
THE REMEDY
In my opinion, the unfair labor practices found stemmed not from a rejection of
the collective-bargaining principle (there had been bargaining for many years) but
solely from an interpretation of Section 8(d) of the Act which I have found to be
erroneous. I therefore am convinced and find that there is here no danger that the
Respondent will commit other unrelated unfair labor practices in the future. Ac-
cordingly, it will only be recommended that the Respondent cease and desist from
the unfair labor practices found, or any like or related unfair labor practices.
Affirmatively it will be recommended that the Respondent, upon request, bargain
with the Union as the exclusive representative of the employees in the appropriate
unit, and if an agreement is reached embody such understanding in a signed contract.
It will further be recommended that the Respondent offer to the employees listed in
Appendixes A and B immediate and full reinstatement to their former or substan-
tially equivalent jobs, without prejudice to their seniority or other rights and privi-
leges, discharging if necessary any employee hired after June 8, 1961, when the eco-
17 No impasse had been reached then because the Respondent had agreed to rewrite the
clause in question Even if an impasse had been reached which conceivably might have
permitted the Respondent to break off negotiations, this was not the reason set forth in
the telegram. And while the telegram is phrased only in terms of declining to continue
negotiations it is clear from its tenor that it constituted more, namely a refusal to
recognize the Union's majority status, which of course is not justified by an impasse.
FORT SMITH CHAIR COMPANY 533
nomic strike was converted into an unfair labor practice strike.18 It will further be
recommended that the Respondent make each of them whole for any loss of pay he
or she may have suffered by paying to him or her a sum of money equal to that
which he or she would normally have earned from December 14, 1961, the date of
the unconditional offer to return to work, to the date of the offer of reinstatement, less
his or her net earnings during such period. The backpay provided for herein shall
be computed in a quarterly manner, as established by the Board.19 It will further be
recommended that the Respondent preserve and make available to the Board or
its agents all records needed to determine the amount of backpay due hereunder,
and post the usual notices.
The General Counsel requests that the Respondent additionally be required to re-
imburse the discharged employees plus interest computed at the rate of 6 percent
per annum, commencing with the end of the first calendar quarter in which the
discriminatory discharges were committed and each succeeding quarter until pay-
ment therefor is made or tendered. The General Counsel's brief convinces me that
the request is a reasonable one, and I accordingly recommend that the Respondent
reimburse the dischargees for such interest.
On the basis of the above findings of fact and upon the entire record in this case,
I make the following-
CONCLUSIONS OF LAW
1 Fort Smith Chair Company is, and at all material times has been, an employer
within the meaning of Section 2(2) of the Act.
2 Local 270, United Furniture Workers of America, AFL-CIO, is, and at all
material times has been, a labor organization within the meaning of Section 2(5)
of the Act.
3. All production and maintenance employees of the Respondent, excluding office
clerical employees, foremen, inspectors who do no production work, timekeepers,
salesmen, over-the-road truckdrivers, and supervisors as defined in the Act, consti-
tute a unit appropriate for the purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
4. Local 270, United Furniture Workers of America, AFL-CIO, was on June 8,
1961, and at all times since has been, the exclusive representative of the employees
in the above-described unit for the purposes of collective bargaining within the mean-
ing of Section 9(a) of the Act.
5. By withdrawing recognition from Local 270, United Furniture Workers of
America, AFL-CIO, as bargaining agent for the employees in the above-described
unit on and after June 8, 1961, and by thereafter unilaterally changing the working
conditions of employees in the above-described unit without prior consultation with
the above-named labor organization, thereby failing and refusing to bargain collec-
tively with the said labor organization as the exclusive representative of the em-
ployees in the above-described unit, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a) (5) of the Act.
6 By discharging the employees listed in Appendixes A and B, thereby discrim-
inating in regard to the hire and tenure of employment of its employees and dis-
couraging membership in a labor organization, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the
Act.
7. By the above-described conduct the Respondent has interfered with, restrained,
and coerced its employees in the exercise of rights guaranteed in Section 7 of the
Act and thereby has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
8. The above-described unfair labor practices, occurring in connection with the
Respondent's operations, 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 thereof, and constitute unfair
labor practices affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
[Recommended Order omitted from publication ]
18 See General Drivers and Helpers Union , Local 662 , etc v N L R B (Rice Lake
Creamery Company, Intervenor ), 302 F. 2d 908 (C.A D C )
'I F. W Woolworth Co , 90 NLRB 289. In calculating backpay , whether to apply the
wages and incentive standards existing on May 31, 1961 , or those put into effect uni-
laterally by the Respondent after June 13, 1961, is a matter for determination at the
compliance stage of this proceeding.
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
PERSONS WHO RECEIVED LETTERS FROM RESPONDENT DATED JUNE 8, 1961
Charlie Abney Virgil Harvell Clarence Robertson
Ervin Adkins Ruth Hassell Eddie Robison
Clifford Aldridge Ilarlen Hawkins Jerry Rogers
Robert Anderson Herbert Hawkins I William Rucker
Frank Ballard Gerald Hay Lucille Ruckman
Travis Ballard 1 L. C. Hayes Orville Satterfield
James Barker Billy Hesson 1 Eugene Schmalz
Retha Barnard E. C. Hesson Larry Seabolt
Charley Barnes Fula Hopkins 1 Olen Shafer
Eunice Bartlett Leonard Howard Ursula Shields
Jean Battles Cecil Hubbard Jack Short
Mildred Battles 1 James Hulsey Martha Sloss
Raymond Battles Mildred Hunter Richard Sloss
Johnny Beagle Aaron Hydge J C. Small
Clyde Bearce Bessie Jiles Dorothy Smith
Harrison Beckham Carl Jones Bobby Sparkman 1
Everett Been Lennie Keck Donald Spradling
Billy Belt Jimmy Kinnerson Jewell Stallings
Garrette Belt Roy Kirby Oscar Stapp
Omer Blythe Henry Kusel Cecil Stephens 1
Conway Bowlet Alfred LaRue Harry Stephens
Roland Boyette Clyde LaRue Joe Stevens
Lee Brewer Jerry LaRue Henry Stewart
Connie Brown Lester Lovell Louis Stroud'
Irving Brown Verna Lovell Charles Swaim
Perry Brunk Leonard Mankins Bertie Sweet
Freddy Cagle Mary Martin Willie Sweet
J. E. Carr Jimmy Matlock Ferrell Tabor
Jennie Casto Orlan Matlock John Thomas
E. R. Chadwick John Mayfield 1 Claudie Tindall 1
Charles Chapman Martha McClendon Pleasant Todd
D. C. Cherry Elzie McDonald Martin Toon
Jessie Coppinger Rachel Meadors Elsie Treat
Jim Crabtree V. J. Mean Zady Tucker
Agnes Darter Dorothy Milburn Frank Vann
Dwain Derrick Earl Moore Clifford Vaughan
Will Doss Corthel Mongold J. L. Vaughan
Velma Doyel Clinton Morris John Vaughan
Marvin Durham 1 Winfred Nelson Ulysses Vaughan
Tracy Durham Kenneth Nena Jewell Vernon
Floyd Dustman Darrell Newton Jessie Wadkins
Winfred Dustman Lilly Ohm N. S. Walkord
Susie Earls William Olander Grace White
Ray Easter Tommy Orsborne Jess White
Ison Edwards Raymond Patterson Charles Whithurst
Noah Edwards Eula Mae Pennington George Whitledge
William Eiland Susie Pinkerton 1 Roy Whitsett
Billy English Henry Pitchford Harrison Willhite 1
Emmett Fleetwood Agnes Pool1 Herbert Willhite
Frankie Freeman Jasper Potts James Williams
Russell Freeman Charles Proctor Charles Wilson
Elizabeth Friga William Radcliff Jack Wilson
Darrell Gallihar Esther Reavis Johnny Wilson
Goldie Gilbert Walter Reed Riley Wilson
Johnnie Gilbert William Rhodes Vesta Wilson
Otis Gilliam Clifford Ridenoure Lawrence Woodward
Thomas Green J W. Riggs Eula Belle Young
Gladys Harman Leo Roberts Harrison Young
Jimmy Harris
1 Returned to work in August, September, or December 1961 as a new employee.
LAWN-BOY DIVISION OUTBOARD MARINE CORP. 535
APPENDIX B
PERSONS WHO RECEIVED LETTERS FROM RESPONDENT DATED AFTER JUNE 8, 1961
(Date letter was received is indicated after each name)
Olen Ballard----------- June 28, 1961 Essie Rhodes ----------June 27, 1961
Alex Banning----------July 17, 1961 Mary Scholze----------June 14, 1961
Audra Dustman 1-------June 27, 1961 Charles Spangler--------June 27, 1961
Martin Hatley---------- July 21, 1961 A. L. Spence ---------- Nov. 16, 1961
Jimmy Hix 2.......... . July 17, 1961 Buster Whisenhunt------Sept . 21, 1961
Aline Petree----------- June 14, 1961
1 Returned to work on December 26 , 1961, as a new employee.
2 Name spelled as amended at the hearing.
Lawn-Boy Division Outboard Marine Corp. and International
Union, United Automobile , Aerospace and Agricultural Imple-
ment Workers of America (UAW), AFL-CIO, and Local Union
683. Case No. 17-CA-,3006. June 208, 1963
DECISION AND ORDER
On April 1, 1963, Trial Examiner George A. Downing issued his
Intermediate Report in the above-entitled proceeding, finding that,
except for an isolated, violation of Section 8 (a) (1) too minor in char-
acter to warrant issuance of a remedial order, the Respondent had not
engaged in unfair labor practices as alleged in the complaint. Ac-
cordingly, he recommended that the complaint be dismissed in its en-
tirety, as set forth in the attached Intermediate Report. Thereafter,
the General Counsel, the Respondent, and the Charging Party filed
exceptions to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom 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
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
[The Board dismissed the complaint.]
1 The Trial Examiner found, and we agree , that the Respondent did not refuse to fur-
nish the Union with certain information which the Union requested during bargaining
negotiations. In so finding, the Trial Examiner relied , in part, on testimony by W. C. James,
Respondent' s director of industrial relations, to the effect that the testimony of the
Union's witnesses at the hearing "was his firdt knowledge that they questioned the correct-
ness of any of the information which he supplied." As this testimony was stricken from
the record , we do not rely on it in adopting this finding, which is supported by other
evidence.
143 NLRB No. 57.