Grinnel Co., Inc.

National Labor Relations Board - Board Decisions

Jul 6, 1965

153 N.L.R.B. 1334 (N.L.R.B. 1965)

1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This is especially true since the stipulated appropriate unit specifically
includes regular part-time employees. The Employer employs only
five part-time employees, all of whom are banquet waitresses. Of
these five, Miss Surnick and Miss Kupisch are the only two that are
called in on a regular basis. If the term "regular part-time" as used
in the stipulated -unit is to be given any effect at all, it must also in-
clude employee Surnick-particularly since she has worked more hours
than any other part-time banquet waitress since she was employed in
May 1963.
For these reasons, I would overrule the Regional Director's recom-
mendation as to Surnick's ballot,' and direct the Regional Director
to open and count the challenged ballots of employees Surnick, Ku-
pisch, Chura, and Yoshino, and issue the appropriate certification.
* The facts upon which this dissent are based are partially taken from information sup-
plied by the Employer in its argument in support of its exception to the Regional Di-
rector 's report on challenges and objections.
Grinnell Company, Inc. and International Union of Operating
Engineers, Local 465, AFL-CIO. Case No. 11-CA-92521. July 6,
1965
DECISION AND ORDER
On May 4, 1965, Trial Examiner Phil W. Saunders issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
not engaged in any unfair labor practices and recommending that the
complaint be dismissed in its entirety, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Charging Party filed excep-
tions to the Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three=member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in this case, including tho
exceptions, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
1 The Charging Party's request for oral argument is denied , as the record and the excep-
tions adequately present the issues and the positions of the parties.
In the absence of exceptions thereto, we adopt pro forma the Trial Examiner ' s recom-
mended dismissal of the allegations of the complaint that Respondent violated Section
8(a)(1) and (3)
153 NLRB No. 101.
GRINNELL COMPANY, INC.
ORDER
1335
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, and orders
that the complaint herein be, and it hereby is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The unfair labor practice charges on which the complaint herein is based, were
filed on September 10 and October 12, 1964 . The complaint was issued on Novem-
ber 13, 1964, against Grinnell Company , Inc., herein called the Company or the
Respondent , alleging violation of Section 8(a)(1), (3 ), and (5 ) of the National
Labor Relations Act, as amended . The Company filed an answer to the complaint
denying the commission of any unfair labor practices . All parties were represented
by counsel and participated fully in the hearing, held before Trial Examiner Phil W.
Saunders . None of the parties filed briefs.
Upon the entire record , and from my observation and demeanor of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Delaware corporation owning and operating a plant in Charlotte,
North Carolina, where it is engaged in the business of warehousing and sale of metal
pipe and fittings.
Respondent during the past 12 months, which period is representative of all times
material herein, purchased and received at its Charlotte, North Carolina, plant, raw
materials valued in.excess of $50,000 from points outside the State of North Carolina,
and in a like period manufactured, fabricated, sold, and shipped finished products
valued in excess of $50,000 to points and places outside the State of North Carolina,
from its Charlotte, North Carolina, plant.
I find that Respondent is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union of Operating Engineers , Local 465, AFL-CIO, herein the
Union , is a labor organization within the meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint, as amended, alleges that supervisors of the Company unlawfully
interrogated, threatened, and made certain promises to employees in relation to
their union activities. It is alleged that the Company refused to bargain in good
faith with the Union, and specifically showed bad faith in refusing to reach any
agreement on the schedule of the workweek, insisting upon reserving to itself the
sole discretion to give employees merit wage increases, refusing to discuss wages,
reserving and refusing to change the Respondent's proposal on vacation, sought to
have returning strikers sign a certain paper after the Union made an unconditional
offer of returning the striking employees, and granted a unilateral wage increase to
employees on December 4, 1964.1
This record shows that on February 6 a majority of the employees in an appro-
priate unit,2 by a secret ballot conducted under the supervision of the Board's
Regional Office, designated and selected the Union as their representative for the
purposes of collective bargaining, and that on February 14 the Union was certified
1 All dates are 1964 unless specifically stated otherwise
All production and maintenance employees at the Respondent 's Charlotte, North Caro-
lina, plant , excluding office clerical employees, professional employees, foremen, guards,
and supervisors as defined in the Act.
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as the exclusive bargaining representative of the employees in the aforementioned
unit. The first negotiating session between the parties started on March 20. On
September 9 the employees went out on strike. The parties held their last bargaining
session on October 5 without reaching a contract, and in the interval between March
to October had held approximately 16 separate negotiating meetings. There are no
contentions whatsoever that the Company refused to have meetings and discussions
with the Union, or the Company withheld information or engaged in any dilatory
tactics usually involved in cases of this nature.
The Alleged Refusal to Bargain
The first two meetings between the parties were devoted to going over and reading
the proposed contract as submitted by the Union .3 At the third meeting the Com-
pany accepted the Union's proposal as to the preamble, and there was no argument
as to the recognition clause. The Union proposed a nondiscrimination clause, and
with minor modifications the Company accepted this clause. The Union also pro-
posed in their initial contract a management clause, and with minor changes the
Company accepted this proposal.
In article IV of the Union's initial proposal they set forth a dues-checkoff system
and procedure wherein the Company was required to deduct and forward monthly
union dues. The counterproposal made by the Company in July, contained a free
and voluntary union-membership clause.4 The parties could reach no agreement
on their differences in respect to this proposal.
The Union's initial proposal or article on grievance procedures contained three
sections . The third section provided that grievances would be dealt with in suc-
cessive steps which would be worked out during the negotiations. The Company
accepted. the first two sections of the Union's proposal, and in addition agreed to
the Union's counterproposal setting forth specific steps which would be followed in
presenting any grievance. There were no serious difficulties between the parties on
these matters, and the main grievance procedures as such were acceptable to both
the Union and the Company. However, the parties could reach no final agreement
on the provisions relating to arbitration. The Union set forth in its proposal that
the decision of the arbitrator would be final and binding, that the expenses would
be borne, equally by the parties, and that union stewards and committeemen could
investigate such matters with permission from supervisors. The Company's proposal
provided that if a grievance was not settled within 7 days after being presented to
the plant manager it would then be referred to such representative or representatives
as the Union and Company may select for final discussion and settlement. The
Union's chief negotiator, Robert Hice, testified that he insisted on an arbitration
clause in the setting of grievances, and that the Company's counterproposal did not
have any terminal point in the grievance procedure. Hice also stated that the
Company's counterproposal contained a no-strike clause holding the Union liable
for all injury or damage in violation of any stoppages, strikes, or lockouts. This
record shows that by letter dated June 16, the Company informed the Union that its
article on "No strikes-No lockouts" should be deleted from the Company's proposal.5
In regard to wages the Union proposed a 35-cent across-the-board increase, and the
Company proposed to continue its merit wage increase program. The Company
explained on many occasions during the negotiations the reasons for their merit-wage
program by informing the Union that it was an incentive program, and that the
employees who did good work could thereby be rewarded for it It appears that
one of the Union's objections to the merit program was that the Company had the
unilateral right to decide on which employee or employees deserved raises.6 The
Union's chief negotiator, Hice, testified that when the Company refused to bargain
on wages-this made the seniority provisions of the Union's proposed contract mean-
ingless. The parties could reach no agreement in their differences on wages.
On hours of work and overtime the Union asked for time and one-half for all
hours worked in excess of 8 hours per day, time and one-half for work on Saturdays,
8 Respondent's Exhibit No. 8
1 Respondent 's Exhibit No. 4.
5 General Counsel's Exhibit No. 10.
0It is admitted that the Company had no books, pamphlets, or any other written stand-
ards governing merit increases . And other than the proposal by the Company to keep its
merit program in effect and not to reduce wages during the life of a contract-there were
no other written provisions in the Respondent's wage proposals
GRINNELL COMPANY, INC. 1337
and double time on Sundays, and that all employees should be given 40 hours work
per week. The Company agreed to time and one-half for work over 8 hours a day,
and also agreed on time and one-half for work on Saturdays and Sundays and there
was an agreement on the division of overtime. The Company would not agree to
guarantee a 40-hour week. On "call in pay" the Union proposed a 5-hour minimum
and the Company 2 hours. The parties agreed on 4 hours.
In its initial proposal the Union offered a vacation program which included six
sections, and after discussions the Company agreed to the first four sections or
paragraphs of the Union's proposals, but arguments and differences developed over
cutoff dates in sections five and six. The Union then offered 8 hours' vacation pay
for every 400 hours worked, and the Company agreed to this but added the limita-
tion that an employee must have worked 6 months as of May 1 in any year to
receive 1 day for every 400 hours worked. This qualification was acceptable to the
Union, but it asked that the words "400 hours or major portion thereof" be added.
The Company replied that such wording would be difficult to administer, but that the
Company would give an employee the extra day if he was close to the 400 hours.
The Union proposed 7 paid holidays during the year, and the Company made a
counteroffer of 6 paid holidays. The parties did not reconcile their differences in
this respect. There was no argument or disagreement in respect to the proposal on
insurance, as the Company offered to maintain and pay for it under the existing plan.
With minor differences the parties appear to have also agreed on provisions pertain-
ing to meal allowances.? The Union proposed that the Company supplement the
pay of employees on jury duty, and when the Company accepted this provision with
limitations to 40 hours, the parties agreed. There was a proposal and a counter-
proposal on funeral leaves and with some minor modifications the parties reached an
agreement on this. The Union submitted a proposal on seniority and the Company
offered a counterproposal, and after considerable discussions the Union then sub-
mitted a new proposal on seniority and the Company agreed to it. The Union
offered clauses on safety, bulletin boards, duration, and visitations, a savings clause,
and a miscellaneous clause, and the Company agreed to these proposals.
At one stage in the negotiations the Union offered a sick leave proposal with a
6-day bonus plan. The Company countered with 5 days sick leave per year and
10 days to employees who have been with the Company over 5 years, and providing
that the first day of sick leave would not be compensable. Both parties then agreed
to try to work out the language in the proposals to prevent abuse in the administra-
tion of the sick leave benefits.
The Company accepted the Union's proposal to give up the profits on the coke
machine, and the Union dropped its proposals on clothing and its supervisory clause
after the Company objected to them.
In evaluating the course of negotiations, I think it initially important to emphasize
several factors. As aforestated, the Company met with the Union whenever requested
and also supplied information. The Company submitted numerous counterproposals,
discussed at length the Union's various proposals, and where the Company remained
adamant on an issue, it gave the reasons for its position. This record further shows
that the parties reached complete agreement on 18 different subject matters during
their negotiations, and on vacation, sick leave, and holiday proposals made consider-
able progress to a point where the parties were very close to agreement on these 3
matters. Moreover, the Company accepted modifications on vacation and sick leave
proposals, as aforestated, thereby demonstrating a flexible position without remaining
adamant on these highly important proposals to both parties. The Union also
made concessions on these clauses as previously pointed out, but more important
for the considerations here-the Company did likewise. Thus, it can be readily
seen , even up to this point, that the Company did make significant concessions.s
7 On 3 hours overtime the Union wanted a 30-minute paid lunch period , and the Com-
pany offered 15 minutes.
8 The complaint specifically alleged that the Company refused to change its position on
vacations , and wanted to reserve discretion in the administration of certain prorate situa-
tions. As pointed out earlier herein the Company agreed to most of the Union's proposals
on vacations, but would not accept the words "or major portion" of 400 hours How-
ever, the Company then gave assurances to the Union that it would act equitably in cases
wherein this factor was a close one , and further explained to the Union that a "major
portion thereof" could mean anything over 200 hours, and would, therefore, be difficult
to administer.
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint specifically alleges that the Company showed bad faith by refusing
to agree on the scheduling of the workweek. This record shows that most of the
employees work from 8 a.m. until 4:45 p in., 5 days a week, but that the Respondent
is basically a service organization or industry, and there is a need, therefore, to
schedule some staggered shifts.9 The Company explained these circumstances to the
Union on many occasions during the negotiations, and stated that they could not be
bound in the scheduling of hours as it would limit their need for flexibility, and that
it would be an administrative stumbling block. In relationship to the above it is
noted that the Company agreed to premium pay for work over 8 hours, but in' the
final analysis would not agree to the specific scheduling of a definite 40-hour work-
week on the basis that such a provision might interfere with the Respondent's ability
to serve their customers, and that the Union would then be in a position to claim
additional premium pay for overtime when employees were placed on a different
schedule during their regular shift.
The specific allegations in references to wages are that the Company refused to
discuss wages, that merit-wage increases would be given only in the discretion of
the Company, and that the Company granted a unilateral wage increase on Decem-
ber 4. In the first instant here it is noted that the parties discussed wages on many
occasions during their negotiations, and there is absolutely no basis whatsoever to
sustain any allegation that the Company refused to discuss wages.10 As aforestated,
the Union proposed a 35-cent across-the-board increase, and the Company offered
to continue its merit increase program, and there were several discussions concerning
these proposals. The Union also protested that they could not get any details on
the Respondent's merit-wage program, but it is admitted that the Company had no
written materials on it, and there is also evidence that everytime the merit increase
plan was mentioned the Union negotiator assumed such a militant attitude that it
was virtually impossible to discuss any details about it. The Respondent's merit-wage
program is based on incentive and the work performances of each employee, and
the criteria on which such increases are given was also sufficiently detailed. Further-
more, there is no reliable evidence that the Company ever assumed the position that
they would grant increases solely as they saw fit. In fact, this record shows that in
the visitation clause, which was agreed upon, the Union was therein accorded with
an opportunity or right to investigate any matter covered by the contract.il Since
the continuation of the merit-wage plan was offered in the Respondent's proposal,
such would have been included in any final contract,,and therefore any wage increase
contemplated or given could have been readily investigated by the Union and discus-
sions held between the parties on the same. Certainly-by agreeing to the visitation
increase. There is no basis in this record which will adequately sustain any allega-
tion that the Company insisted upon reserving to itself the sole discretion to grant
employees merit-wage increases. Here the Respondent's refusal to accept the Union's
demands for across-the-board increases is not indicative of bad faith, as the Company
fully discussed and explained to the Union its reasons for wanting to keep the
merit-wage program, and further offered the Union adequate rights of intervention
in all matters covered in any final contract.12 Likewise, there is no basis for finding
that the Company made any unilateral wage increase on December 4. This record
shows that after the Union was certified in February, the Company suspended its
normal employee raises under their merit-system program during the first months
of the negotiations. However, after the negotiations had lagged on for a considerable
period of time, the Company then offered some increases, and in June 1964 five
employees were given pay increases after discussions and agreements with the Union.
By letter dated December 9, the Company again notified the Union that it was going
to give pay increases to three employees, and by letter dated December 21, the Com-
pany notified the Union that, in reference to its letter of December 9, the Company
did not mean to convey the impression of shutting off negotiations with respect to
the increases of the three employees, and would be happy to go over these changes
and negotiate in any way the Union might wish.13 The Union's chief negotiator,
Robert Hice, admitted in his testimony that he never asked the Company to bargain
9 The Respondent supplies contractors with materials, and are often called on to do so
at times other than the normal working hours.
"Union Representative Dixon even admitted in his own testimony that the parties
discussed wages
11 Respondent's Exhibit No. 15 Article XVIII.
12 It is also noted that the Union merely offered its 35-cent-an-hour proposal to bring
the wage picture into the negotiations. However, there is no evidence that the Union
actually expected to receive such increases, nor is there any evidence that the Union
ever offered to reduce its wage demands in order to reach any reasonable compromise.
13 General Counsel's Exhibit No 2, and Respondent's Exhibit No 1.
GRINNELL COMPANY, INC. 1339
over these raises. Under the circumstances here it can be readily seen that the
Union was fully apprised of the Company as to the pay raises in December, and
never objected to the increases, did not register any disagreements, and the Union
fully accepted the offer of the Company, and by so doing never subjected the three
increases to a give-and-take discussion stage even though the Company actively
invited discussions by its letter of December 21. In accordance with the above, I
find that the Company, in a manner deemed adequate, did notify the Union of its
intention to make the December increases, the Union ignored the communications,
and under such circumstances no basis exists for finding a violation of the Act. This
is especially true as a bona fide impasse had also been reached as to wage proposals
during the negotiations.
The remaining allegation bearing on the 8(a)(5) and (3) aspect of this case,
pertains to a paper which the Company sought to have the strikers sign before return-
ing to work. On October 5, the Union made a verbal offer to return the strikers to
work. The Respondent's negotiator, Stuart Childs, then informed the Union that
he wanted the employees to present themselves physically at the plant or warehouse
in order that the Company would know which employees were actually available for
work.14 On October 6, many of the strikers, but not all of them, presented them-
selves at the Company warehouse, and at which time they were asked to sign a
sheet of paper by the Company which contained the following heading:
The following employees of Grinnell Company, Inc., Charlotte Branch Ware-
house who have been on strike called by Local -465 of the International Union
of Operating Engineers hereby petition for consideration to be allowed to
return to work.15
The Union spokesman then objected to the wording of the heading, and informed
the Respondent's branch manager, Vernon Fuller, that they wanted to check this
with their attorney before the employees signed it The Union then drafted a letter
to the Company, dated October 6 and signed by 20 employees, and wherein the
Union stated that one employee was in military service and that there were also
several employees who were not physically present at the moment, but would be
available by the close of the business day on October 7.16 For the next few days
the Company had sessions with an agent from the Board' s Regional Office and then
went back to the job of seeing which employees could be taken back and which ones
could not. On October 9, the Company notified the Union that it would take back
nine strikers and also informed the Union that it had replaced eight other striking
employees. The nine employees mentioned above went back to work on October 12,
and the Company has refused to reinstate any of the others. It appears that the
Company reinstated all of the strikers that it could use, and with the replacements
hired during the strike had an adequate work force for all jobs available without
hiring any additional employees.
In evaluation of the facts surrounding the circumstances here-I am unable to
ascertain how the document or petition which the Company asked employees to
sign on October 6 is any indication sufficient to show bad faith on the part of
the Company. In the first instance the initial offer on October 5 to return the
strikers was a verbal one. On the next day the Company then merely asked for
verification of those employees who were actually present and available for work,
and the document they were asked to sign was clearly for no other reason. The
General Counsel alleges that this document in question sought to bypass and under-
mine the Union. In this respect it is noted that Union Representative Dixon was
present at the warehouse on October 6, and even informed Fuller that he did not
think the employees needed to sign anything as the Union had already made an
offer to return the strikers to work. On the same day, however, Dixon drafted a
letter setting forth, in writing , the offer to return the strikers to work, and also
mentioning the fact that several of the employees were absent. It seems quite
clear to me that under these circumstances the Union fully participated in all the
events that transpired , and certainly there are no facts which support the allegation
that the Union was bypassed. It is specifically noted also that the Union acknowl-
edged in its letter on October 6 that there were several striking employees actually
missing, and therefore vindicated the Respondent's contention in this respect. It
appears to me, and I so find, that the Company had every right to ascertain exactly
which employees were immediately available for work, and especially so when
"Childs testified that the Company knew that one or two of the employees were not
available for work and that they thought there might be others and the Company wanted
to know "precisely" who was available
w General Counsel's Exhibit No. 7.
36 General Counsel's Exhibit No 6.
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
replacement employees had been hired during the strike. In the position which the
Company took it would have been most difficult and virtually impossible to do
anything else.
The law is clear that negotiations carried on in good faith, where there has been
an open exchange of ideas, proposals, and counterproposals, and an indication of
willingness to compromise, but which efforts result in an impasse, cannot be found
to have violated the Act simply because on some of the issues, even though they
may be crucial, one or the other of the parties has been unwilling to recede from
its position so as to yield to the contentions or demands of the other.
The record here showing the negotiations, the proposals, counterproposals, and
modifications by the Company, its admitted availability and participation in the
negotiating meetings, clearly establishes that the Respondent's conduct in the course
of these dealings was in keeping with the spirit of the Act, and was not in violation
of Section 8(a)(5). This record will not support the allegation that the Company
bargained in bad faith, or that its actions and behavior during the periods in question
as have been detailed herein were indicative of bad faith.
The record here further clearly demonstrates that each item in the various pro-
posals were, at one time or another, openly discussed, and that full agreements were
reached on 18 different subject matters, and areas of agreement were also reached
on vacation, sick leave, holiday, and workweek proposals. The failure of the
Respondent to accede to the Union's demands on wages, arbitration, and checkoff
proposals, likewise, cannot be attributed to bad faith on the part of the Company.17
I am satisfied that on these matters the Company made sufficient or adequate counter-
offers and explanations, as aforestated, to demonstrate its good faith and that a bona
fide impasse was reached on these proposals. The courts and the Board have
repeatedly held that the Act does not compel an agreement or bargaining contract
between the parties, not does the Act prescribe what shall be written in them.
In the total aspects of this case the Respondent amply demonstrated all of the
essential elements in establishing its good faith, and accordingly did not commit any
violations.
Alleged 8(a)(1) Violations and Reinstatements
Upon my observations of the witnesses and upon their demeanor as they appeared
before me-the credited testimony shows the following:
Plant Superintendent Lee Overcash told employees Taylor, Moore, Neely, and
Pritt, and possibly others, that if they left the plant and went on strike it was the
same as if they were dissatisfied with the work and quit their jobs, and that they
would then be replaced as the plant was going to continue to operate. Overcash
asked employee Knight when he was hired in August if he knew the Company had a
Union, and also told him that if he was going out on strike there would not be
much need in putting him to work. Overcash further informed Knight that people
who went on strike would be replaced. Robert Keesee was dissatisfied with his
wages and in June asked Overcash for more money. Overcash informed Keesee that
ne would have to take his request up with Manager Fuller. Fuller had previously
informed Overcash that since the Union was in the plant all such matters would
have to be referred to him, and Fuller in turn would take it up from there.18 Leon
Neely stated in May that he asked Overcash if the parties were accomplishing any-
thing in the negotiations, and that Overcash then told him that the Company was
not going to give them a contract. I have rejected Neely's testimony on the additional
basis that Neely himself attended bargaining sessions, and Overcash had absolutely
nothing to do with the bargaining, and, therefore, had no knowledge whatsoever as
to the status or progress of the bargaining sessions. Fred Victory stated that he asked
Overcash about a vacation and was told that if he had not been for the Union he
might have been given something. The credited testimony shows that Overcash
informed Victory that he was not eligible for a vacation because he had not been
employed for a year, and that since the parties were in negotiations he would have to
take it up with Manager Fuller. On cross-examination Victory admitted that
employees who were even recognized as leaders in the Union got their vacations.
Overcash told John Ivey that he did not qualify for a vacation because Ivey had not
been with the Company for a year, and that he could not do anything on Ivey's
17 In the late stages of the negotiations it was agreed by the parties and the Federal
arbitrators involved that these three Items were the main stumbling blocks in reaching
a final contract.
19 Keesee attributed a statement to Overcash to the effect that if he had not voted for
the Union the Company would have given him a week's vacation and more money How-
ever, on cross -examination Keesee admitted that Overcash had told him that he could not
discuss these matters as it would now be up to the Company and the Union.
GRINNELL COMPANY, INC. 1341
requests for a vacation and more money because the Union was in the plant. In
essence Ivey's testimony itself amply demonstrates that these were the statements
made to him by Overcash. For reasons and on the basis heretofore mentioned I
have rejected all other testimony by the witnesses for the General Counsel attributed
by them to Overcash. On September 8, 1964, the Company posted a notice to all
employees stating that should a strike be called the plant would remain open, and
that all employees who did not report for work would be permanently replaced.
The Act and Board decisions recognize that an employer has the right to con-
tinue operating his business by hiring replacements for striking employees. Whether
an employer has discharged strikers or has merely notified them that it intends to
replace them depends on substance rather than on the form of words used by
the employer. As the Board said in Redwing Carriers: 16
. . where it is clear from the record that the employer acted only to preserve
efficient operation of his business and terminated the services of the employees
only so it could immediately or within a short period thereafter replace them
with others willing to perform the scheduled work, we can see no reason for
reaching different results solely on the basis of the precise words, i.e., replace-
ment or discharge, used by the employer, or the chronological order in which
the employer terminated and replaced the employees in question.
It seems plain to me in the circumstances of this case that the notice posted by the
Company, and the statements made by Overcash to employees, did no more than
notify or inform employees that if they refused to work the Company would hire
replacements so that the plant could continue to operate. Since the word "replaced"
was used there can be no question of the legality of the Respondent's conduct.20
Moreover, there is absolutely no evidence that the employees were in any way
influenced in their conduct by Overcash's statements or by the notice put up on the
bulletin board. The questioning by Overcash of Knight, as aforestated, also had no
influence on him as Knight went on strike with the others. In all the other instances
Overcash merely informed employees what the plant rules were or told them that
he himself could not act on their requests as the Company and the Union were in
negotiations. Under these circumstances and facts the Company committed no
unlawful 8 (a) (1) violations, and I so find.
The General Counsel maintains, and the complaint alleges, that the strike on
September 9 was an unfair labor strike due to the Respondent's refusal to bargain
and because of unlawful promises, implied threats, and interrogations. Since I have
found that the Company was not guilty of any such practices, the strike must be
deemed an economic strike, and as such the Company had the right to permanently
replace the strikers, and that there was accordingly no obligation on Respondent's
part to reinstate the strikers who had been so replaced. There is no testimony or
contention whatsoever that the Company discriminatorily failed to rehire strikers as
openings were available after the strike was terminated. Permanently replaced
economic strikers merely have the right not to be penalized for their concerted
activity, and are not entitled to preferential status in hiring. They are in the position
of applicants for new employment and must present themselves for employment at
times where there are job openings. As far as I can ascertain the Company followed
legitimate procedures under the circumstances and events here, and therefore there
are no 8(a) (3) violations on reinstatement of strikers as alleged.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3. The allegations of the complaint that the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(1), (3), and
(5) of the Act have not been sustained.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law , and upon
the entire record in this case, it is recommended that the complaint herein be dis-
missed in its entirety.
11 Redwing Carriers , Inc 137 NLRB 1545, 1547
20 Missoula Motel Association , et at., 148 NLRB 1477.