General Clay Products Corp.

National Labor Relations Board - Board Decisions

Mar 31, 1992

306 N.L.R.B. 1046 (N.L.R.B. 1992)

1046
306 NLRB No. 212
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The motion is in effect a motion to reopen the record for the in-
troduction into evidence of Arbitrator Hyman Cohen’s July 29, 1991
clarification of his March 21, 1989 award. The award itself is in evi-
dence. The motion is denied on the grounds that the evidence sought
to be introduced would not require a result different from the one
we reach here. Board’s Rules and Regulations, Sec. 102.48(d)(1).
2 The Charging Party has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
We agree with the judge that the Respondent did not violate the
Act through its refusal to restore seniority to the lawfully discharged
illegal strikers on their reinstatement to employment by the Respond-
ent pursuant to the arbitrator’s award. In particular, we agree with
the judge that the award did not implicitly require the restoration of
such seniority. We do not pass on the judge’s discussion of what
result he might have reached if the award had required the restora-
tion of such seniority.
3 See Olympia Plastics Corp., 266 NLRB 519, 542 fn. 74 (1983);
American Postal Workers, 250 NLRB 761 fn. 1 (1980) (‘‘other em-
ployees’’ not included in make-whole remedy where they were not
named in the complaint and their status was not litigated at the hear-
ing).
General Clay Products Corp. and Aluminum, Brick
and Glass Workers International Union, AFL–
CIO–CLC and its Local 830. Case 9–CA–26577
March 31, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On April 26, 1991, Administrative Law Judge Irwin
Kaplan issued the attached decision. The Charging
Party filed exceptions, a supporting brief, and a motion
to remand the case to the judge. The Respondent filed
an answering brief to the exceptions, and a brief in op-
position to the motion.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order.
1. The judge found, inter alia, that the $100 Christ-
mas bonus that the Respondent unilaterally gave to all
strike replacement employees in December 1988 was
not a mandatory subject of bargaining, and that the Re-
spondent therefore did not violate Section 8(a)(5) of
the Act, as alleged, by its grant of this bonus. The
judge did find, however, that the bonus was
discriminatorily motivated, in violation of Section
8(a)(3) of the Act. There are no exceptions to either
the dismissal of the 8(a)(5) allegation or the finding of
the 8(a)(3) violation, so the unfair labor practice issues
raised by these matters are not before us.
The Charging Party has excepted to the judge’s rec-
ommended remedy for the unlawful grant of a $100
bonus only to the strike replacements. The Charging
Party asserts that the Respondent should be required to
pay $90 both to employees at its other plants who re-
ceived the customary $10 Christmas bonus, and to
strikers engaged in a strike in violation of the contrac-
tual no-strike clause, which was in progress when the
bonus was paid.
We find no merit in the Charging Party’s exception
to the judge’s recommended remedy. With respect to
the strikers, the General Counsel has not alleged that
the work stoppage was protected or that the Respond-
ent violated the Act by discharging them. Although the
arbitrator later ordered that the employees be rein-
stated, we have no basis in the record for finding that,
at the time the bonus was awarded, the illegal strikers
were employees of the Respondent, for the purposes of
Sections 8, 9, and 10 of the Act pursuant to Section
8(d), and thus entitled to any bonus at all. With respect
to the employees at the Respondent’s other plants, we
note that the complaint does not allege, and the parties
did not litigate, that these employees were adversely
affected by the Respondent’s grant of an augmented
bonus to the replacements.3
2. The judge also found, inter alia, and we affirm,
that the Respondent did not unlawfully withdraw rec-
ognition from the Union. In this regard, we agree with
the judge that the April 19, 1989 petition showing that
a majority of the employees did not wish to be rep-
resented by the Union was not tainted by the Respond-
ent’s failure to comply with the Union’s March 13,
1989 request for a current seniority list, which was
found (and there is no exception) to be unlawful.
The Charging Party argues in its exceptions that as
a consequence of not getting the seniority list in
March, it was effectively denied access to the employ-
ees, thus stripping the April antiunion petition of any
validity as an objective basis for the Respondent’s as-
serted reasonable doubt about the Union’s continued
majority status.
We find no merit in this argument. First, there is no
showing that in requesting a current seniority list the
Union was in effect also requesting employee address-
es or telephone numbers to enable it to establish con-
tact with the employees. The Union made no express
request for that additional information, and no such re-
quest can reasonably be implied from the Union’s
March 13 letter, which simply asked for ‘‘a current se-
niority list’’ for each of the Respondent’s plants rep-
resented by the Union, including the Diamond plant in-
volved in the instant proceeding. In its March 13 re-
quest, the Union was seeking an updated version of the
seniority list attached to the collective-bargaining
agreement. That attached list does not contain em-
1047GENERAL CLAY PRODUCTS CORP.
4 The Respondent had not yet posted the most current updated se-
niority list as of the date of the Union’s March 13 request for a
copy, because it was waiting to see whether the soon-to-be-issued
arbitral award would order reinstatement and restoration of seniority
of the discharged strikers, as expressly requested in the grievance.
The arbitral award that issued about a week later did order reinstate-
ment, but was silent as to restoration of seniority.
ployee addresses or phone numbers, but contains only
each employee’s payroll number, name, date of hire,
and job classification. Moreover, the record shows that
these seniority lists are updated and posted at each
plant on a quarterly basis, and that copies of the posted
quarterly list are available to the Union on request.4
Further, there is no showing that the Respondent in
any way restricted the Union in any attempts it might
have made to learn the identity of, or to contact, the
employees at any time during the entire 12-month pe-
riod that the Union represented them—including dur-
ing the 9 months preceding the Union’s March 13 re-
quest for the current updated seniority list in question.
Thus, we find that the Respondent’s unlawful failure
to provide the Union with the requested updated cur-
rent seniority list of Diamond employees in March
1989 did not serve to deprive the Union of access to
these employees, and consequently did not undermine
the reliability of the employees’ April 1989 petition re-
jecting the Union as their bargaining representative.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, General Clay Products
Corp., Nelsonville, Ohio, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
Damon W. Harrison Jr., Esq., for the General Counsel.
Stuart M. Gordon, Esq. and Donald Slowik, Esq. (Porter,
Wright, Morris & Arthur), of Columbus, Ohio, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
IRWIN KAPLAN, Administrative Law Judge. This case was
heard in Athens, Ohio, on November 15 and 16, 1989, and
January 9 and 10, 1990. The underlying charges were filed
by Aluminum, Brick and Glass Workers International Union,
AFL–CIO–CLC and its Local 830 (collectively the Charging
Party or the Union), on June 21, 1989, alleging that General
Clay Products Corp. (Respondent or General Clay), engaged
in conduct violative of Sections 8(a)(1), (3), (5) and 8(d) of
the National Labor Relations Act (the Act). These charges
gave rise to a complaint and notice of hearing dated August
4, 1989.
In essence, it is alleged that Respondent engaged in certain
discriminatory conduct because a group of discharged strik-
ing employees had successfully pursued their terminations
under the grievance procedure of the collective-bargaining
agreement through arbitration. In May 1988, all the unit em-
ployees then working had engaged in a strike in violation of
a no-strike clause in the then-current collective-bargaining
agreement. The Respondent terminated the strikers and hired
permanent replacements. On March 21, 1989, the arbitrator
issued his award and, while finding that the striking employ-
ees engaged in an illegal strike, he ordered them reinstated
but without backpay. Although, the arbitrator was made
aware that the Respondent had hired replacements, he did not
address their status.
More particularly, it is alleged that on or about April 19,
1989, the Respondent had unlawfully terminated the seniority
rights of the former strikers, discriminatorily created a sec-
ond shift for those employees, changed the pay rate for em-
ployee Roger Moore when he performed ‘‘transfer work,’’
changed the manner of calculating piece rate pay for unit
employees classified as drawers and, on or about June 5,
1989, changed the starting time for the second-shift rein-
stated strikers. Further, it is alleged that on or about Decem-
ber 19, 1988, the Respondent unlawfully granted the replace-
ment employees a $100 Christmas bonus. In connection with
the aforenoted alleged misconduct, it is also alleged that the
Respondent failed to provide prior notice to the Union and
denied it, as the exclusive bargaining representative, an op-
portunity to negotiate over such mandatory subjects of bar-
gaining. It is also alleged that on certain dates in June 1989,
the Respondent unlawfully laid off or terminated the rein-
stated former strikers from the second shift. In short, it is al-
leged that the Respondent, by the aforenoted acts and con-
duct, violated Section 8(a)(5), (3), and (1) of the Act.
Still further, it is alleged that since on or about March 13,
1989, the Respondent independently violated Section 8(a)(5)
of the Act, by failing to provide the Union a requested se-
niority list, allegedly relevant and necessary to fulfill its bar-
gaining responsibilities and, that the Respondent, on or about
May 3, 1989, unlawfully withdrew recognition from the
Union.
The Respondent filed an answer conceding, inter alia, ju-
risdictional facts, the supervisory and agency status of certain
individuals, the Union’s status as a labor organization, the
appropriate collective-bagaining unit and, that since at least
June 1, 1986, through May 31, 1989, the Union had been the
designated exclusive collective-bargaining repesentative of
the alleged appropriate unit and had been recognized as such
by the Respondent. In this latter regard, it is conceded that
recognition had been embodied in successive collective-bar-
gaining agreements, the last of which, was effective by its
terms from June 1, 1986, through May 31, 1989.
The Respondent does not dispute, inter alia, that it had
taken away the seniority from all striking employees; that it
had given all replacement employees a $100 Christmas gift;
that it had changed the starting time for the former reinstated
strikers on the second shift; and, that it withdrew recognition
from the Union when the last collective-bagaining agreement
terminated. However, it raised a number of affirmative de-
fenses, including (asserted) legitimate business reasons for its
acts and conduct and denied that it committed any unfair
labor practices. Principally, the Respondent relies on the fact
that the strikers were unprotected by striking in the face of
the no-strike provision of the then-current collective-bargain-
ing agreement. As noted above, the arbitrator also ruled that
1048 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In issue are also whether deferral is required to the parties’ griev-
ance-arbitration procedures as well as the extent the arbitrator’s
award impacts on the instant allegations.
the employees were illegal strikers but ordered them rein-
stated without backpay. According to the Respondent, it ne-
gotiated with the Union how the arbitrator’s award was to be
implemented and that the Union agreed to having the illegal
strikers reinstated on or about April 19, 1989, to a newly cre-
ated second shift, as proposed by the Respondent. The Re-
spondent denied that it terminated the reinstated employees
2 months later, contending that they were laid off because
of a substantial drop in sales.
As for withdrawing recognition from the Union, the Re-
spondent relies on a petition, signed by a majority of its em-
ployees (all replacements) on April 18 and 19, 1989, that
they no longer wanted the Union to represent them.
Based on the entire record, including my observations of
the demeanor of the witnesses as they testified, and after
careful consideration of the posttrial briefs, I find as follows:
Issues
The principal issues are:
1. Whether, on or about December 19, 1988, the Respond-
ent violated Sections 8(a)(1), (3), and (5) and (8)(d) of the
Act, by granting replacement employees at its Diamond plant
a $100 Christmas bonus?
2. Whether, on or about April 19, 1989, the Respondent
violated Sections 8(a)(1), (3), and (5) and 8(d) of the Act by
(a) creating a second shift of employees in the unit at its Di-
amond plant; (b) terminating unit employees’ seniority rights
under the then-existing collective-bargaining agreement; (c)
changing the rate at which it paid reinstated former striking
employee Roger Moore when he performed ‘‘transfer’’ work;
and, (d) changing the manner or method of calculating piece
rate pay for unit employees classified as drawers?
3. Whether, on or about June 5, 1989, the Respondent vio-
lated Sections 8(a)(1), (3), and (5) and 8(d) of the Act by
changing the starting time of the second-shift unit employees
at its Diamond plant?
4. Whether the Respondent, since on or about March 13,
1989, violated Sections 8(a)(1) and (5) and 8(d) of the Act,
by failing and refusing to furnish information requested by
the Union?
5. Whether, on or about May 3, 1989, the Respondent vio-
lated Sections 8(a)(1) and (5) and 8(d) of the Act, by with-
drawing recognition from the Union for the Diamond unit,
effective on May 31, 1989, the date the then-current collec-
tive-bargaining agreement was to expire?
6. Whether, the Respondent violated Sections 8(a)(1), (3),
and (5) and 8(d) of the Act, since certain dates in June 1989,
by laying off or terminating all second-shift employees in the
unit at its Diamond plant?1
FINDINGS OF FACT
I. JURISDICTION
The Respondent, General Clay Products Corp., a corpora-
tion engaged in the manufacture and sale of bricks at a num-
ber of facilities, all in the State of Ohio, including a location
at Nelsonville, Ohio. Duing the past 12 months, a representa-
tive time period, the Respondent, in connection with its
aforenoted business operations sold and shipped products,
goods, and material valued in excess of $50,000 directly
from points within the State of Ohio to points outside the
State of Ohio. The Respondent admits, the record supports,
and I find that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
The Respondent admits, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II. THE UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
The Respondent, General Clay Products Corp., has long
been engaged in the manufacture of commercial and residen-
tial bricks at six facilities in five locations in Ohio. It owns
and operates two plants in Wadsworth, and one each in Dia-
mond, Logan, Baltic, and Goshen, all in Ohio. The allega-
tions in the complaint involve only the Diamond plant, which
is located near Nelsonville, Ohio. At the time of the hearing,
there were approximately 40 unit employees employed at the
Baltic plant; 35 and 30 unit employees at plants 4 and 5 re-
spectively at the 2 Wadsworth locations; 42 at Logan; and,
approximately 46 unit employees at the Diamond plant.
The production and maintenance employees at each of Re-
spondent’s plants except for the Goshen facility (located in
Newcomerstown, Ohio), have long been represented by the
Union in separate units under separate contracts. Under the
ownership of the Epler family, the Respondent purchased the
first of the aforenoted facilities, the Baltic plant, back in
1948; the Wadsworth plant in 1950; the Logan plant in 1954;
the Goshen plant (unrepresented) in 1975; and, the Diamond
plant in 1978. The Union had already long been the bar-
gaining agent at each of these represented facilities at the
time of purchase and the Respondent continued to recognize
it as such. Also, where a contract was in place covering the
facility at the time of purchase, the Respondent assumed that
agreement.
As noted above, the Respondent purchased the Diamond
plant, which facility is the subject of the allegations, in May
1978. The Respondent retained the seller’s production and
maintenance employees, recognized the Union for that unit
and continued to implement the same terms and conditions
contained in the collective-bargaining agreement due to ex-
pire in May 1979. (Tr. 539–539, 542.) However, 1 day after
the Respondent purchased the Diamond plant, the unit em-
ployees at that location, engaged in a 4- to 5-week strike
over Respondent’s requirement that they take physicals. Un-
like, the instant case, no grievance was filed regarding the
Respondent’s action and the Respondent did not hire any re-
placements. Over the next 10 years, the Respondent experi-
enced other strikes (only at the Diamond facility), as noted
below. Aside from the circumstances involving the most re-
cent strike which occurred in May 1988, no other unfair
labor practices have ever been filed against the Respondent.
The Respondent experienced a second strike at the Dia-
mond location in March 1979 in connnection with the first
negotiated contract between the parties for that unit. This
was an economic strike almost entirely over a ‘‘closed shop’’
versus an ‘‘open shop’’ issue and lasted 39 months into June
1982 with a new open shop contact. (In this regard, the
union-security provision was no different than any of the
1049GENERAL CLAY PRODUCTS CORP.
2 The arbitrator’s award denied reinstatement for James Warren,
Steven Dickerson, Billie Mitchell, Jerry Mitchell, and Thomas
Mitchell on the basis that each of them had been dicharged for
cause. He found that Warren, as president of the Union, was more
culpable than the other employees engaged in the work stoppage.
(Id. at 50.) As for Billie, Jerry, and Thomas Mitchell, and Steve
Dickerson, the arbitrator found that they had engaged in an illegal
slowdown between May 10 to 12, 1988, for which they were first
suspended and later discharged and that the suspensions ‘‘prompted
the [illegal] walkout.’’ (Id. at 15–16; 45–48.) 3 All dates are in 1989, unless otherwise indicated.
contracts covering the other facilities of the Respondent.)
The Diamond facility however, had resumed operations in
the spring of 1981 with 25 replacements and 5 or 6 returning
strikers. In 1986, there was a 24-hour strike over a misunder-
standing regarding certain pay rates under the newly nego-
tiated but then still untyped contract. That strike was precip-
itated by a supervisor giving erroneous information to em-
ployees on the subject of pay. The Respondent and Union
met almost immediately and resolved the misunderstanding
or dispute. The next strike occurred on May 12, 1988, during
the term of the most recent contract and the events related
thereto gave rise to the instant case in circumstances de-
scribed below.
The aforenoted contract by its terms was effective June 1,
1986, through May 31, 1989, and that agreement contained
a no-strike provision. (Jt. Exh. 1.) The strike commencing on
May 12, 1988, arose over the Respondent’s requirement that
employees wear safety masks and involved the participation
of virtually the entire complement of unit employees, ap-
proximately 32 in number. The Respondent, relying on the
no-strike clause, dealt with those employees as illegal strik-
ers. Thus, by letter dated May 13, 1988, the Respondent noti-
fied the striking employees that they were terminated, effec-
tive May 12. (Vol. II, Nov. 16, Tr. 99; Jt. Exh. 1, p. 1.) On
May 18, 1988, James Warren, president of the Union, filed
a grievance on behalf of all the terminated employees. (R.
Exh. 2.) Warren requested reinstatement with full backpay
and benefits including seniority. (Id.) The facility was phys-
ically closed from May 12, 1988, for a period of 6 weeks.
On May 19, 1988, the Respondent began hiring new employ-
ees and by mid-June 1988, it had hired a full complement
of about 32 permanent replacements.
On October 21, 1988, the termination grievance was proc-
essed to an arbitration hearing. The arbitrator was advised at
the hearing that the Respondent had hired replacements for
the strikers. (Tr. 93–94.) On March 21, 1989, the arbitrator
issued his decision. (Jt. Exh. 2.) He ruled, in pertinent part,
that the strikers had engaged in an illegal strike but ordered
that they be reinstated without backpay.2 He added: ‘‘They
are to be cautioned that should they commit the offense of
committing an illegal strike in the future, they will be dis-
charged.’’ (Id. at 53.) While, as noted above, the arbitrator
was aware that the strikers had long been replaced, his deci-
sion is silent on the status of those replacements or whether
the striking employees are to be reinstated even if it required
terminating the replacements.
Back on December 19, 1988, approximately 3 months
antedating the arbitrator’s award, the Respondent gave all its
replacement employees a $100 Chirstmas bonus. The Re-
spondent’s president, Harold B. Epler Jr., testified that he
provided this gift to thank these employees for coming to
work during that very difficult time. (Tr. 517.) Only the Dia-
mond plant’s replacement employees received this amount;
the unit employees at Respondent’s other plants received a
$10 gift certificate. For a number of years prior thereto, the
Respondent had given all its employees at its various plants
the same gift for Christmas, a $10 gift certificate from
Kroger’s grocery store. In earlier years, the Respondent had
provided a turkey or ham or a certificate for such at a local
grocery store. According to reinstated striker Roger Mohler,
he had been receiving the $10 Christmas certificate every
year since 1978, when he first started working for the Re-
spondent. The only other time the Respondent provided a
$100 Christmas gift or bonus was back in December 1981
during another strike at the Diamond plant and, assertedly for
the same reason, to wit, to thank the replacement employees
and or any employees who abandoned the strike for coming
to work.
The Christmas bonus had never been the subject of nego-
tiations or a grievance and it appears that the Union had
never been given prior notice of Respondent’s intentions
prior to its grant. According to counsel for the General
Counsel, by not affording the Union the opportunity to bar-
gain over the 1988 Christmas bonus, the Respondent violated
Section 8(a)(1) and (5) of the Act. It is also alleged that Re-
spondent provided the Christmas bonus for reasons violative
of Section 8(a)(3) of the Act. The Respondent contends, inter
alia, that ‘‘the making of the $100 Christmas gift was not
a mandatory subject of bargaining,’’ in the circumstances of
this case, and denied that it was discriminatorily motivated.
(R. Br. 54–58.)
By letter dated March 13, 1989,3 some 8 days before the
arbitrator issued his decision, the Union’s International rep-
resentative, Michelle Laghetto, requested of Epler as follows:
Please send me a current seniority list for the following
plants covered by collective bargaining Agreements
[sic] with the Aluminum, Brick and Glass Wokers;
Wadsworth, Baltic, Logan and Diamond. [Emphasis
added; Jt. Exh. 7.]
According to Laghetto, insofar as her request relates to the
Diamond plant, the contract covering that unit was soon to
expire (May 31), and she was preparing herself for the an-
ticipated negotiations for a new agreement. Laghetto noted
that she had not yet received the arbitrator’s decision and did
not know who the replacements were or how many of them
were then working. She testified that she wanted to meet
with the replacement employees to get their input in prepara-
tion for the new contact negotiations. (Tr. 59.) At the time
of the request, the Respondent’s practice was to post a quar-
terly seniority list in each plant near the timeclock. The list
contains the employee’s name and date of hire.
According to Epler, while a quarterly seniority list had
been prepared and typed on March 20, it had not been posted
that quarter, due largely to the the uncertainties regarding the
employees constituting the work force as the arbitrator’s de-
cision had not yet issued. Epler testified that at the time the
request arrived at his office, he was attending a brick insti-
tute meeting in Arizona and did not see Laghetto’s letter
until the morning of March 21, the same day the arbitrator
issued his decision which he received a day or two later. By
1050 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 In late 1984 or early 1985, the Diamond facility was converted
to produce tumble bricks. These bricks possess a weathered, irreg-
ular texture of the colonial type and while Respondent’s other plants
also produced tumble bricks, those bricks lacked certain special char-
acteristics made only at the Diamond plant. The demand for the Dia-
mond produced tumble brick was high, particularly the product lines
known as St. Lorain and Whitehall and 1986 and 1987 were banner
years. In order to satisfy the increased demand, the Respondent
added a shuttle kiln which increased its production capacity at the
Diamond facility by 15 percent. In January 1988 the Diamond plant
was shut down until March 1988, for further modernization includ-
ing improvements to operate the tunnel kiln at a faster speed. (Vol.
II, Nov. 16, Tr. 67; Vol. I, Jan. 9, Tr. 463–464, 466.) In March
1988, Plant Manager Diehl first raised the specter of a second shift
with President Epler, to better utilize the plant’s increased production
capacity. (Vol. I, Jan. 9, Tr. 634.) The year 1988, was another ban-
ner year for the residential brick industry. (Vol. I, Nov. 15, Tr. 198–
199.) The promising orders for residential brick from the Diamond
facility for 1989 were based largely on the experience of the pre-
vious few years. (See, e.g., Vol. I, Nov. 15, Tr. 200.)
letter dated March 23, Epler asked Laghetto to meet with
him to discuss implementing the arbitrator’s award and sug-
gested an April 6 date. (Jt. Exh. 3.) Epler asserted that he
waited until May 10 to respond to Laghetto’s request for the
seniority list because of questions raised by the arbitrator’s
award and he did not know which of the strikers as coming
back nearly 11 months after the strike began. On May 10,
Epler wrote Laghetto as follows:
You recently contacted my office requesting senior-
ity lists for various General Clay plants. In order that
I may be able to respond to your request, I would ap-
preciate your advising me with regard to each of the
plants the reason for this request.
I will await a response from you before submitting
the seniority lists. [Jt. Exh. 8.]
Laghetto did not respond to Epler’s May 10 letter. At the
hearing Laghetto explained why: ‘‘[I] [f]eel that [the Union]
as the bargaining agent for the plants that I am entitled to
this information in order for me to properly represent these
employees.’’ (Vol. 1, Tr. 50.)
As noted above, back in March, Epler wrote to Laghetto
suggesting that they meet on April 6 to discuss the imple-
mentation of the arbitrator’s award and a meeting on that
date was held. Present on behalf of the Respondent were
President Epler, Diamond Plant Manager David Diehl, and
Respondent’s attorney Stuart Gordon. The Union was rep-
resented at this meeting by International Representative
Laghetto, Hootie Wend, a union committeeman, and employ-
ees Jeff Hutchinson, James Wend, and Lloyd Dale Richmond
(all of them, with the exception of Laghetto, were employees
to be reinstated pursuant to the arbitrator’s decision).
Laghetto and Attorney Gordon served as the principal
spokespersons for their respective sides.
Laghetto testified, without contradiction, that in Gordon’s
opening remarks at the April 6 meeting, he advised the
Union that the Respondent would place a disciplinary letter
in every employee’s file who had participated in the illegal
work stoppage with the warning that if they do so again they
would be immediately dismissed. Gordon proposed that the
employees be reinstated as vacancies occur as the Respond-
ent then had a full complement of employees at the Diamond
plant. Laghetto stated that she wanted the former strikers re-
instated immediately and recommended the following Mon-
day, April 10. Gordon stated that it was not appropriate to
provide illegal strikers with greater consideration than the
rights enjoyed by lawful economic strikers. Laghetto also ex-
plored the possibility of going back to the arbitrator for clari-
fications which Gordon made clear, the Respondent would be
unwilling to do. During this meeting Laghetto advised the
Respondent that four of the striking employees who were eli-
gible fo reinstatement would not return and perhaps another
employee, Valley Johnson might retire. The parties did not
come to any agreement at that meeting.
According to Epler, after the April 6 meeting, he decided
to propose a second shift as a way to accommodate the
Union’s desire to have the former strikers reinstated imme-
diately as well as satisfying the Company’s desire to fully
utilize the Diamond plant’s improved production capacity.4
(Vol. 1, Jan. 9, Tr. 487–490.) The Respondent was also
about to embark on its busy season.
By letter from Attorney Gordon, to Laghetto, dated April
11, the former reiterated the principal positions taken by each
side at the April 6 meeting and set forth an alternative pro-
posal for creating a second shift in order to reinstate the re-
turning strikers to work on that shift. (Jt. Exh. 5.) There, At-
torney Gordon also suggested, that if the Union were agree-
able, that the parties meet on April 14 to discuss the matter
further. Gordon also suggested that the former strikers return
to work on Wednesday, April 19, at 2 p.m., the beginning
of the second shift. (Id.)
The parties met again on April 14, as suggested by Gor-
don in his April 11 letter. Present for each side were the
same persons who attended the April 6 meeting. The Re-
spondent presented its alternative package to its earlier April
6 proposal which now included reinstating the former strikers
on a newly created second shift. In connection therewith, the
Respondent had prepared a list of items which were read off
to the union representatives from a sheet of paper. (R. Exh.
15.) The package provided, inter alia, that the second shift
operate from 2 p.m. to 10 p.m., but neither the reinstated
strikers on that shift nor the employees on the first shift
would be guaranteed any set number of working hours. Fur-
ther, the returning strikers would come back with a loss of
their seniority and must return by April 19 or be terminated.
(Id.)
For the most part, until the Respondent raised the point
that the strikers had to return to work by April 19 or be ter-
minated, the union representatives listened to the package
without responding to its various items. On the item dealing
with recall of the former strikers, Laghetto countered that the
contract should be followed in the same manner as the time
limits for laid-off employees are observed. Laghetto also ex-
pressed her concern about an employee who was a hospital
patient and would not be released in time for the April 19
reporting date. Epler and Diehl indicated that they would be
able to accommodate that individual.
According to Laghetto, the Union was going to do what-
ever was necessary to get the former striking employees rein-
stated and told the Respondent’s representatives as much.
However, Laghetto also asserted that she conveyed her dis-
agreement with Respondent that the returning employees had
to go on the second shift as well as their loss of seniority
but would pursue their rights in a lawsuit against the Com-
1051GENERAL CLAY PRODUCTS CORP.
pany. Laghetto did not expressly object to any of the Re-
spondent’s conditions and represented that the former strikers
would return to work. On the other hand, she denied that the
Union ever agreed to Respondent’s package but merely ac-
cepted an opportunity for the former striking employees to
be reinstated. (Vol. I, Nov. 15, 1989, Tr. 43–44; Vol. I, Jan.
9, 1990, Tr. 498.) The Respondent contends that the Union
either impliedly accepted the Respondent’s package to imple-
ment the arbitrator’s award or, in the alternative, there was
an impasse to justify the Respondent’s implementation there-
of. (Vol. I, Nov. 15, 1989, Tr. 21–22.)
By letter dated April 14, Epler notified the former strikers
who were encompassed by the arbitrator’s reinstatement rul-
ing, to report to work on the second shift at 2 p.m. on
Wednesday, April 19 or, ‘‘[f]or good cause shown . . . until
Monday, April 24.’’ (R. Exh. 16.) In all, 20 out of approxi-
mately 28 eligible employees returned and they came back
to work between April 19 and 24.
Roger Moore, was one of the reinstated employees. Prior
to the May 12, 1988 strike, he was employed as a kiln car
repairman and also a transfer operator. He earned the same
$7.35 an hour prior to the strike without regard to which of
the aforenoted jobs he performed. According to Moore, when
he was first reinstated, he was paid $7.20 an hour for transfer
operator work and was paid the higher $7.35 an hour only
when he performed kiln car repair work. After Moore com-
plained to his superiors sometime in May, the Company paid
him the higher rate for both jobs. (Vol. I, Tr. 178–180.) It
is alleged that the Respondent changed Moore’s rate of pay,
when he was reinstated, for reasons violative of Section
8(a)(3) and that it was also done unilaterally and without bar-
gaining in violation of Section 8(a)(5). Respondent contends
that Moore, as well as the other former striking employees
were reinstated consistent with the conditions set forth in its
proposal of April 14. It also denies that it was
discriminatorily motivated, noting, inter alia, that it adjusted
Moore’s wage rate upwards to the prestrike level before any
charges were filed.
It is also alleged that Respondent violated Section 8(a)(3)
and (5) by ‘‘chang[ing] the manner or method of calculating
piece rate pay for unit employees classified as drawers’’ in
April, after the employees were reinstated. (G.C. Exh. 1(c),
p. 3, par. 7(e).) Basically, drawers unload burnt brick from
a kiln car segregating the good or ‘‘A’’ grade brick from the
bad, i.e., cracked, also referred to as scrap brick. The good
brick is loaded onto a jig or bander machine; the scrap is
disgarded and thrown into a dumpster tub. The typical kiln
car contained approximately 5-percent scrap. (Vol. I, Nov.
15, Tr. 129.) Employees employed as drawers are com-
pensated on a piece rate basis. Reinstated employees Roger
Mohler and James Wend testified that prior to the May 1988
walkout, as drawers, they were paid by the per thousand
brick (divided by the number of drawers as a team, usually
four) which they removed from the kiln car and included
both ‘‘A’’ grade and scrap. However, they asserted that after
they were reinstated, they no longer received compensation
for scrap but only for the ‘‘A’’ grade brick coming out of
the machine and banded or strapped.
Mohler and Wend relied principally on what they under-
stood they were told by either their immediate superior,
Harland (Buddy) Walker or Plant Manager Diehl. No pay
stubs or other documentary evidence was introduced. Diehl
denied that the method for calculating the pay for drawers
changed after the employees were reinstated on April 19 or
that the matter had previously been brought to his attention.
He also denied having any knowledge of what Walker told
employees regarding changes in the way they were paid and
did not authorize him to convey any message to employees
on this subject. According to Diehl, the subject (drawers
compensation) was covered by contract and could not be
changed without the Union’s approval. (Tr. 776–777.)
Effective June 5, the Respondent changed the starting time
for the reinstated second-shift employees from 2 p.m. to 3
p.m. Diehl testified that since the first or second week in
May, he had heard on two or three occasions, complaints
from some of the permanent replacement employees, that
they were uncomfortable and felt harassed by contact with
former striking employees as the respective groups entered
and left the plant at the start and completion of their respec-
tive shifts. More particularly, as testified by Diehl, the first-
shift employees complained that as they were on the way out
of the plant they were confronted by three or four former
strikers who would form a line in front of them. There were
no reports of actual physical contact. Diehl testified that
Epler decided to address this problem by changing the start-
ing time for the second shift.
Diehl testified that the Company had changed the starting
time at the Diamond plant on a number of occasions prior
to the time in question and the Union had not objected to
such unilateral action. The Respondent argues that in any
event, the change in shift hours occurred following the expi-
ration date in the contract and the Respondent’s withdrawal
of recognition. Thus, Respondent argues that it had no obli-
gation to consult the Union regarding the change. (R. Br. 88–
89.)
The Respondent’s withdrawal of recognition is predicated
almost entirely on a petition signed by 30 of the 32 replace-
ment employees on April 18 and 19 stating that they do not
wish to be represented by the Union, which petition was pre-
sented to Diehl on or about April 19. (R. Exh. 1.) Approxi-
mately 17 or 18 of the former strikers returned to work on
April 19 and the other 2 or 3 employees to be reinstated re-
turned on or before April 24. Diehl turned over the petition
to Epler later the same day. By letter dated May 3, Epler ad-
vised Union International Representative Laghetto as follows:
A majority of the employees in the bargaining unit at
the Company’s Diamond, Ohio plant have provided the
Company with objective evidence that they no longer
wish to be represented by your Union. Accordingly, we
will not recognize your Union as the majority rep-
resentative of our Diamond plant employees once the
existing contract expries [sic]. Under these cir-
cumstances, the negotiation meeting we scheduled for
May 10 is hereby cancelled. [Jt. Exh. 6.]
The contract expired on May 31. Laghetto did not respond
to Epler’s letter of May 3. Admittedly, the Respondent with-
drew recognition from the Union with regard to the Diamond
unit immediately after the contract expired.
Over a period commencing on or about June 7 to on or
about June 23, the Respondent laid off all its second-shift
employees. According to Epler, he took this action because
of an unexpected and severe downturn of business in the res-
1052 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 The Respondent also rewarded each of its Diamond employees
who worked during an economic strike back in 1981 with $100 for
Christmas and gave the much smaller gift to employees at the other
facilities in the same relative manner as in 1988. As testified by
Epler, on both occasions ‘‘[w]e wanted to thank the employees for
comming to work.’’ (Vol. I, Jan. 9, 1990, Tr. 515–517.)
6 Here, the striking employees had gone out in violation of the
contractual no-strike clause for which they were lawfully terminated
in May 1989. Thus, when the Respondent gave each replacement
employee $100 in December 1988, they were the only employees
employed at the Diamond facility.
7 The Respondent also raised in its answer, as an affirmative de-
fense, that the Christmas gift in question, which was given on De-
cember 19, 1988, is time-barred under Sec. 10(b) of the Act. The
underlying charges were filed on June 21, 1989, just outside the
10(b) period. However, the record disclosed, and I find, that the
Union did not have knowledge of the gift until on or about Decem-
ber 28, 1988, and, as such, the charges are appropriate for consider-
ation on the merits within the meaning of Sec. 10(b) of the Act.
(Vol. I, Nov. 15. 1989, Tr. 58; Vol. I, Jan. 9, 1990, Tr. 517–518.)
See, e.g., Lehigh Metal Fabricators, Inc., 267 NLRB 568, 576
(1983); Plymouth Locomotive Works, Inc., 261 NLRB 595, 598–599
(1982).
idential brick industry. (Vol. II, Nov. 16, Tr. 194–195; R.
Exhs. 10 and 11.) This led to large cancellations of orders
and a corresponding increase in the level of inventory. (Id.,
Tr. 148–149, 182–183, 189–191, 194–195; R. Exhs. 10 and
11.) Epler asserted that 90 to 95 percent of the product line
manufactured at the Diamond facility is directed toward resi-
dential construction (single-family or multiple-family units).
(Id. at Tr. 84.) Insofar as the sharp downturn in business at
that time, this condition was largely corroborated by the tes-
timony from officials of distributor-customers of Respondent.
As will be discussed more fully infra, counsel for the Gen-
eral Counsel contends, that the Respondent never intended to
maintain a viable second shift but that it was a sham creation
to give the appearance of compliance with the arbitrator’s
award. (G.C. Br. 22–23.) Further, in laying off or terminating
the second-shift employees approximately 2 months after
they were reinstated, the Respondent merely completed the
(asserted) sham.
B. Discussion and Conclusions
1. Whether the Respondent violated Section 8(a)(1), (3),
and (5) by unilaterally providing a $100
Christmas bonus or gift
It is undisputed that on December 19, 1988, the Respond-
ent unilaterally and without notice to the Union, provided
each of its replacement employees employed at its Diamond
plant $100 for Christmas. The record disclosed that since
around December 1982, General Clay provided its Diamond
unit employees a Christmas gift certificate for the purchase
of a turkey or ham at Kroger’s grocery store. However, since
1983 or 1984 until 1988, General Clay gave those employees
a $10 Chistmas gift certificate for the purchase of any item
at Kroger’s. The $10 Christmas gift was the same for em-
ployees at all of Respondent’s plants except in 1988 when
only the employees at the Diamond plant received $100.5
Respondent contends, that what the General Counsel charac-
terized as a $100 Christmas bonus in 1988, for the Diamond
replacement employees, was actually a lawful gift within the
meaning of the Board’s decision in Benchmark Industries,
270 NLRB 22 (1984), and as such, not a term and condition
of employment or mandatory subject of bargaining.
In Benchmark, the employer gave all its employees for
Christmas, a holiday lunch or dinner and 5-pound hams for
3 consecutive years (1978–1980), before it unilaterally dis-
continued granting this benefit in 1981. There, as in the in-
stant case, the benefits were the same for all the employees
without regard to employment-related factors such as work
performance, earnings, seniority, or production.6 The Board,
in Benchmark, treated the Christmas dinners and hams as
‘‘token items’’ and the grant thereof as ‘‘merely gifts.’’(Id.)
Having found that the gift was not a term and condition of
employment, the Board found that the employer could law-
fully discontinue the benefit unilaterally without violating
Section 8(a)(5) of the Act. See also Harvstone Mfg. Corp.,
272 NLRB 939 (1984).
While noting the similarities in the instant case to Bench-
mark, there are also some notable differences. Thus, here, the
Christmas benefit provided for a far longer period (at least
from 1983 through 1987) than the 3 consecutive years in-
volved in Benchmark, which period the Board viewed as
‘‘relatively short.’’ (Id. at fn. 3.) Also, here, rather than dis-
continuing the grant of the gift or bonus, General Clay actu-
ally increased the size of the bounty tenfold, from a $10-gift
certificate to $100.
In assessing the factors which tend to both support and
militate against encompassing the instant case within the pa-
rameters of Benchmark, I lean toward inclusion largely be-
cause all the Diamond employees received the same amount
regardless of seniority and other employment-related factors
noted above, which are generally tied to employee remunera-
tion or pay. See NLRB v. Wonder State Mfg. Co., 344 F.2d
210, 214 (8th Cir. 1965), denying enf. in pertinent part to
147 NLRB 179 (1967), and relied on by the Board in Bench-
mark. As for the increased size of the 1988 gift, I believe,
that in the circumstances of this case, the change reflects
more on Respondent’s motivation than of uplifting a gift to
the level of term and condition of employment within the
meaning of Sections 8(a)(5) and 8(d). Benchmark Industries
Corp., supra; Harvstone Mfg. Corp., supra. Accordingly, I
shall recommend that these allegations be dismissed.7
As noted previously, it is also alleged that Respondent’s
Christmas bonus (found to be in the nature of a gift) given
only to the replacement employees at the Diamond plant in
1988, constituted a violation of Section 8(a)(3) of the Act.
Clearly, the Respondent was under no obligation to provide
a similar gift to the then-discharged illegal strikers. On the
other hand, neither did the Respondent give the same Christ-
mas gift to employees at its other locations, the great major-
ity of whom are represented by the Union. In this regard, it
is noted that the Respondent had long given the same Christ-
mas gift to all its employees, regardless of plant location.
Why then the change? On the state of this record, it appears
that a fair inference is that the untypically generous size of
the gift (10 times the normal amount) is attributed to the Re-
spondent’s desire to reward or impede employees in order to
discourage them from in engaging in certain concerted activi-
ties, as alleged. The last time the Respondent so rewarded or
singled out Diamond employees was back in December 1981
during a long economic strike when he gave $100 to each
1053GENERAL CLAY PRODUCTS CORP.
8 It is noted that subsequently, the Respondent again treated the re-
placements more favorably by discriminatorily changing the starting
time of the reinstated strikers. See sec. 3, infra.
of its replacement employees and to the handful of other em-
ployees who abandoned that strike.
According to President Epler, he gave the replacement em-
ployees the more generous Christmas gift in 1988 for the
same reason in 1981, to thank them for coming to work. In
December 1981, when the Chistmas gift was given, the strike
was still ongoing and had long been in progress. That strike
began when the contract expired in May 1979. Thus then,
unlike the circumstances in 1988, there was not any no-strike
clause in effect at any time during the course of that strike
nor is it contended that the strike was otherwise illegal. In
these circumstances, noting, inter alia, Epler’s reason ad-
vanced for providing the more generous gift, the conclusion
is inescapable that the grant did not turn on whether the
strike was illegal but rather to reward employees for not en-
gaging in a strike, legal or otherwise.
In view of the foregoing and on the entire state of the
record, I am persuaded that the Respondent was
discriminatorily motivated in violation of Section 8(a)(3), by
departing subtantially from past practice in giving its replace-
ment employees 10 times the amount normally given for
Christmas.8 Accordingly, I find that the Respondent violated
Section 8(a)(3) of the Act, as alleged.
2. Whether Respondent, on or about April 19, 1988,
violated Sections 8(a)(1), (3), and (5) and 8(d) by
creating a second shift, terminating the seniority of
illegal strikers, and making certain changes with
regard to pay rates
a. Creating a second shift and terminating the seniority
of illegal strikers
As noted previously, the Respondent asserted that it cre-
ated the second shift to accommodate the Union’s desire to
have the former striking employees reinstated immediately as
well as to satisfy its own desires to more fully utilize the im-
proved production capacity at the Diamond plant. According
to counsel for the General Counsel, the Respondent created
the second shift as a sham transaction to avoid legitimate re-
instatement of the strikers while attempting to give the ap-
pearance of compliance with the arbitrator’s decision.
The strike involved occurred on May 12, 1988. It is undis-
puted that the strike occurred in violation of the no-strike
provision of the then-current collective-bargaining agreement.
For doing so, the Respondent notified the striking employees
by letter dated May 13, 1988, that they were terminated. The
terminations became the subject of a contractual grievance
and on October 21, 1988, the matter was eventually heard in
arbitration. On March 21, 1989, the arbitrator issued his deci-
sion. He found that four employees who were classified as
hackers were discharged for just cause for engaging in an un-
protected work slowdown and that a fifth employee, Union
President James Warren, was also discharged for just cause
because, inter alia, he instigated the work slowdown as well
as the illegal walkout on May 12. It is not contended that
the aforenoted five discharged-for-cause individuals are en-
compassed by the instant complaint. As for the 28 other unit
employees, the arbitrator found that while they violated the
contractual no-strike clause and were illegal strikers, he ruled
that they be reinstated without backpay with a warning that
they faced discharge if they did so again.
The General Counsel contends that the Respondent was
obligated to reinstate the illegal strikers (those who were not
specifically found to have been discharged for cause) to their
former jobs on the first shift, discharging, if necessary, the
permanent replacements. While the General Counsel does not
dispute the fact that the striking employees lost their status
as employees for their walkout in violation of the no-strike
clause and Section 8(d) of the Act, he maintains (without cit-
ing any authority), that their seniority and other rights were
resurrected when the arbitrator ordered them reinstated, al-
beit, without backpay. It is noted that the arbitrator omitted
any reference to seniority and other benefits although these
items as well as reinstatement and backpay were specifically
requested as the remedy under the grievance (R. Exh. 2).
Section 8(d) merely restores ‘‘certain benefits and protections
under the Act when the [the illegal striker] is reemployed by
[the discharging] employer.’’ It does not contain any provi-
sion restoring seniority and other benefits on reemployment.
If, as the General Counsel contends, that the retention of
seniority is implicit, and that the employer was obligated to
discharge the replacement employees to make room for the
illegal strikers, I would find deferral inappropriate as
palpaply inconsistent with Section 8(d) of the Act. See gen-
erally Cone Mills Corp., 298 NLRB 661 (1990). In Cone
Mills (which did not involve Sec. 8(d)), the Board refused
to defer where the arbitrator found that the discharge was
predicated solely on union activity but he still awarded rein-
statement although without backpay. There, the Board treated
the arbitrator’s less than make-whole award as repugnant and
not susceptible to an interpretation consistent with the Act.
Here, of course, the arbitrator’s award was less than whole
because of the illegal (rather than protected) nature of the ac-
tivity. Given the undisputed illegal nature of the activity, I
find, contrary to counsel for the General Counsel, nothing to
justify reading favorable features into the arbitator’s decision
such as seniority and other benefits, when the arbitrator re-
jected backpay and made no reference to the other items. As
noted by counsel for Respondent, to adopt the General Coun-
sel’s position would also result in the anomaly of providing
illegal strikers greater rights than lawful economic strikers.
Compare Laidlaw Corp., 171 NLRB 1366 (1969), enfd. 414
F.2d 99 (7th Cir. 1969) (an economic striker who offers to
return to work replaces the permanent replacement when the
slot become vacant).
The General Counsel does not contend nor does the record
suggest otherwise, that the no-strike clause in question was
inoperative because the employer’s unfair labor practices
prompted or prolonged the strike. Compare Mastro Plastics
Corp. v. NLRB, 350 U.S. 270 (1956). Indeed, the earliest of
the complaint allegations relates to the Christmas bonus
awarded the replacement employees in December 1988,
appoximately 7 months after the illegal strikers were dis-
charged. Similarly, it is not contended that the strike was jus-
tified to protest safety conditions. Thus, Section 502 of the
Act, which under certain circumstances may preempt con-
tractual no-strike provisions is not involved. In fact, the arbi-
trator specfically found that the illegal strike was not over
safety conditions. (Jt. Exh. 2, p. 41–42.)
1054 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 While it is undisputed that Moore’s wage rate was adjusted up-
wards after he complained, his testimony as to when he received this
adjustment as well as on other matters is vague, inconsistent, con-
fusing, and unreliable. Even the General Counsel had to acknowl-
edge that Moore’s testimony was confusing. (Vol. I, Nov. 15, Tr.
184.)
Given the nature of the arbitrator’s award, Epler was faced
with the dilemma of satisfying the reinstatement aspect in the
face of his desire to retain permanent replacement employ-
ees. For reasons noted above, the Respondent was under no
legal obligation to dislodge the latter group to make room for
the illegal strikers. The Diamond plant then operated on one
regular daytime shift as did all of Respondent’s other plants
and employed a full complement of 32 employees. Faced
with limited options, I do not find Epler’s offer to the Union
at the parties’ first meeting to discuss the arbitrator’s award,
to wit, to reinstate the illegal strikers without backpay to
slots left vacant by permanent replacement employees as re-
flecting bad faith (they had been lawfully discharged ap-
proximately 11 months earlier).
Similarly, I fail to discern bad faith on the part of Re-
spondent when almost immediately after that first meeting
ended, Epler decided to test the relatively recent improve-
ments in the Diamond plant’s capacity to produce by explor-
ing with the Union an offer to reinstate the former strikers
on a newly created second shift. The record disclosed that
Epler made that decision against a backdrop of greater de-
mand for residential brick over a 3-year period, and they
were facing the busy season in production. In these cir-
cumstances and on the state of the entire record, I am
unpersuaded that the General Counsel has demonstrated that
Epler’s decision to create the second shift was a ‘‘sham
transaction.’’ While instituting a second shift was unprece-
dented in Respondent’s history, so were the confluence of
factors that supported the viability of proposing such action
at that time. Thus, I am persuaded that Epler made a genuine
search to comply with an award which left an anomalous
condition (reinstating illegal strikers), while at the same time
fulfilling his bargaining responsibilities in highly unusual cir-
cumstances. Accordingly, I shall recommend that these alle-
gations be dismissed.
b. Alleged changes in pay rates
(1) Employee Roger Moore
Moore was a reinstated illegal striker. Prior to the May
1988 strike, Moore was a kiln car repairman/transferman. He
was paid the same $7.35 an hour whether he performed kiln
car repair work (the contract rate for that classification) or
worked in the transferman classification (contract rate was
$7.20). According to Moore, when he was reinstated in April
1989, he did not receive the higher kiln car repairman’s rate
when he performed transferman work. It is alleged that the
Respondent made a unilateral change in Moore’s rate of pay
as a transferman in violation of Sections 8(a)(1), (3), and (5)
and 8(d). The Respondent contends that Moore’s assignments
and rate of pay were consistent with its package proposal for
reinstating the strikers made to the Union at the April 14,
1989 meeting and that it fully satisfied its bargaining respon-
sibilities. As for the 8(a)(3) allegation, the Respondent de-
nied, inter alia, animus or unlawful motivation.
The record disclosed that the Respondent informed the
Union at the April 14 meeting that under its package pro-
posal there was not enough work for a full 8-hour second
shift but only 6-1/2 to 7 hours and that the returning strikers
might not necessarily be reinstated to the bid-in-jobs they
held prior to the time they went out on strike. The Union
was anxious to have the strikers reinstated as soon as pos-
sible on virtually any basis and did not debate this point. In-
stead, Laghetto advised the company negotiators, that the
Union would explore its legal rights elsewhere. In Moore’s
case, the record disclosed that he was reinstated on the sec-
ond shift to the transferman’s classification. The kiln car
work was assigned to two kiln fireman (also reinstated
former strikers) who had shuttle kiln responsibilities in the
same area. They were paid the higher kiln fireman rate even
when they performed kiln car repair work. In any event, in
May 1989 when Moore complained, Plant Manager Diehl
moved a kiln fireman off the car repair work and saw to it
that Moore received the higher kiln car repair/tansferman
rate.9 Diehl made the adjustment to satisfy Moore without a
grievance having been filed and before any unfair labor prac-
tice charges were filed on this subject. There in no evidence
that Moore was more supportive of the Union than other
striking employees.
In the circumstances of this case, I find that the General
Counsel has not established by credible probative evidence
that the Respondent changed Moore’s rate of pay in violation
of the Act, as alleged. Accordingly, I shall recommend that
these allegations be dismissed.
(2) The basis for calculating the pay of employees
classified as drawers
Prior to the strike, employees classified as drawers were
compensated on a piece rate basis for combined good brick
and scrap which they unloaded from the kiln cars. It is al-
leged that the Respondent unlawfully discontinued compen-
sating the drawers for the cracked brick or scrap when the
strikers were reinstated on or about April 19, 1989. This alle-
gation rests entirely on the testimony of reinstated employees
Roger Mohler and James E. Wend. According to their testi-
mony, soon after they were reinstated they questioned their
immediate supervisor, Harlan (Buddy) Walker, regarding the
method of calculating their pay and were told that they
would be paid by the strap (comprising only ‘‘good brick’’).
Wend testified that Diehl told him that the ‘‘[calculation]
works out the same.’’ (Vol. I, Nov. 15, Tr. 144.) Plant Man-
ager Diehl denied that the drawers were no longer paid for
scrap or that the basis for calculating their pay had changed
when the strikers were reinstated. The parties stipulated that
the company records corroborate Diehl’s testimony insofar as
calculating the rate of pay for drawers for 1988 and 1989.
(Tr. 768–769.) Diehl also denied that Walker ever had the
authority to tell anyone that drawers would not get paid for
scrap.
The record also disclosed that when both Mohler and
Wend were reinstated, they were assigned work mostly as
general laborers rather than as drawers, at a lower rate of
pay. However, when they worked as drawers they were paid
as employees in that classification. They did not produce pay
stubs or other documentary evidence to support the allegation
that the Respondent changed the method of pay for drawers.
Nor was a grievance under the contract then still in effect
ever filed.
1055GENERAL CLAY PRODUCTS CORP.
10 As I also find for reasons noted infra, that the Respondent law-
fully withdrew recognition from the Union immediately after the
contract expired at the end of May, I find that it was not under any
obligation to bargain over the change in question which occurred on
or about June 5. Accordingly, I find that the Respondent did not vio-
late Secs. 8(a)(5) and 8(d) and I shall recommend that these allega-
tions be dismissed.
11 On the other hand, for reasons discussed previously, when the
illegal strikers were terminated, the Respondent could lawfully deem
their seniority to have been eliminated and was under no legal obli-
gation to restore such seniority on reemployment. (See sec. 2, supra.)
12 I found Laghetto to be consistent, plausible, responsive, and
candid with no apparent effort to embellish her testimony. It is dif-
ficult to discern where, if at all, Laghetto’s testimony is contradicted
by Respondent’s witnesses or by documentary evidence. On assess-
ing Laghetto’s overall testimony, including demeanor factors, I
found her to be a reliable and credible witness.
In view of the foregoing, noting particularly the limited
nature of the testimony and evidence otherwise supporting
the allegation and the stipulation corroborating Diehl’s testi-
mony in a critical area, to wit, that the method for calcu-
lating the pay for drawers had not changed for the years
1988 and 1989 (the material time period), I find that the
General Counsel failed to demonstrate that the Respondent
made the change as alleged. Accordingly, I shall recommend
that this allegation be dismissed.
3. Whether the Respondent changed the starting time
for second-shift employees in violation of Sections
8(a)(1), (3), and (5) and 8(d)
In April 1989, when the second-shift was instituted, the
first shift ended and the second shift began at 2 p.m. Thus,
there was some overlapping of first and second-shift employ-
ees leaving and entering the Diamond facility. On June 5,
1989, the Respondent changed the starting time of the second
shift from 2 p.m. to 3 p.m. According to Diehl, the change
was made because he had received some complaints from
three or four replacement employees around the first or sec-
ond week in May. They assertedly told Diehl, that three or
four of the reinstated second-shift employees would stop in
a line in front of them between shifts while the replacement
employees were on the way out the plant and the replace-
ment employees felt uncomfortable.
As testified by Diehl, the replacement workers did not in-
dicate to him that the second-shift employees engaged them
in fighting or any other physical contact. Diehl acknowl-
edged that he did not personally observe any of the conduct
complained of by the replacement employees. He could not
recall the names of any of the employees who complained.
While Diehl asserted (without corroboration) that he con-
ducted an investigation which consisted of making inquiries
of his foremen, they (the foremen) were either not in the area
when the alleged incidents occurred or were unaware wheth-
er such incidents happened. (Tr. 815.) Diehl did not question
any of the reinstated strikers.
Against the foregoing backdrop, Diehl, after getting ap-
proval from Epler, called a brief meeting of second-shift em-
ployees to advise them that there starting time would change
to 3 p.m. effective the following Monday. He did not give
them any reason for the change. In the circumstances of this
case, I find that the Respondent made the change for reasons
violative of Section 8(a)(3) and (1).10 As noted previously,
employees who lose their status under Section 8(d) of the
Act, regain the status and the protections of the Act when
reemployed. Thus, the Respondent could no longer discrimi-
nate against those reinstated employees (even though they
lawfully lost their seniority) for engaging in the earlier illegal
strike.11
Here, I find that the record clearly supports the inference
that the Respondent favored the replacements at the expense
of the reinstated strikers by relying on a few unsupported
complaints without even questioning the accused reinstated
employees for their account of what allegedly occurred.
Diehl’s vague and uncorroborated testimony justifying the
change is hardly reliable. As noted above, Diehl could not
recall the names of the complaining employees and his fore-
men could not corroborate that any of the alleged confronta-
tions between replacement employees and the second-shift
employees ever took place.
It is also noted, that whenever changes were made in the
past regarding working hours (unlike the occasion in ques-
tion), such changes generally involved efforts to best deal
with weather conditions and a posted memorandum generally
so advised the employees. (Tr. 781–782.) It is not the change
in starting time per se that is called into question but rather,
how the Respondent arrived at the decision to change the
time only for the reinstated strikers. Here, I am unpersuaded
that the decision was predicated on lawful business factors.
In short, I find that the Respondent violated Section 8(a)(3)
and (1) of the Act, as alleged.
4. The request for information
By letter dated March 13, 1989, Laghetto requested of
Epler, a seniority list for each of its plants covered by collec-
tive-bagaining agreements including the Diamond facility. In-
sofar as the request related to the Diamond facility, Laghetto
testified credibly as follows:
I requested that on March 13th, because we had not re-
ceived the arbitrator’s decision yet, and the contract
was coming up for renegotiation. I knew that I had to
start putting together a proposal for these people [re-
placements]. I did not know who they were. I didn’t
know how many employees there were at the Diamond
[plant] currently working. I didn’t know what job clas-
sifications were actually being filled. So in order for me
to start to prepare, I had to have a seniority list. I had
to be able to contact some of these people to get them
to come in to negotiate with me, and I also needed their
input, as we always do when we prepare for contract
talks. I need their input on what changes they wanted
to recommend.12 [Vol. I, Nov. 15, Tr. 59.]
Laghetto did not hear from Epler regarding her request
until nearly 2 months later in a letter dated May 10 and,
even then, the information was not supplied. Instead, Epler
informed Laghetto, that in order to process her request, he
wanted to be advised ‘‘with regard to each of the plants the
reason for this request.’’ (Jt. Exh. 8.) Laghetto did not re-
spond to Epler’s May 10 letter. She explained: ‘‘[I] feel as
the bargaining agent for the plants that I am entitled to this
information in order to properly represent these employees’’
(Vol. I, Nov. 15, Tr. 50). I find that the weight of the author-
ity tends to support Laghetto’s position.
1056 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
It is well established that an employer has a ‘‘general obli-
gation’’ to provide information, on request, which is reason-
ably necessary to a union in carrying out its collective-bar-
gaining responsibilities. NLRB v. Acme Industrial Co., 385
U.S. 432, 435–436 (1967); NLRB v. Truitt Mfg. Co., 351
U.S. 149 (1946); Washington Hospital Center, 270 NLRB
386, 400 (1984). In assessing whether the requested informa-
tion is relevant or even potentially relevant, a broad dis-
covery-type standard is to be applied. Pfizer, Inc., 268 NLRB
916, 918 (1984); NLRB v. Truitt Mfg. Co., supra. Whether
such information is relevant and necessary is also determined
by the factual circumstances on a case-by-case basis. Proctor
& Gamble Mfg. Co. v. NLRB, 603 F.2d 1310, 1319 (8th Cir.
1979); Postal Service, 276 NLRB 1282, 1285 (1985). How-
ever there are certain types of information pertaining to unit
employees that are so intrinsic to the core of the employer-
employee relationship that the requested information is con-
sidered presumptively appropriate. See San Diego Newspaper
Guild v. NLRB, 548 F.2d 863, 867 (9th Cir. 1977). A re-
quest, as in the instant case, for a seniority list has been
treated as presumptively appropriate. See, e.g., Belcon, Inc.,
257 NLRB 1341, 1347 (1981).
The Respondent argues that it did not unreasonably delay
complying with the Union’s request, at least up until April
19. It asserted that the delay was largely due to the uncer-
tainties and confusion of dealing with the arbitrator’s award
which issued on March 21, approximately 1 week after the
request was made. Thus, the Respondent arranged and con-
ducted meetings with the Union on April 6 and 14 to discuss
the implementation of the arbitrator’s award. However, ac-
cording to the Respondent, neither party knew how many of
the striking employees would be returning so that it still
could not provide the requested seniority list. While the
Union did not at either session renew its request, it is noted
that the Respondent did not indicate to the Union why it was
having difficuities complying therewith or made any other
reference to Laghetto’s earlier request. As for not complying
with the request on and after April 19, the Respondent relies
largely on a petition given to Plant Manager Diehl on that
date signed by a majority of the employees showing that they
no longer wanted the Union as their bargaining agent. I find
that the Board’s decisions in Toledo 5 Auto/Truck Plaza (To-
ledo), 291 NLRB 319 (1988); John’s-Manville Sales Corp.,
282 NLRB 182 (1986), and Seneca Electric Co., 265 NLRB
1531 (1982), relied on by the Respondent are distinguishable
on their facts.
Here, unlike Toledo, the request was made while the con-
tract was still in effect and more than a month before any
evidence of union disaffection. In Toledo, inter alia, the re-
quest was made at a time when the company had ‘‘substan-
tiated evidence’’ that the Union was no longer the majority
representative. Similarly, in John’s Manville, unlike the in-
stant case, there was no contract in effect at the time of the
request and the Respondent’s refusal was justified on the
basis that it had a legitimate basis for withdrawing recogni-
tion from the union. (Here, for reasons noted below, the Re-
spondent could not lawfully refuse to fulfill its bargaining re-
sponsibilities until the contract expired at the end of May.)
It is also noted, that in Seneca Electric, inter alia, the con-
tract had expired at the time the request was made. More-
over, there, tending to militate against any dilatory tactics, it
is noted that the the information was eventually supplied.
In the instant case, I am unpersuaded that the cir-
cumstances justified or even mitigated against the Respond-
ent’s failure to provide the requested information during the
term of the contract, although it may excuse some of the
delay in responding thereto. Here, Epler wrongly refused to
provide presumptively appropriate information unless the
Union first satisfied the Respondent with its reasons for the
request. The Respondent has not made out a case or even
contended that the information is confidential. Nor has it es-
tablished some other legitimate defense for refusing to com-
ply during the term of the contract. The duty to provide in-
formation as with the duty to bargain ‘‘extends beyond the
period of contract negotiations and applies to labor-manage-
ment relations during the term of an agreement.’’ See Acme
Industrial Co., supra at 436, emphasis added. In short, I find
the Respondent’s failure to provide the requested information
during the term of the contract is violative of Section 8 (a)(5)
and (1) of the Act, as alleged.
5. The withdrawal of recognition
The record disclosed that on April 19, 1989, Plant Man-
ager Diehl was given a document signed by 30 employees,
all replacement employees, stating that they do not wish to
have union representation. At that time there were approxi-
mately 28 former striking employees eligible to work, 20 of
whom actually returned between April 19 and 24. Thus, if
the document was free of taint, the Respondent had a suffi-
cient basis for doubting the Union’s continued majority sta-
tus. See United States Gypsum Co., 259 NLRB 1105, 1112
(1982); Guerdon Industries, 218 NLRB 658, 660 (1975). The
contract was due to expire on May 31, 1989. By letter dated
May 3, 1989, Epler informed Laghetto that a majority of em-
ployees had provided the Company with objective evidence
that they no longer wanted union representation and as a
consequence, the Respondent would withdraw recognition
when the contract terminated and that it was also cancelling
the May 10 meeting which date had been arranged to begin
negotiations for a new contract. (Jt. Exh. 6.)
For reasons discussed previously, I have found that the
Respondent violated the Act independently by the size of its
Christmas gift to the replacement employees back in Decem-
ber 1988 and its failure to furnish a seniority list as requested
in the Union’s letter of March 13, 1989, both of which oc-
curred prior to signing of the petition reflecting union dis-
affection. While I have also found that the Respondent un-
lawfully discriminated against the reinstated employees by
changing the starting time for the second shift, this action
was taken in June 1989, after the Respondent had already
withdrawn recognition and as such, after the fact and clearly
unrelated to the signing of the petition. Thus, the question is
whether a nexus has been shown to exist between the other
unfair labor practice findings and the petition.
The Christmas gifts were given to the replacement em-
ployees 4 months before they signed the petition in question
and there is no showing that these gifts were accompanied
by other conduct designed to undermine the Union’s majority
status, such as antiunion statements. While I have found that
the size of these gifts reflected adversely on Respondent’s
motivation, I cannot find, without more, that the petition
some 4 months later was inspired, in whole or in part, by
1057GENERAL CLAY PRODUCTS CORP.
13 It is not alleged nor does the record reveal that the petition was
the result of any unlawful solicitation efforts by the Respondent.
14 Kenneth Fordenwalt, president of Koppes Clay Products, and
Robert Wetzel, president of Abbey Hart Company, corroborated
Epler’s testimony in material areas including the unexpected slump
in residential construction. While Fordenwalt and Wetzel were not
entirely responsive or consistent, I believe their testimony overall
was plausible and truthful and supported by Respondent’s documen-
tary evidence. No official of Face Brick Inc (‘‘Face Brick’’), the
other principal distributor for Respondent testified. However, the
record includes documentary corroborative evidence showing, inter
alia, that Face Brick cancelled shipments of substantial residential
brick from the Diamond plant in June 1989. (R. Exh. 6.)
15 The Respondent has not hired a new employee since the layoffs
occurred in June 1989.
16 It is not contended that the Respondent was legally required to
resubmit the matter to the arbitrator for clarification. The Respondent
was displeased with an award which confirmed the Company’s posi-
tion that the discharged strikers participated in an ‘‘illegal’’ strike
but, on the other hand, provided for their reinstatement, albeit, with-
out backpay. In the circumstances of this case, I do not find that the
Continued
the unlawful Christmas gifts.13 Similarly, I fail to discern any
connection between the failure to provide information and
the petition in the circumstances of this case. In this connec-
tion, it is noted, inter alia, that there is no showing that any
of signatories were aware that a seniority list or that any in-
formation had been requested by the Union at any time mate-
rial. See Airport Aviation Services Inc., 292 NLRB 823
(1989). Rather, noting the timing of the petition, coming at
around the same time that former striking employees were
returning to work, I find it more likely that they expressed
union disaffection out of fear that the Union was allied with
the strikers to get them their jobs back at the expense of the
replacements. Indeed, it is undisputed that the Union insisted
on reinstating the strikers to the first shift. Since there was
already a full complement of 32 employees on the first shift,
the only way to fully satisfy the Union’s position would be
to displace most of those first-shift replacement employees.
On the basis of the foregoing and the entire record, I am
unpersuaded that the unfair labor practices found impacted
sufficiently on the petition so as to justify rejecting it as
tainted. As noted above, in the absence of any demonstrated
nexus, an employer may rely on such a petition to raise suf-
ficient doubt regarding the Union’s continued majority status
to lawfully withdraw recognition. See Johns-Manville Sales
Corp., 282 NLRB 182 (1986); Airport Aviation Services Inc.,
supra. Accordingly, I find that the Respondent did not violate
Section 8(a)(5) and (1) of the Act, by withdrawing recogni-
tion from the Union and shall recommend that this allegation
be dismissed.
6. The June 1989 layoff of second-shift employees
As noted previously, the General Counsel contends that
the creation of the second shift by Respondent was a sham
transaction designed to give the appearance of compliance
with the arbitrator’s award. To bolster this position, the Gen-
eral Counsel noted that the layoff of the second shift in June
1989 occurred only 2 months after it was first instituted. For
reasons discussed above (sec. 2,a), I have rejected the allega-
tion dealing with Respondent’s decision to create a second
shift at the Diamond plant. As for laying off the second-shift
employees in June, Epler attributed this action largely to un-
expected changes in market conditions such as higher interest
rates. Epler testified that such changes impacted heavily on
the residential brick construction industry causing the can-
cellation of large numbers of orders and the corresponding
rise in inventory at the Diamond facility. Largely on the
basis of credited corroborative testimony from two of Re-
spondent’s three principal distributors14 and documentary
evidence, I find that Epler’s reasons for taking the disputed
action are amply supported by the record.
The record disclosed that Epler met with his largest dis-
tributors in February 1989 and discussed projections for the
rest of the year with regard to orders and shipments of brick.
While the record also disclosed that the prime interest rate
at around that time was on the rise, the Respondent and dis-
tributors appeared to have been influenced more by the ban-
ner production and sales experiences of the past 3 years, par-
ticularly the previous year, 1988, which was characterized by
Fordenwalt, as an exceptional year. (Vol. II, Nov. 16, Tr.
19.) The projections turned out to be overly ambitious as in-
terest rates continued to climb. That, coupled with adverse
weather conditions, particularly in the month of June (Id. at
Tr. 21), were factors which largely contributed to a downturn
of business in the construction industry leaving many build-
ing projects in abeyance. In turn, the distributors, consistent
with established practice (they do not maintain inventory),
cancelled large orders of shipments of brick from Respond-
ent’s Diamond plant during the spring and summer months,
generally regarded as the busy season. (See also R. Exhs. 4
and 5.)
In June, Respondent, faced with increased cancellation of
orders and a corresponding growing inventory, decided it had
to cut back on manufacturing and production and eliminated
the newly instituted second shift. The first two employees
were laid off on or about June 7 and the other employees
on that shift gradually followed, until the last group of nine
employees were let go on June 23. The employees on that
shift were the junior employees having lost their company
seniority when they were discharged back in 1988 for strik-
ing in the face of the contractual no-strike clause. Also in
late May or early June, the Respondent began to cut back on
the daily speed of the cars going through the tunnel kiln.
(Vol. II, Nov. 16, Tr. 182–191; R. Exh. 14.) It is the speed
that dictates how many bricks are produced and packaged.
To a far lesser extent, the first-shift employees also suffered
some of the consequences. Their hours were reduced by ap-
proximately 1-1/2 hours. (Vol. II, Nov. 16, Tr. 193.) Still
further, it is noted that the business slump also impacted on
Respondent’s Wadsworth plant number five, where approxi-
mately eight employees were laid off and have not been re-
called. (Id. at 199.)
Contrary to the General Counsel, I find that the record
does not support the contention that the layoffs in June were
in reprisal for the filing of the discharge grievance culminat-
ing in the arbitrator awarding them reinstatement.15 There is
a dearth of evidence tending to show that the Respondent in
its long bargaining history has ever discouraged the filing of
grievances or has otherwise undermined the arbitral process.
While the Respondent was clearly displeased with the award,
the record strongly supports and I find, that it took meaning-
ful steps to comply therewith.16 Thus, Respondent, after re-
1058 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent’s refusal to resubmit is tantamount to bad faith on its
part.
17 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
18 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
ceipt of the arbitrator’s award, quickly took the initiative and
arranged to meet and negotiate with the Union over the im-
plementation of that award. At the first session with the
Union on April 6, the Respondent proposed to reinstate the
illegal strikers as permanent replacements left the Company.
At that time the Respondent had already a full complement
of employees and even had the strikers been lawful economic
strikers, they would not have been entitled to more. The Re-
spondent however went further; shortly after that first ses-
sion, it proposed a vehicle (second shift) for reinstating the
strikers immediately, thereby meeting the Union’s principal
demand. While the Union also wanted the strikers reinstated
on the first shift, that could only have been accomplished at
the expense of the replacements. As noted previously, the ar-
bitrator did not direct the Respondent to discharge the re-
placements to make room for the strikers nor was such action
required under the Act.
Under the foregoing circumstances, and on the state of the
entire record, I reject the allegation that Respondent laid off
the second-shift employees in violation of Section 8(a)(3)
and (1) of the Act. Additionally, the Respondent did not vio-
late Section 8(a)(5) and (1) of the Act. As I have found that
the Respondent lawfully withdrew recognition from the
Union on expiration of the contract at the end of May, it was
not obligated to bargain over the decision to lay off the sec-
ond-shift employees in June. Accordingly, I shall recommend
that these allegations be dismissed.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(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. The Respondent violated Section 8(a)(3) and (1) of the
act by:
(a) Discriminatorily departing from past practice by sub-
stantially increasing the amount of Christmas gifts it gave to
replacement employees on or about December 19, 1988.
(b) Discriminatorily changing the starting time for rein-
stated striking employees in June 1989.
4. The Respondent violated Section 8(a)(5) and (1) of the
Act by refusing since on or about March 13, 1989, while the
collective-bargaining agreement was still in effect, to furnish
a seniority list to the Union, as requested, in order that the
latter might perform its duties as exclusive collective-bar-
gaining representative.
5. The Respondent did not violate the Act in any other re-
spect.
6. The unfair labor practices set forth in paragraphs 3 and
4 above are unfair labor practices having an effect on com-
merce within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices within the meaning of the Act, I shall
recommend that it cease and desist therefrom, and to take
certain appropriate action to effectuate the purposes and poli-
cies of the Act.
In view of findings that the Respondent lawfully laid off
all second-shift employees and is under no obligation to rec-
ognize the Union as the exclusive collective-bargaining rep-
resentative for its employees at the Diamond facility, the rec-
ommended affirmative action is limited largely to the con-
ventional notice posting.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended17
ORDER
The Respondent, General Clay Products Corp.,
Nelsonville, Ohio, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discriminatorily departing from past practice with re-
gard to the amount or size of the Christmas gifts given to
employees to dissuade them from engaging in union activi-
ties.
(b) Changing the starting time or otherwise discriminating
against former strikers who have been reinstated and have
their status as employees restored under Section 8(d) of the
Act.
(c) Refusing, upon request, to furnish the exclusive rep-
resentative of its employees information relevant and nec-
essary to the performance of its duties as exclusive collec-
tive-bargaining representative.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its Diamond plant in the State of Ohio, copies
of the attached notice marked ‘‘Appendix.’’18 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 9, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the allegations here found to
be without merit be dismissed.
1059GENERAL CLAY PRODUCTS CORP.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT depart from past practice with regard to the
amount or size of the Christmas gift given to our employees
to dissuade them from engaging in union activities.
WE WILL NOT change the starting time or otherwise dis-
criminate against our reinstated strikers who have had their
status as employees restored under the National Labor Rela-
tions Act.
WE WILL NOT refuse to provide information requested by
an exclusive statutory representative of our employees if nec-
essary and relevant to the performance of its duty to rep-
resent you with respect to wages, hours, and terms and con-
ditions of employment.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them under Section 7 of the Act.
GENERAL CLAY PRODUCTS CORP.