Hilton Mobile Homes

National Labor Relations Board - Board Decisions

Nov 16, 1965

155 N.L.R.B. 873 (N.L.R.B. 1965)

HILTON MOBILE HOMES 873•
(c) Notify the Regional Director for Region 12, in writing , within 20 days from the
date of the receipt of this Decision , what steps the Respondent has taken to comply
herewith.8
8In the event that this Order Is adopted by the Board , this provision shall be modified
to read, "Notify said Regional Director , in writing , within 10 days from the date of this
Order , what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL bargain with International Brotherhood of Boilermakers, Iron Ship
Builders, Blacksmiths , Forgers and Helpers, AFL-CIO, Local 609, as the
representative of our employees.
All our employees have the right to join or assist a union. WE WILL NOT ques-
tion them as to whether they support a union, threaten them for doing so, offer
them benefits in an effort to get them to leave the union, or interfere with them,
in any way because of their union activity.
I.M. MACHINERY CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,.
and must not be altered , defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its provi-
sions, they may communicate directly with the Board 's Regional Office, Room 706
Federal Office Building, 500 Zack Street, Tampa , Florida, Telephone No. 228-7711.
Hilton Mobile Homes and Key City Lodge No. 1238, International
Association of Machinists, AFL-CIO. Case No. 18-CA-185...
November 16, 1965
DECISION AND ORDER
On March 5, 1965, Trial Examiner James V. Constantine issued his
Decision in the above -entitled proceeding , finding that the Respond-
ent had engaged in . and was engaging in certain unfair labor prac-
tices within the meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner 's Decision . He also found that the Respondent had not
engaged in other unfair labor practices and recommended that the
complaint be dismissed as to them . Thereafter , the General Counsel
filed exceptions to the Trial Examiner 's Decision and a supporting
brief . The Respondent also filed exceptions with a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-Inember panel [Members Fanning, Brown, and
Jenkins].
155 NLRB No. 57.
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner 's Decision, the exceptions, the briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner to the extent consistent herewith.
1. We do not agree with the Trial Examiner that Respondent vio-
lated Section 8 (a) (1) of the Act by taking pictures of the strikers on
May 6 and 8, 1964. Respondent readily admits the taking of pictures,
but contends that they were taken on advice of counsel and were used
as evidence in the State court injunction proceeding. In the absence
of any showing that Respondent coupled the picture taking with
threats or actual reprisals , such conduct was not in all the circum-
stances violative of Section 8(a) (1).1
2. The Trial Examiner found that Respondent violated Section
8(a) (5) when on February 1, 1964, it posted certain rules pertaining
to employee conduct in the plant. The record shows that the bulk of
these rules related to garbage and trash disposal, horseplay, smoking,
telephone calls, and the taking of company property from the prem-
ises . The Trial Examiner found that, during negotiations, plant
rules relating to "smoking, horseplay, and other matters" were dis-
cussed with the Union. In these circumstances, we disagree with his
conclusion that Respondent violated Section 8(a) (5) when, on Feb-
ruary 1, 1964, following these discussions, it posted the rules.2 We
agree , however, with the Trial Examiner that Respondent violated
8(a) (5) of the Act when, in April 1964, it unilaterally posted a rule
prohibiting the taking of toolboxes home. It appears that thereto-
fore employees had been permitted to use company tools at home. In
such circumstances, we conclude that the unilateral discontinuance
of this employment privilege violated Section 8 (a) (5) of the Act.
3. We find that Respondent did not violate Section 8(a) (5) of the
Act when it laid off employees in late November 1963. The record
does not support the Trial Examiner's finding that Respondent con-
summated the November 26 layoff without adequate prior notice to or
consultation with the Union. The record shows that, during the meet-
ings of November 20 and 21, Respondent and the union representa-
tives, including the employee committeemen, discussed the annual
seasonal layoff that usually occurred in the latter part of November.
1 Member Brown, in agreement with the Trial Examiner, would find the picture taking
to be a violation of Section 8(a) (1), particularly in view of Respondent's contemporaneous
announcement that "similar acts of work stoppages" would be grounds for immediate
discharge. However, in reaching this conclusion, Member Brown does not rely on the
Trial Examiner's references to the fact that the picketing did not violate 8(b) (1) (A) of
the Act or that "oral testimony" would have been adequate in the injunction case.
3 Since it was not alleged to be unlawful , we shall not find a violation because of rule 2,
which would appear to be an invalid "no-solicitation" rule. See Stoddard -Quirk Alanu
factoring Co., 138 NLRB 615.
HILTON MOBILE HOMES 875
The Union, recognizing the necessity of a layoff, insisted that selec-
tion for layoff be determined on the basis of plantwide seniority.
Respondent took the position that all previous layoffs had been
effected on the basis of departmental seniority and that the forth-
coming layoff would be handled in the same way unless and until the
parties reached an agreement on seniority that required some other
method. Following the layoff of two employes affected, the Union
largely complained that the layoff was not on the basis of plantwide
seniority. Later, the parties agreed upon a seniority basis for lay-
offs. Under all the circumstances, we conclude that Respondent did
not refuse to bargain about the layoff in violation of Section 8 (a) (5)
of the Act .8
4. We disagree with the Trial Examiner's conclusion that Respond-
ent did not violate Section 8(a) (3) of the Act when it discharged
those employees who had gone out on strike .4 The record is clear
that the striking employees were engaged in a strike in furtherance
of their bargaining efforts, and the strike was initiated and led by
employee members of the bargaining committee. In addition, al-
though the union representative did not order, authorize, or give prior
approval for the strike, he ratified the strikers' actions immediately
upon being advised of the circumstances and, through negotiations
with Respondent, gave full support to the employees.5 Having dis-
charged its employees for engaging in protected concerted activities,
we find that Respondent violated Section 8(a) (3) and (1) of the
Act .6
THE REMEDY
It has been the Board's established practice to award striking
employees, who are discharged while they are on strike, backpay only
from the date on which they make an unconditional application for
reinstatement or have otherwise indicated their availability for
employment. Contrary to this practice, however, the Trial Exam-
iner directed that the Respondent make the discharged strikers whole
for any loss of pay they may have suffered from the date of their dis-
charge. Respondent stipulated that on or about May 18, 1964, 32
employees whose names are listed in Schedule 1, Appendix A, sent
unconditional offers to return to work and that Respondent received
these offers on the dates listed next to their names. As to these 32
$ See Instrument Division, Rockwell Register Corporation, 142 NLRB 634, 642-643.
* We do not agree with Respondent's contention that as some of the strikers left their
jobs or joined the strike after the speech of March 6 and the letters of March 7 and 8,
they could not have been "discharged." The record clearly shows that Respondent treated
all of the strikers alike , considering them as having been terminated , particularly as re-
gards reinstatement and job openings , regardless of when they went on strike . In view of
our finding that the employees were unlawfully discharged by Respondent, we find it
unnecessary to determine whether or not they were unfair labor practice strikers.
6 It. C. Can Company, 140 NLRB 588, 594-597.
G Liberty Electronics Corp., and Flight Electronic Supply Corp ., 138 NLRB 1074.
'876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, we shall direct that their backpay shall be computed start-
ing the day following the day their offers to return to work were
received by Respondent, and that Respondent's liability for such
backpay shall terminate on the day of reinstatement or the day work
is made available to the employees, whichever occurs first.
Several employees, all who are listed in Schedule 2, Appendix A,
did not make any request for reinstatement on or about May 18.
Accordingly, Respondent's backpay liability as to them, if any, shall
not begin to run until the date of their offer to return to work.
At various times, Respondent offered reinstatement to all striking
employees, and on July 23, 1964, Respondent offered all of the strik-
ers listed in Schedule 3, Appendix A, who had not as of that date
returned to work, a "job at your former or substantially equivalent
position without loss of or prejudice to any of your former rights and
privileges." These employees were directed to notify Respondent
not later than August 3, 1964, of their intentions. Prior to August 3,
15 employees who are listed in Schedule 4, Appendix A, advised
Respondent of their intention to return to work. Respondent notified
this group that they should report to work on August 10. As to these
15 employees, Respondent's liability for backpay shall cease as of
August 10, or on the date the employees in this group actually returned
to work, whichever occurred first.
The nine remaining strikers whose names are set out in Schedule 5,
Appendix A, did not communicate with Respondent at all with regard
to the July 23 offer of reinstatement. As to these employees, with the
exception of Virgil Hyde and Clark Saeugling, Respondent's liability
for backpay shall cease as of August 3, 1964, the suspense date fixed
in Respondent's July 23 offer of reinstatement. We also find, in
agreement with Respondent, that having offered these nine employ-
ees reinstatement on July 23, 1964, Respondent is under no obligation
to offer these employees reinstatement again. As to employees Hyde
and Saeugling, since they made no request for reinstatement at any
time, and in view of their implicit rejection of Respondent's July 23
offer of reinstatement, we find that Respondent has no liability to
them for backpay.
As we have found that Respondent has engaged in certain unfair
labor practices prohibited by Section 8(a) (1), (3), and (5) of the
Act, we shall order that it cease and desist therefrom and that it take
specific affirmative action, as set forth below, designed to effectuate the
policies of the Act. In view of the scope of the violations found, par-
ticularly the unlawful discharges in violation of Section 8(a) (3) of
the Act, we believe a broad order is warranted to prevent repetition
of the same or similar conduct by Respondent.
In view of the finding that Respondent unlawfully discharged
employees engaged in a lawful strike, we shall direct Respondent to
HILTON MOBILE HOMES 877
make whole all of those who were unlawfully discharged for any loss
of earnings suffered thereby . In making them whole , Respondent
shall pay to each a sum of money equal to that which he would have
earned as wages from the dates as outlined in the section of this Deci-
sion entitled "The Remedy ," as the case may be , less his net earnings
during such period . Such backpay is to be computed on a quarterly
basis in the manner established by F. W. Woolworth Company, 90
NLRB 289, with interest thereon at 6 percent per annum , as set forth
in Isis Plumbing c6 Heating Co., 138 NLRB 716. Respondent will
also be directed to preserve and, upon request, make available to the
Board or its agents , all pertinent records and data necessary to ana-
lyze and calculate the amount , if any, of backpay due.
Upon the basis of the foregoing findings of fact , and upon the
entire record in this case , we make the following:
CONCLUSIONS Or LAw
1. Key City Lodge No. 1238, International Association of Machin-
ists, AFL-CIO, is a labor organization within the meaning of Section
2 (5) of the Act.
2. Respondent is an Employer within the meaning of Section 2(2)
,of the Act, and is engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
3. By adopting and posting new plant rules about the use of plant
toolboxes without prior notification to or consultation with Lodge
No. 1238, Respondent has engaged in an unfair labor practice as
defined in Section 8(a) (5) and (1) of the Act.
4. By threatening strikers with discharge if they struck again after
returning to work, Respondent has engaged in an unfair labor prac-
tice within the meaning of Section 8 (a) (1) of the Act.
5. By discharging employees engaged in a lawful strike, Respond-
ent has engaged in unfair labor practices within the meaning of Sec-
tion 8(a) (3) and (1) of the Act.
6. The aforesaid unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
7. Respondent has not engaged in any other unfair labor practices
as alleged in the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondent, Hilton Mobile Homes, Guttenberg, Iowa, its officers,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Threatening employees with discharge for engaging in a law-
ful strike or other protected concerted activity.
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Discharging employees for engaging in a lawful strike or other
protected concerted activity.
(c) Posting new plant rules about taking plant toolboxes home,
without prior notification to or consultation with Lodge No. 1238.
(d) In any other manner interfering with, restraining, or coercing
employees in their right to self-organization, to form, join, or assist
any labor organization, to bargain collectively through representa-
tives of their own choosing, to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection, or
to refrain from any or all such activities
2. Take the following affirmative action which it is found will
effectuate the policies of the Act.
(a) Make whole the employees named hereafter, in the manner and
to the extent prescribed in the section of this Decision entitled "The
Remedy," for any loss of pay they may have suffered by reason of
their discharge, with interest at the rate of 6 percent :
Robert Dettbarn Roger Torrey Robert Schroeder
Gene Fischer Roger Hinzman Richard Boge
James Horstman Eugene Preston Kenneth French
Lyle Jackson Ronald Judkins Robert Radabaugh
Lyle Morley Dale French Daniel Boge
Lyle Glawe Cyrenus Elsinger James Eilers
Dale Meyer Tom Elsinger Jackie Harbaugh
Carson Barnhart Eugene Behrend Curtis Torrey
Loren Barnhart Lyle Christen John May
Robert Aulwes Fred Dorl Kenneth Schroeder
Eugene Sheber Dennis James Billie Smith
Clyde Kruse William Kruse Martin C. Walter
Dennis Randall
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its plant in Guttenberg, Iowa, copies of the attached
notice marked "Appendix B." I Copies of said notice, to be furnished
by the Regional Director for Region 18, shall, after being duly signed
by the Company's representative, be posted by the Company imme-
diately upon receipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
7 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals , Enforcing an Order."
HILTON MOBILE HOMES 879
be taken by the Company to insure that said notice is, not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 18, in writing, within
10 days from the date of this Order, what steps have been taken to
comply herewith.
IT IS FURTHER ORDERED that the complaint, in all other respects, be
dismissed.
APPENDIX A
Schedule 1
The following employees ' unconditional offers to return to work
were received by Respondent on the dates following their names :
Carson Barnhart----- May 18 John May__________ May 19
Loren Barnhart------ May 18 James Eilers_______ May 19
Cyrenus Elsinger____ May 19
Robert Dettbarn ----- May 19
Thomas Elsinger ----- May 19
Daniel Boge --------- May 19
Richard Boge -------- May 19
Dale R. French______ May 19
Jackie D. Harbaugh__ May 19
Martin C. Walter____ May 19
Curtis Torrey________ May 19
Eugene A. Preston___ May 19
Dennis A. James_____ May 19
Ronald Judkins______ May 19
Ed Sheber ----------- May 19
Lyle Jackson________ May 19
Gene Fischer_______ May 19
Clyde Kruse________ May 19
Robert Radabaugh__ May 19
Bob Aulwes --------- May 19
Billie Smith________ May 19
Fred Dorl__________ May 19
Roger Hinzman____ May 19
Roger Torrey______ May 19
Lyle Morley________ May 19
Lyle Glaive --------- May 19
Dale Meyer-------- May 19
Kenneth French____ May 21
James Horstman____ May 21
Lyle Christen------- May 25
Schedule 2
The following employees did not make an offer to return to work
on or about May 18, 1964:
Eugene Behrend Kenneth Schroeder Dennis Randall
William Kruse Clark Saeugling Robert Schroeder
Virgil Hyde
Schedule 3
The following employees who had not yet returned to work but
had made application on or about May 18 were, on July 23, 1964, sent
offers to return to work :
Daniel Boge Gene Fischer Dale Meyer
Lyle Christen James Horstman John May
Fred Dorl Dennis James Billie Smith
Robert Dettbarn Lyle Jackson Martin C. Walter
James Eilers Curtis Torrey Jackie Harbaugh
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On July 23, 1964, Respondent also sent offers to return to work to
those employees listed in Schedule 2 above, who had not, as of July 23,
applied for reinstatement.
Schedule 4
The following employees accepted Respondent's offer of July 23
to return to work :
Eugene Behrend Dennis Randall Jackie Harbaugh
Lyle Christen Robert Schroeder Curtis Torrey
James Eilers Martin Walter John May
Dennis James Daniel Boge Kenneth Schroeder
William Kruse Fred Dorl Billie Smith
Schedule 5
The following employees did not answer or accept Respondent's
offer or reinstatement dated July 23, 1964.
Robert Dettbarn Virgil Hyde Lyle Morley
Gene Fischer Dale Meyer Lyle Glawe
James Horstman Lyle Jackson Clark Saeugling
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT threaten employees with discharge for engaging-
in a lawful strike or other protected concerted activity.
WE WILL NOT discharge employees for engaging in a lawful
strike or protected concerted activities.
WE WILL NOT adopt or post new rules regarding taking tool-
boxes home without first bargaining thereon with Key City
Lodge No. 1238, International Association of Machinists, AFL-
CIO, or any other labor organization representing our employees
in the appropriate unit.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the right to self-organization, to form,
join, or assist the above-named or any other labor organization,
to bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain
from any or all such activities.
WE WILL bargain collectively with the above-named Key City
Lodge No. 1238, as the exclusive bargaining representative of our-
HILTON MOBILE HOMES 881
employees in the unit described below, with respect to the adop-
tion and posting of new plant rules affecting such employees. The
unit is:
All production and maintenance employees at our Gut-
tenberg, Iowa, plant, excluding all office employees, profes-
sional employees, guards, watchmen, and supervisors as
defined in the Act.
WE WILL make whole the following named employees for any
loss of pay they may have suffered by reason of their discharge,
in the manner and to the extent prescribed in the section of the,
Board Decision entitled "The Remedy."
Robert Dettbarn Roger Torrey Daniel Boge
Gene Fischer Roger Hinman James Eilers
James Hostman Tom Elsinger Jackie Harbaugh
Lyle Jackson Eugene Behrend Eugene Preston
Lyle Morley Lyle Christen Ronald Judkins,
Lyle Glawe Fred Dorl Dale French
Dale Meyer Dennis James Cyrenus Elsinger•
Carson Barnhart William Kruse Curtis Torrey
Loren Barnhart Dennis Randall John May
Robert Aulwes Robert Schroeder Kenneth Schroeder
Eugene Sheber Richard Boge Billie Smith
Clyde Kruse Kenneth French Martin C. Walter
Robert Radabaugh
HILTON MOBILE HOMES,
Employer.
Dated---------------- By------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 316 Federal Building, 110 South Fourth Street, Minneapolis,
Minnesota, Telephone No. 334-2611, if they have any questions con--
cerning this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case is before Trial Examiner James V. Constantine of the National Labor
Relations Board upon a complaint issued on July 14, and amended on July 27, 1964,,
by the General Counsel of the Board, through the Regional Director for Region 18.
The complaint is based on a charge, first amended charge , and second amended
charge , filed respectively on May 8, June 12, and July 14, 1964, by Key City Lodge
No. 1238, International Association of Machinists , AFL-CIO, naming Hilton Mobile
Homes as Respondent. In substance the complaint, as finally amended at the hearing,
alleges that said Respondent has violated Section 8(a)(1), (3 ), and (5 ), and that
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such conduct affects commerce within the meaning of Section 2(6) and (7), of the
National Labor Relations Act, as amended, herein called the Act. Respondent's
answer as amended at the hearing admits some facts but puts in issue the commission
of any unfair labor practices.
Pursuant to due notice, a hearing was held at Guttenberg, Iowa, from October 20
through 26 and November 16 through 20, 1964. All parties were represented at and
participated in the hearing and were granted full opportunity to introduce evidence,
examine and cross-examine witnesses, submit briefs, and offer oral argument.
Respondent and the General Counsel argued orally at the close of the case and have
also submitted briefs.
When the General Counsel rested his case Respondent moved to dismiss the sub-
stantive portions of the complaint. Before I passed on this motion, the General
Counsel withdrew paragraphs Nos. 16A3 and 16A6 of the complaint. Immediately
thereafter I granted said motion to the extent that it attacked paragraph No. 16B of
the complaint and denied it in all other respects.' At the close of the case Respondent
renewed its said motion to dismiss. I reserved ruling on it insofar as it related to para-
graphs Nos. 10 and 11 of the complaint and otherwise denied it. Disposition of the
reserved part is made herein by the findings of fact and conclusions of law recited
hereafter. At the hearing I also (1) denied the General Counsel's motion to strike
a part of the answer, (2) denied in part, as a matter of discretion, Respondent's
motion for a bill of particulars because untimely filed on the opening day of the
hearing, and (3) denied Respondent's motion to dismiss before any evidence was
received because I was of the opinion that the complaint was sufficient in law. In its
brief Respondent vigorously contends that it was denied due process of law in the
pretrial stage of the proceeding and also by the failure to grant its motion at the hear-
ing for a bill of particulars. Since another Trial Examiner by prehearing interlocutory
rulings has passed on these contentions, I am of the opinion that I should not review
those rulings even assuming that I may pass upon another Trial Examiner's inter-
locutory decisions . Mid-West Towel & Linen Service, Inc., 143 NLRB 744, 745.
Accordingly, I deny said contentions.
Upon the entire record in this case, including the stipulation of the parties, and
from my observation of the witnesses , I make the following:
FINDINGS OF FACT
I. AS TO JURISDICTION
Hilton Mobile Homes, sometimes called Respondent or the Company herein, an
Iowa corporation, is engaged at Guttenberg, Iowa, in manufacturing and selling
mobile homes. During the year ending May 30, 1964, Respondent sold mobile homes
valued in excess of $800,000 to persons at points outside the State of Iowa. I find that
Respondent is engaged in commerce within the meaning of Section 2(6) of the Act,
and that it will effectuate the policies of the Act to assert jurisdiction over it in this
proceeding.
II. THE LABOR ORGANIZATION INVOLVED
Key City Lodge No. 1238, International Association of Machinists, AFL-CIO,
sometimes called Lodge 1238 or the Union herein , is a labor organization embraced
by the definition thereof in Section 2(5) of the Act.
M. THE UNFAIR LABOR P RACTICES
This case involves the alleged commission of unfair labor practices contravening
Section 8 (a)(1), (3), and (5) of the Act. About April 1963, the Union began to
organize Respondent's employees. In an election held on May 27, 1963, the Union
was designated by a majority of the employees in the unit described below to be their
collective-bargaining agent. That unit, which I find is appropriate under Sections
9(a) and 8(a) (5) of the Act, is composed of all production and maintenance employ-
ees of Respondent's plant at Guttenberg, Iowa, excluding all office employees, profes-
sional employees, guards, watchmen, and supervisors as defined in the Act. On
1 This allegation charged Respondent with insisting on using a tape recorder at bargain-
ing sessions . Southern Transport, Inc., 150 NLRB 305, Is distinguishable, for there the
company not only preconditioned negotiations upon a transcript of the proceedings, but
also required that such transcript be binding upon all parties. For a recent compilation
of cases in this field of the law see Union Employers' Section of Graphic Arts Association
of St. Louis, Inc. (St. Louis Typographical Union No. 8 , affiliated with International Typo-
graphical Union, AFL-CIO), 149 NLRB 750.
HILTON MOBILE HOMES 883
July 18, 1963, following the election which the Union won, the Union was certified
by the Board's Regional Director for Region 18 as the exclusive bargaining representa-
tive in said unit.
A. Interference , restraint , and coercion
1. Photographing the pickets
On May 6 a group of employees concertedly refused to work. As recited else-
where in this Decision , I find this is a strike . As Respondent 's Counsel Degnan 2
read a speech to them about 10 a .m., George Maitre , a Hilton salesman , took pictures
of the strikers . When Vice President Rome, who was out of town on May 6, returned
on May 8, he found a group of "former employees" picketing the plant. While these
employees engaged in picketing with banners and picket signs, Rome took motion
pictures of those in front of the main building "close enough with a picket sign I
could read."
Respondent contends the pictures were taken as evidence in support of a petition
for a State court injunction against illegal acts by the pickets . The only evidence of
such acts came from Lorish Kickbush , Respondent's purchasing agent. Counsel
Degnan testified he ordered the pictures for use in applying for a court injunction
But he did not describe the conduct alleged to be illegal . Moreover , Maitre took
pictures at the very inception of the strike while Degnan was speaking to the strikers.
Neither Maitre nor Rome described the allegedly illegal conduct which they photo-
graphed. Kickbush testified he observed 5 or 6 pickets at the main gates and 2 pickets
at other gates on the plant ; that employee Smith picked up and tossed rocks and said,
"We can put sugar in [Respondent 's gas] tanks "; 3 that he once saw 15 or 20 pickets
successfully ask a truckdriver not to take a load into the plant ; that on 2 other occa-
sions pickets induced truckdrivers not to cross the picket line; that pickets requested
company nonstriking employees not to cross the picket line; and that some pickets
followed the cars of nonstriking employees as they left the plant.
On this record I am unable to find that the conduct of the pickets is so flagrant that
Respondent would be warranted in taking pictures thereof. Their demeanor does not
violate Section 8(b) (1) (A) of the Act . Nor can it be said that this is misconduct
which would deprive the strikers of reinstatement . While it is true that this photo-
graphic evidence was used in a State court proceeding , I nevertheless find that it was
not crucial and that oral testimony thereof would have been adequate. Moreover,
Degnan ordered the pictures taken by Maitre at a time when no evidence discloses
anything even approximately approaching illegality; i.e., just as the strike began. No
necessity for such an early application for an injunction is discernible in the record;
i.e., within minutes after the inception of the strike.
Accordingly , I find that the picture taking described above amounts to interference,
restraint , and coercion prohibited by Section 8(a) (1) of the Act. Hudson Hosiery
Company (Monroe Road Plant ), 109 NLRB 1410, 1411 , Radio Industries, Inc., 101
NLRB 912, 914, 925 ; Preston Feed Corp., 309 F. 2d 346, 351 (C.A. 4).
2. Adoption of new plant work rules
Since 1957 Respondent has maintained on its bulletin boards a "no-solicitation"
rule. Its text could not be recalled by Elmer Rome, its vice president and general
manager. Rome remembers a notice being posted which reads "Beginning July 25,
1963, there shall be absolutely no soliciting on the premises of Hilton Mobile Homes."
About February 1, 1964, Respondent, without notifying or discussing with the
Union, posted certain work rules on its bulletin board as more fully described below.
Respondent contends that it negotiated the right to post rules But its evidence shows,
through McMahon and Degnan, only that rules were discussed and that such discus-
sions were in connection with Respondent's Exhibit No. 19C (mentioning "working
rules") and Exhibit No. 19B (authorizing the Company to make rules and regula-
tions). But these exhibits, although agreed upon and initialed by the parties, were
expressly subject to ratification by the employees, who had not yet voted on them.
Moreover, I find that the parties discussed horseplay, smoking, and other matters, but
no agreement was reached that Respondent was free to adopt rules thereon uni-
laterally. The circumstances of the posting are set forth immediately below.
3 No one questions Degnan's authority to act in this regard Hence I find he was an
agent of Respondent in so acting.
3 No sugar was ever reported in the tanks. There is no evidence that Smith attempted
to put any therein, nor is there evidence that Smith tossed rocks at anyone.
212-809-66-vol. 155 57
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About August 8, 1963, Vice President Rome called a meeting of employees for the
purpose of selecting a committee of employees to "check out" the bonus each week
Rome also remarked that Iowa "had an open shop" and that employees did not have
to join the Union unless they so desired . But rules were not mentioned.
Between 1958 and June 1963, no rules were posted in the plant. However, in
July 1963 a rule was posted in the plant prohibiting the solitation of union member-
ship anywhere on the Company's property. This is not alleged to be an unfair labor
practice.
In February 1964, Supervisor Wolf told employee French that new rules had been
posted for the first time on the bulletin board in the final finish department Later
that month French read them. Employees Dettbarn and Smith also read them on
February 19 and after. They are set out in the attached Appendix and in General
Counsel's Exhibit No. 6. Respondent contends these were discussed with the Union
prior to their being posted. However, I find only that McMahon objected to horse-
play and other matters, such as smoking , and Grogan agreed, but that this does not
amount to negotiating thereon. Respondent 's contrary evidence is not credited. I
further find that these rules were posted unilaterally ; i.e., without negotiating or con-
sulting thereon with the Union.
Employees French, Dettbarn, and Smith testified that no rule prior to April 1964
prevented an employee from taking toolboxes home About April 1964, a new rule
was posted that no company tools could be taken home without permission. No
notice thereof was given to the Union prior to its promulgation . Hence I find that
action was unilateral.
Accordingly, I find the adoption and posting of the rules under the circumstances
set forth above violate Section 8(a)(5) and, derivatively, 8(a)(1) of the Act since
these were instituted without prior negotiation or consultation with the Union. But I
find that this conduct does not independently violate Section 8(a)(1).
3. Threatening strikers who returned to work
with discharge if they struck again
As found below in connection with the strike of May 6, 1964 , Jack Degnan,
Respondent 's counsel, read an announcement to the strikers at about 10 a in on that
day. (General Counsel 's Exhibit No. 40 .) In material part Degnan said , "You are
further advised that in the event of any similar acts of work stoppage such as this,
that such acts will be grounds for immediate discharge."
I am of the opinion , and find, that this interferes with, restrains , and coerces
employees in the exercise of the right to engage in lawful strike or other protected
activity , because it contains a threat of reprisals . I recognize that an employer is
vested with a right under Section 8 (c) to state his position to employees (Schick,
Incorporated, 118 NLRB 1160, 1163; Perkins Machine Company, 141 NLRB 697,
700), and to discharge employees engaging in misconduct . But if in fact no miscon-
duct occurred or if it turns out that the employer's position was illegal and not sanc-
tioned by the Act, he may be found to have committed an unfair labor practice even
though the employer acts in good faith in taking his position or in discharging
employees. N.L.R.B. v Burnup and Sims, Inc., 379 U.S. 21, 23 Hence the fact that
Degnan in the same speech termed the strike "an unwarranted work stoppage ... not
protected by the National Labor Relations Board" does not make it one. It is incum-
bent 4 upon Respondent to show that upon this aspect of the case the strike was either
illegal or unprotected . But elsewhere in this Decision I have found that the strike
was lawful as protected concerted activity . Hence Degnan incorrectly stigmatized
the work stoppage as unprotected by the Act.
Since the strike was lawful, those on strike were safeguarded by the Act against
discharge , a threat of discharge , or other reprisals for engaging in such conduct. It
follows that the foregoing threat by Degnan contravenes Section 8 ( a) (1) of the Act,
and I so find. See N.L.R.B. v. Burnup and Sims, supra, 23. No contrary result is
required because Respondent was not warned of the impending strike before it
occurred . Respondent was not entitled to such prior notice. N.L .R.B. v. Washington
Aluminum Company, Inc., 370 U.S. 9, 14.
4 The burden of proving no misconduct is on the General Counsel Rubin Bros Foot-
wear, Inc, at al., 99 NLRB 610, 611.
HILTON MOBILE HOMES 885
B. The refusal to bargain by instituting unilateral changes
It is contended that Respondent refused to bargain collectively with the Union in
that the former "unilaterally and without bargaining with or notification to the Union,
made changes affecting the wages and working conditions of employees in the Unit."
These alleged changes will be taken up seriatim.
1. The reduction in the work force
In August 1963, a serious fire destroyed one of Respondent's buildings. As a result,
about 18 production and maintenance employees were laid off. Another layoff was
effected about November 26, 1963, when work was slack. About 40 employees were
let go this time. Neither layoff was not discussed with the Union. Only the Novem-
ber layoff is here involved. Employees Dettbarn and James, who were in this group,
insisted to Union Representative Grogan that they had been laid off out of seniority.
In early December 1963, Grogan telephoned Degnan about this layoff. By letter
dated December 17, 1963, Grogan protested to Degnan not only the alleged failure
to follow seniority but also the failure to consult the Union before making the layoff.
In this letter Grogan also asked Degnan to make available a seniority list and the
rate of pay of each employee.
Respondent contends that the Union consented to the above layoff. But Respond-
ent's evidence shows no more than that, at the November 20, 1963, bargaining session,
McMahon mentioned that fall layoffs were inevitable annually because of the seasonal
nature of Respondent's sales, and that Grogan replied that he recognized there would
be annual layoffs. But Grogan also said, according to McMahon, that the layoffs
should be according to seniority, to which McMahon did not consent. McMahon
further testified that he could not agree to layoffs according to seniority until a
seniority clause was agreed upon by the parties. Thus I find no agreement whereby
the Union consented to unilateral layoffs.
Hence I find that the layoffs of November 26, 1963, were made unilaterally by
Respondent and that the Union did not waive its right to negotiate thereon. This
conclusion is strengthened by the facts, which I find, that Grogan wrote to Degnan on
December 17, 1963, protesting the unilateral layoffs (General Counsel's Exhibit No.
23), and also complained orally of such action at the December 1963 and Janu-
ary 1964 bargaining sessions, according to Respondent 's own evidence.
Accordingly, I find that, since the November 26 layoffs were consummated without
prior notice to or consultation with the Union , Respondent thereby violated Section
8(a)(5) and (1) of the Act. Exchange Parts Co., et al., 139 NLRB 710, 711, enfd.
339 F. 2d 829 (C.A. 5). See N.L.R.B. v. Benne Katz, etc., d/b/a Williamsburg Steel
Products Co., 369 U.S. 736. Lasko Metal Products, Inc., 148 NLRB 976, is dis-
tinguishable. But see N.L.R B. v. Southern Coach & Body Co. 336 F 2d 214 (C.A.
5). The recent Shell Oil cases, 149 NLRB 283 and 298 , and Westinghouse Electric
Corporation, 150 NLRB 1574, are distinguishable. Nor does Ador Corporation, 150
NLRB 1658, detract from the above result, for in Ador, unlike here, an express con-
tractual provision sanctioned unilateral layoffs.
2. Posting new plant rules
This action has been discussed above under Section 8 (a) (1) violations.
3. Elimination of the afternoon rest period
Employee Dale French testified that as of the date of the hearing herein employees
working 9 hours a day were entitled to one coffee break or rest period in the forenoon
of each day, and that this benefit was instituted in August 1963. In early May 1964,
French asked Dennis Wolf, his leadman (whom I find to be a supervisor under Section
2(11) of the Act), why an afternoon coffee break was not then being given. Wolf
replied that he did not know but would inquire into it. Shortly thereafter, Wolf told
French that "we weren't going to have any afternoon break."
Employee Smith testified that the employees at some time in the past received two
breaks (one in the morning and one in the afternoon) when they worked 9 hours a
day, but only one break for an 8 -hour day. He testified that he received but one break
in November 1963 and April 1964 when he worked 9-hour days. But he further
testified that he enjoyed two breaks from July to November 1963 on 9-hour days
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employee Preston testified that in July 1963, he received two breaks when he
worked 9 hours but that in October, November, and December, 1963, he received
but one break in a 9-hour day. He was called back to work on May 22, 1964. His
check of May 29 did not reflect a 5-cent-an-hour pay raise although other plant
employees received such a raise. Upon inquiring of Degnan about this, Preston was
told the raise was omitted as a bookkeeping error but that it would show up in the
next paycheck. On cross-examination, Preston also testified that beginning in Septem-
ber 1963 Respondent eliminated the afternoon coffee break on 9-hour days, and that it
had not since been restored. I have concluded elsewhere in this Decision that the sec-
ond break was unilaterally canceled before November 8, 1963. See concluding find-
ings as to work stoppage of May 6, 1964. Hence Section 10(b) of the Act
forecloses relief for such unilateral rescission of the second break.
4. Granting a wage increase to James Kickbush
In the complaint as modified by a bill of particulars it is alleged that "James
Kickbush was granted a unilateral wage increase of 10 cents per hour effective on or
about May 15, 1964." Kickbush did not testify. Documentary evidence supporting
this branch of the case (General Counsel's Exhibits Nos 48 and 49) discloses that
Kickbush's base rate at all times during the month of May 1964 was $1.55 an hour.
Thus no increase has been shown. It follows, and I find, that this part of the com-
plaint has not been established. Accordingly, I shall recommend its dismissal.
C. The work stoppage of May 6, 1964
As noted elsewhere in this Decision, Grogan met with the employees about April 9,
1964, and discussed the status of the negotiations with them. After Grogan spoke to
Degnan in late April, Grogan advised the employees' committee that Degnan had not
yet given a definite answer as to when the negotiations would start again although
Degnan was twice asked to set a date therefor. On May 6, Grogan learned that
the employees had walked out on that day. Thereupon he proceeded to the plant,
arriving about 10 45 a.m. After speaking to some employees congregated in front
of the plant, Grogan called on Degnan about noon asking that the parties meet on
May 12 for a week "to commence negotiations ... [and] suggest[ing] that we get these
groups back to work." Degnan replied he wanted the men back to work because it
was an unauthorized strike, and wanted to know why the Company had not been
informed of it. Grogan defended the employees by asserting that "these strikes,
when they happen, the company isn't advised in advance of them taking effect "
Degnan and Supervisor Ernster testified that Grogan then characterized it as an
"economic strike." Grogan also offered to ask the men to return without loss of
rights. Degnan and Sales Manager Ernster testified that Grogan offered to ask the
men to return if Respondent signed a contract and restored the afternoon coffee break.
Degnan added that he could do nothing until he took up the matter with Vice Presi-
dent Rome, who was out of town, but was agreeable to a week of negotiations. By
letter dated May 13, 1964, Grogan wrote Degnan that, among other things, on May 6
"the men went on strike because of these delays and other conditions." 6 Grogan
testified that the men "weren't striking over that contract," or over the management
clause, or to protest McMahon's representation of Respondent.
Then Grogan left. When he returned about an hour later, Degnan informed
Grogan that he had been unable to reach Vice President Rome. Grogan left again,
talked to the men, and returned in about an hour. This time Respondent's Supervisor
Ernster was again present with Degnan. When Grogan asked Degnan to "sit down
for an entire" week to bargain and to settle the walkout, the latter "seemed to'be
agreeable" but refused to pinpoint any particular week. Grogan suggested the week
of May 25. Grogan also insisted that the strikers be put back to work without loss
of any rights. Degnan feared this might be an unfair labor practice. Grogan then
asked that Degnan notify him of any company decision regarding the strikers. Later
in the day Degnan telephoned Grogan that Respondent refused to put the strikers
5 When Grogan arrived at the plant about 10:45 a.m. on May 6, he spoke to the em-
ployees gathered on the street They told him that they had been discharged "as of
now" and , when he inquired "what is the problem ," they replied that the Company had
taken away their coffee break and "there was no date set for negotiations ." However, the
loss of the coffee break had not been complained of by any employees prior to this.
6 Grogan testified that the only other "conditions " was the loss of the coffee break,
which he considered "insignificant."
HILTON MOBILE HOMES 887
back to work. At one of the meetings on May 6 Degnan read a speech to Grogan
which Degnan had previously read to the employees. (General Counsel's Exhibit
No. 40.) This is set out verbatim below.
About 4 p.m. on May 6 Degnan informed the strikers that he had contacted Vice
President Rome and that the "offer" of the strikers was refused.
The details of the above strike are recited in the following paragraphs.
In August 1963, the employees elected a shop committee On May 5, 1964, this
committee met. As a result of that meeting 29 of the employees went on strike at
9 a.m. the next day, May 6, and the following day, May 7. They are Dale French,
Kenneth French, Bob Dettbarn, Eugene Preston, Dennis James, Jim Horstman, James
Eilers, Lyle Christen, Roger Torrey, Curt Torrey, Gene Fischer, Lyle Morley, Virgil
Hyde, Jack Harbaugh, Bob Radabaugh, Dale Meyer, Ed Sheber, Loren Barnhart,
Ronald Judkins, Lyle Jackson, Eugene Behrend, Daniel Boge, and Richard Boge.
Others who later joined the strike are employees Walter, William and Walter Kruse,
Hinzman, Elsinger, Randall, Schroeder, and a few others. As soon as the employees
walked out, Foreman Kann told them to go back in and punch out, but they did not.
About 10 a.m. on May 6, L. Jack Degnan, Respondent's counsel, read a short
speech to those striking employees who were in the vicinity of the plant. See General
Counsel's Exhibit No. 40. It reads as follows:
As you probably know, Elmer Rome, the General Plant Manager, left on an
extended business trip last night. Robert Ernster, in his absence, is designated
the Plant Manager.
You have voluntarily left your job. This is an unwarranted work stoppage.
Unwarranted work stoppages such as this are not protected by the National
Labor Relations Board.
Since this is the first time that there has been such a work stoppage at this
plant, we are giving you an opportunity to return to your jobs within ten (10)
minutes after the end of these remarks. In the event that you fail or continue to
refuse to return to your job within the ten minutes allowed, such failure shows
us that you no longer want to work on your job and desire to voluntarily quit,
and our records in this plant will show that you have voluntarily quit your job.
Employment in this factory will be replaced by individuals who want and need
work. You are further advised that in the event of any similar acts of work
stoppage such as this, that such acts will be grounds for immediate discharge.
Departing from his prepared text, Degnan further said that he would give the
employees until 10 30 a.m. to return to work, and if they did not do so they would
start as new employees at $1.25 an hour.
While Degnan thus spoke to the strikers, George Maitre, a company salesman, took
pictures of the strikers. About May 8 Vice President Rome took motion pictures of
the strikers and pickets. After lunch the strikers prepared signs and picketed there-
with. These read "Hilton's Unfair," "Hilton's Unfair to Common Labor," "Local
1238 on strike," and "No contract, No work." The strike continued to May 22, 1964.
On May 12, employees Dale French, Dettbarn, Smith, and Preston called on
Degnan, company counsel. Degnan told them, in response to their inquiry, that they
had misunderstood employee Randall. A few moments before Randall had insinu-
ated to them that the Company was ready to negotiate with the men on the return of
the strikers. Degnan insisted to the group before him that such negotiations could
only be conducted in Grogan's presence. The employees then asked to have their
afternoon break restored, but Degnan answered that it would have to be dealt with
in "negotiating meetings" between Grogan and McMahon.
On May 18, 1964, striker Dale French wrote two letters to Respondent requesting
unconditional employment for himself and striker Richard Boge. About May 20
Dettbarn wrote a similar letter. On May 20 French received a letter to work on
May 22 and he did. French testified he struck for more wages, plantwide seniority,,
a shorter term contract, restoration of the coffee break, deletion of the management
clause, because contract negotiations were slow, and to obtain a contract.
All other employees 8 on strike about May 18 or I or 2 days later also mailed
letters identical to that of French and Dettbarn in which they requested "unconditional
employment."
7 On cross-examination French testified that a "form of plant seniority " had been agreed
upon during the negotiations preceding the strike.
8 Except Eugene Behrend, Virgil Hyde, William Kruse, Dennis Randall, Kenneth Schroe-
der, Robert Schroeder, and Clark Saeugling.
SSS DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By letter dated May 6, 1964, Acting Plant Manager Ernster wrote to employee
Smith as follows: (General Counsel's Exhibit No. 42.)
May 6, 1964.
Dear Mr. Smith: This morning you left your work without the permission
of your Supervisor. The Company talked with those of you who left your work
as a group and asked you to return to work, to punch your time card and work
at your regular assignments. Your failure to return to work indicates to us that
you have quit your job and no longer desire to be an employee of Hilton Mobile
Homes. Your decision we regret.
In view of our sales commitment, it is necessary for us to operate a full shift
and each and every job must be filled. Accordingly, we will immediately start
to replace you and will take the necessary steps to fill your job on a permanent
basis.
Friday of this week is our usual pay day and you will be paid in keeping with
our custom. Immediately after this pay period has been processed in our
Accounting Department, your final check will be processed and mailed to you.
In the event you have left any personal belongings, please contact the Super-
visor before entering the plant, and management will make the necessary arrange-
ments for you to obtain your personal belongings.
Very truly yours,
HILTON MOBILE HOMES,
By Robert J. Ernster
ROBERT J. ERNSTER
Acting Plant Manager.
RJE. mn
Similar letters were sent to all the strikers. A copy of this letter, together with an
explanation, was posted on the company bulletin board. That explanation in part
reads- "We are now making every effort to fill the vacancies in our employment struc-
ture when some of our employees quit their jobs yesterday." (Respondent's Exhibit
No. 38.)
About May 18 employee Smith wrote to Respondent "I hereby make an uncondi-
tional request for employment." By letter dated May 29, Respondent replied that.
(General Counsel's Exhibit No. 43.)
Mr. Billie E Smith
Guttenberg, Iowa
May 29, 1964.
Dear Mr. Smith: We recently received your request for employment. We
have withheld our reply to your letter until such time that we first had an oppor-
tunity to discuss the strike with your Bargaining Agent This was done on
Wednesday and Thursday of this week
You participated in an economic strike and during that period and before your
written offer to return to work was received, your job had been filled by the
Company on a permanent basis.
Under these conditions, your employment terminated as of the date that you
were permanently replaced.
Accordingly, if you have personal effects in the plant, please arrange with the
front office for these belongings.
We discussed with the Union the termination of the strikers' Blue Cross Insur-
ance as of May 31, 1964. In keeping with our policy of terminating insurance
on employees who have terminated their employment, yours terminates as of
the end of the month following your permanent replacement. Should you desire
that the insurance be carried for a short period and until such time that you may
obtain insurance coverage elsewhere, please make payment at our general office
on the full amount of the premium including the Company's portion, on or
before June 5, 1964
This arrangement is presently being made with the Insurance Company for
your benefit during this interim period.
If you are interested in employment with the Company as openings may occur
in the future, please complete a new application for employment at our general
office. Yours, along with all other applications will then be considered for fur-
ther vacancies as they occur.
Yours very truly,
HILTON MOBILE HOMES,
Elmer Rome
General Manager.
ER•mn
HILTON MOBILE HOMES 889
Similar letters were sent to 16 other strikers . See Respondent ' s Exhibit No. 45 for
the list
Smith also received a copy of a letter written by Degnan to Grogan , dated June 24,
1964, and reading as follows ( General Counsel 's Exhibit No. 44):
June 24, 1964.
Mr. John Grogan , Business Representative
Key City Lodge No. 1238
Metal Trades Bldg -111 West Sixth Street
Dubuque, Iowa
Re Hilton Mobile Homes
Dear Friend John: This letter is written prior to our next negotiating session
so, if you wish , you can refresh your recollection on some of the matters we
proposed to you at our last bargaining session on May 27th and May 28th, 1964.
You recall we spent considerable time discussing the plight of those economic
strikers who had been permanently replaced prior to their respective offers to
return to work. The Company stated that in order to alleviate this plight and
to try and get these strikers back to work, it would change its operation in such
a way as to create new jobs for these people . These new jobs would be very
similar to those held by these strikers prior to the strike, but with few minor
changes. -
The Company production process prior to the strike required a crew of men
to work on one line for awhile and to switch to a second line for awhile, and
then switch back to the first line, and so on. Now, it was proposed by the Com-
pany that it would set up two crews and eliminate the switching back and forth.
The elimination of the switching back and forth would be one of the main
changes in the new jobs from that of the old. In any event , these replaced
strikers were offered the same rate of pay for these new jobs as that which they
had on the jobs they left on the occasion which we subsequently learned was
a strike.
At the time of our negotiations , you felt that the above offer was good and
thought the replaced strikers ought to take these jobs However, they refused.
I am likewise of the opinion that the offer made is a good one, and feel that
these people are harming themselves by refusing the offer. In any event, the
offer has remained open since we made it and it is still open to these people.
If you still feel as I do, that is that these men should take these jobs, it would
be appreciated if you would speak to them again about this matter, for if they
will accept the jobs, we will have a better atmosphere for our contract bargain-
ing on June 29th. In fact, with this matter out of the way it is probable we may
be able to wrap up the few remaining issues and reach full agreement on the
contract.
To aid you in presenting this matter to the replaced economic strikers, we
are taking the liberty of mailing each of them a copy of this letter.
Very truly yours,
HUNT AND DEGNAN,
L. Jack Degnan
LJD maj
CC. Replaced Economic Strikers
By letter dated July 23, 1964, Respondent offered Smith his "former or substan-
tially equivalent position , without loss of or prejudice to any of your former rights
and privileges ." (General Counsel 's Exhibit No. 45. ) On August 1, Smith person-
ally called at Respondent 's office in response to that offer . By letter dated August 4,
1964 , Respondent offered Smith his "former job or substantially equivalent position"
and requested him to report for work on August 10 , 1964 (General Counsel's Exhibit
No. 46 ) On August 10, Smith reported for and started to work, where he also found
10 or 12 other strikers doing the same thing.
By letter dated May 18, 1964, employee Martin Walter made an "unconditional
request for employment ." On June 1 a secretary of Respondent by telephone told
Walter that Superintendent Kann desired to see him . At 4:30 that same afternoon
Kann offered to rehire Walter as a part-time employee to avoid "trouble " with the
Union. Prior to the strike Walter worked full time. Walter returned to work on
July 27, 1964
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By struggling through the exhibits and oral testimony I find that the strikers finally
had the following status: (See Respondent's Exhibit No. 45.)
Employment offered to- Offer accepted Offer rejected
Carson Barnhart. 5/18___________________________
Loren Barnhart, 5/18____________________________
5/19----------------------
Yes-------------------------------
Robert Auiwes, 5/20 _____________ 5/22--------------------
Eugene Sheber, 5/20---------------------------- 5/22-------------------------------
Clyde Kruse, 5/20_______________________________
5/22-------------------------------
Roger Torrey, 5/`220--- ---------- ------------------
5/22------------------------------
Roger Hmzman, 5/20_______________
5/22------------------------------
Eugene Preston, 5/20____________________________ 5/22--------------- -----
Ronald Judkms, 5/20____________________________ 5/22----------------------------
Dale French, 5/20-------------------------------- 5/22-------------------------------
Richard 13oge,5/20______ _______________ 5/22-------------------------------
Cyrenus Elsinger, 5/20___________________________ 5/22- -----------------------------
Kenneth French, 6/1_____________________________
6/1--------------------------------
Tom Elsinger, 6/2--___ -------------
6/2--------------------------------
Robert Radabaugh,6/16------ ------------ -------
All others on 7/23------ ----------- ---------------
Asked to return 8/10
6/16------------------------------
All accepted except-
Robert Dettbarn
Gene Fischer
James Horstman
Virgil Hyde
Lyle Jackson
Lyle Morley
Lyle Glawe
Clark Saeiigling
Dale Meyer
Thus I find that all but the foregoing nine strikers had returned or agreed to return
to work by August 10, 1964.
Concluding Findings as to the Work Stoppage of May 6, 1964
It is my opinion, and I find, that the work stoppage of May 6 was a concerted
refusal of work by employees Hence it was a strike, and I so find. See Section
501(2) of the Act Further, I find that the strike was to protest the unilateral dis-
continuance of the afternoon coffee break, the failure to sign a contract, and the
delays in negotiating a contract Elsewhere in this Decision I have found that the
delays do not amount to dilatory tactics or surface bargaining prohibited by Section
8(a)(5) of the Act. And I have also found that the failure to sign a contract
resulted from an impasse over wages and the term of the contract, and that such
impasse, although flowing from Respondent's hard bargaining, does not constitute
a violation of Section 8(a)(5). If I can, I now find that the unilateral abolition of
the afternoon coffee break is an unfair labor practice. The question is whether the
strike against this unilateral action by the employer is an unfair labor practice strike
Initially I find that, on the General Counsel's own evidence, the coffee break was
taken away before November 1963. Thus employee French was unable to state
when this break was lost and employee Preston testified that it was abandoned in
October 1963. It is true that employee Smith testified that he enjoyed two breaks
a day in November 1963, but he also testified that he received but one a day in that
same November. Smith's testimony is so uncertain on this aspect of the case that
I cannot rely on it. Since I find that the afternoon break was lost before Novem-
ber 1963, I further find that no complaint may issue to remedy this unilateral action
because the charge was filed on May 8, 1964, more than 6 months thereafter. Section
10(b) of the Act outlaws complaints based on causes of action occurring more than
6 months next prior to the filing of the charge
Even though a complaint may not issue because barred by the above statute of
limitations, it would nevertheless seem, if this were an original proposition, that a
strike to remedy this unfair labor practice would be an unfair labor practice strike.
This is because a statute of limitations bars only the Board's remedy but does not
destroy the cause of action. N.L.R.B. v. A. E. Nettleton Co., et al, 241 F 2d 130,
133 (C A. 2). Cf. United Mine Woikers of Amerida v. Arkansas Oak Flooring Co.,
HILTON MOBILE HOMES 891
351 U S 62; David G. Leach, et al., d/b/a Brookville Glove Company, 114 NLRB
213, 214. Since the cause of action survived, a strike based upon it should be an
unfair labor practice strike. But the Board has held that I am precluded from find-
ing an unfair labor practice strike if the charge was not timely filed Greenville
Cotton Oil Company, 92 NLRB 1033. Hence I am constrained to find that the
strike of May 6, 1964, is an economic strike.9 As such it is a lawful protected con-
certed activity.
As economic strikers, the employees could be replaced any time before their
unconditional application for reinstatement. But the Act protects economic strikers
against discharge or reprisals for participating in or engaging in an economic strike.
Rubin Bros. Footwear, Inc., et al., 99 NLRB 610, 613. I find that the speech of
Degnan to the strikers constitutes a discharge, and that such discharge is prohibited
by Section 8(a)(1) of the Act. Brookville Glove Company, 116 NLRB 1282, 1290;
114 NLRB 213, 214, enfd. 234 F. 2d 400 (C.A. 3); N L.R.B. v. Globe Wireless, Ltd,
193 F. 2d 748, 750 (C.A. 9); Rubin Bios., supra. This is so even though Degnan
refers to the action of the men as "you have voluntarily quit your jobs." But I find
that they did not quit and refused to punch out when requested to do so by Supervisor
Kann. See General Electric, 150 NLRB 192; N.L.R.B. v. David G. Leach and Doyle
H. Wallace d/b/a Brookville Glove Company, 234 F. 2d 400 (C.A. 3). In fact, by
letter of May 29, 1964, Plant Manager Rome wrote to 16 of the employees that in
walking out on May 6 "you participated in an economic strike ." (General Coun-
sel's Exhibit No 43 and Respondent's Exhibit No. 45), and Respondent' s counsel,
Degnan, by letter of June 24, 1964, to Grogan, described the men as "economic
strikers" (General Counsel's Exhibit No 44). In fact Respondent's brief calls them
economic 10 strikers This is inconsistent with a voluntary quit, and I so find. Hence
I construe Degnan's language to mean that the strikers as of that moment had lost
their status of employees by action of the employer. I find this constitutes a termina-
tion of employment by the employer or a discharge Missoula Motel Association,
et al, 148 NLRB 1477, and Majestic Manufacturing Company, 64 NLRB 950, do
not compel a contrary conclusion. For similar reasons I find that the strikers were
further discharged by Acting Plant Manager Ernster's letter of May 6, 1964, to the
strikers (General Counsel's Exhibit No 42) and the notice (Respondent's Exhibit
No 38) posted on the bulletin board by Respondent. The Smead Manufacturing
Company, 145 NLRB 1632; Schoenfeld Coidage Co., 143 NLRB 117, 121.
Such discharges constitute a violation of Section 8(a)(1). Since no union activity
was involved, i.e , the strike was not called by the Union, the discharges did not
encourage or discourage union membership. Gullett Gin Company v. N.L R.B., 179
F 2d 499, 502 (C A. 5), reversed on other grounds 340 U S. 361. Hence Section
8(a)(3) of the Act has not been transgressed. Nor do the discharges convert the
economic strike into an unfair labor practice strike because none of the General
Counsel's evidence shows that the strike continued because of, or to protest, the
discharges
D The dilatory tactics and surface bargaining
Following the Union's certification on July 8, 1963, John Grogan, one of its busi-
ness representatives, met with L. Jack Degnan, Respondent's counsel, on or about
July 18.11 Grogan handed Degnan two proposed written agreements 12 (Respond-
ent's Exhibit No. 16) and also requested (1) a time and place to commence negotia-
tions, (2) the wage rates of each employee, and (3) a copy of Respondent's insurance
program. Degnan assured Grogan he would comply with this request.
0I place no reliance on Respondent's evidence that Grogan called it an economic strike,
for this is but a label which is not binding on me. Facts, and not labels, are vital in
ascertaining the nature of a strike
10I have ignored the adjective "economic" as a conclusion But "strikers" is an adnns-
sion or declaration against interest which I have considered
11 On July 16 Degnan by telephone complained to Grogan that employees Billy Smith
and Bob Dettbarn were talking excessively during working hours Among other things
Grogan replied he would see Degnan In a couple days to submit a proposed collective-
bargaining agreement.
ii According to Grogan (1) these proposed agreements did not contain wage demands
and (2) that the "first time any wage proposal came to the table that had any item in it
relative to wages was the proposal that the Company made on Febiuary 1, 1964 " Grogan
claimed he could not submit wage demands until he received the existing company wage
schedules These were submitted to him on December 27, 1963
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By letter dated July 23, 1963, Degnan wrote to Grogan that because of "solicita-
tion of membership during working hours," Respondent "will have to" post on its
bulletin board and on the premises a "no solicitation bulletin" informing the "public"
that "anyone soliciting on the premises will be removed." By letter dated July 25,
1963, Grogan wrote to Degnan requesting a time and place to commence negotiations
By letter dated July 25, 1963, Degnan wrote Grogan that no date could be fixed until
Company President Ferring had discussed "this matter with the other members of
his company." 13 By letter dated July 31, 1963, Degnan wrote Grogan that three
employees sought advice as to how to resign from the Union and asked Grogan for
advice "relevant to this."
On August 1, 1963, Grogan telephoned Degnan requesting that negotiations start
on August 12. Degnan replied he would see what he could do. When Grogan again
telephoned Degnan on August 15, 1963, Degnan requested a delay in starting nego-
tiations because of the fire of August 1. In this conversation Grogan also complained
that some employees were laid off and recalled not according to seniority. Degnan
said he would look into it.
On November 7, 1963, Degnan wrote to Grogan asking that Grogan mention three
alternative dates to commence negotiations. Thereafter the Union and the Company
agreed upon and held their first negotiating meeting on November 20 at Guttenberg.
Grogan, who attended, was accompanied by Grand Lodge Representative Eichorn
and by a committee consisting of employees Smith. Dettbarn, French, and Heitman.
The Company was represented by Degnan and Attorney McMahon, who had recently
been retained for this purpose. This meeting lasted for 2 days; i e., November 20
and 21.
At the outset of the November 20 meeting McMahon asked the union representa-
tives if they followed the usual practice of getting contract language and noneconomic
issues disposed of "before talking money." They agreed. Then McMahon asked the
Union to sign a statement that "all contract language and noneconomic issues would
first be agreed upon between the parties before any economic issues would be dis-
cussed in these negotiations .... The parties agree to meet at reasonable times and
further agree to expedite bargaining to reach a conclusion." 14 The parties agreed
to this and signed the statement, Grogan for the Union and Degnan for the Company.
(See General Counsel's Exhibit No. 21.) McMahon also said the Union's proposals
called for "Utopia " After discussion of several clauses of the contract submitted by
McMahon the parties agreed upon some and reduced to writing and initialed those
so agreed upon. These were subject to ratification by the employees, as well as all
others to be agreed upon McMahon directed some remarks to the employees present
to the effect that Respondent would "think of their interests." In addition, the parties
in writing agreed that a 5-cent-an-hour increase in pay, previously promised by the
Company in May 1963, which had been held up until it could be discussed and nego-
tiated with the Union, would go into effect. At Grogan's request his document also
recited that such increase would not affect the Union's wage demands in the current
negotiations. (General Counsel's Exhibit No. 22.) Finally, McMahon said the
Company felt free to put into effect any matters agreed upon.
At the November 21 meetings the parties discussed other articles proposed by
McMahon and signed or initialed those they agreed on. McMahon also submitted
Respondent's "management prerogative clause" (Respondent's Exhibit No. 19 A.)
It is entitled "Scope of Contract." At the December 27 meeting the Union submitted
its version of a "management prerogative clause." (Respondent's Exhibit No. 19 C.)
At the November 21 meeting, Grogan proposed that "we go into continuous ses-
sions until we consummated an agreement" but this was rejected because it inter-
fered with other plans of McMahon. Grogan's request that they meet again on the
following Monday or Tuesday also conflicted with prior commitments of McMahon.
It was finally agreed to resume on December 27 and 28 as set forth below.
At the November 20 and 21 negotiations the parties, among other things, agreed
upon and signed or initialed provisions entitled "Article I, Purpose of Agreement",
"Article IT, Recognition"; "Article IV, Non-Discrimination", "Article V, Settlement
of Grievances"; and "Article VII, Holiday Pay." (See General Counsel's Exhibit
No. 24.)
i3 At the hearing I excluded this letter. But I think it is admissible to show Degnau's
reply even though it goes beyond the Section 10(b) period of the Act Accordingly, I
reverse the ruling excluding it.
14 This last sentence was inserted at Grogan 's request. Union security was postponed
until later because Iowa was a "right to work State "
HILTON MOBILE HOMES 893
McMahon and Eichorn on November 21 agreed to telephone each other about the
next meeting, it being understood, at Eichorn's request, not to meet during the
Christmas holidays. Some time in December Eichorn told McMahon to proceed
without him Thereafter Degnan and Grogan arranged to conduct the next meeting
on December 27, 1963. Eichorn did not attend.
By letter dated December 17, 1963, Grogan wrote to Degnan in material part
again requesting the "rate of pay of each employee." Degnan telephoned Grogan
that he would supply this and other information at the next meeting. It was given
to Grogan at such meeting; i.e , on December 27.
The parties next conducted negotiations on December 27 and 28, 1963, again at
Degnan's office. Grogan, accompanied by a committee consisting of employees
Dettbarn, Smith, French, and Heitman, appeared for the Union. Degnan and
McMahon represented the employer.
At the December 27 session Degnan handed Grogan a list containing each employ-
ee's name and wage schedule. (See General Counsel's Exhibit No. 32 ) Over the
Union's strenuous objection the Company insisted on using a tape recorder to register
and preserve the language used at the meetings of December 27 and 28. On these
dates the parties agreed upon and signed or initialed provisions, among others,
relating to scope of contract (article III) (General Counsel's Exhibit No. 24; Respond-
ent's Exhibit No. 19 B); 15 vacations (article X); duration of contract (article
XVIII); changing of addresses (article XI); and some other noneconomic matters.
(See General Counsel's Exhibits Nos 25 and 26 )
At the December 28 meeting Grogan asked for another meeting soon, but
McMahon replied that he would not be free again until January 20, 1964. Although
Grogan protested that this was too far away, McMahon explained that he could not
meet sooner because he "was tied up in negotiations." It was finally agreed to
resume on January 30 The parties then met on January 30 and 31 and February 1,
1964 Grogan was ill for about 2 weeks in January, but negotiations were' not
thereby postponed.16
On January 31 the parties agreed to a seniority provision subject to employee rati-
fication. At the February 1 session the parties signed a document "that they have
now reached a complete and final agreement on all non-economic issues and contract
language subject only to ratification by the rank and file membership and reaching
an agreement on the economic issues. The parties further agree that the agreement
on the contract language and non-economic issues are all set forth in the attached
Agreement and Articles 1 through XXXII. The parties further agree we are now
ready to commence bargaining on the economic issues " (See General Counsel's
Exhibit No. 28 )
Following this McMahon submitted on February 1 to the Union a document con-
taining the Company's "counter-proposal on Economics on February 1, 1964 " (See
General Counsel's Exhibit No. 29.) Grogan and the committee of employees briefly
discussed it in the room after they asked the company representatives to remain out-
side for a short while. The Union, through Grogan, rejected it on the ground that
"it was less than we had now." However, the parties agreed that no rates in the
company proposal would cause any employee to take a cut in pay. Any such rate
below existing rates was to be "red circled"; i.e., the red circle indicated that this
rate involved would not be below that now received by an employee. At the request
of Grogan the word "apprentice" was deleted and "learner" substituted therefor.
Grogan also objected to discontinuance of the bonus plan, the lower rates of pay,17
and the job classifications Grogan then submitted the Union's oral counterproposal
to the Company's above written 18 proposal. Then the Company submitted another
15Article III was thoroughly discussed. Then Grogan polled the men on his committee,
who agreed to It.
16
Nevertheless Grogan on January 20 wrote to Degnan that Grogan had recovered from
his illness and inquired if the parties could meet the next week (Respondent's Exhibits
Nos. 7 and 40). Degnan replied by letter on January 22 assuring Grogan of "an early
meeting." (Respondent 's Exhibit No. 41.)
17
A contract signed by Rollohome, a competitor of Respondent, was brought in by the
Union and wages therein were discussed
is In this Grogan asked to "red circle" certain rates so that an employee would not
receive any reduction therein if negotiations resulted in different rates. The Union's pro-
posed rates were much higher than the Company's and also provided that merit promotions
be based on seniority. Thus the Union proposed $1 90 an hour for skilled and $1 70 an
hour for unskilled employees as a base rate, while the Company offered $1 65 and $1 50
therefor.
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proposal, which was oral, for a 5-year contract 19 with an increase of 10 cents an
hour (3 cents effective August 1, 1965, 3 cents February 1, 1967, and 4 cents
August 1, 1968) extended over a period of years, plus continuance of the bonus
plan, plus continuance of all fringe benefits. Among other things, the Union's oral
counterproposal asked for merit promotions on the basis of seniority, higher rates
of pay, and retention of the existing bonus plan. Respondent at first offered to give
smaller increases and to discontinue its bonus plan, among other things. Both pro-
posals were discussed "at some length," according to Grogan, but no accord was
reached. Grogan strongly opposed a 5-year contract, refusing to budge from a maxi-
mum of 18 months but preferring a 1-year contract. In rejecting the Union's offer
McMahon explained that the Company had much -competition and that the Union's
rates "were entirely out of line." McMahon also stated that the November 1963
increases amounted to 30 cents an hour, but Grogan insisted that these were not
negotiated increases as they had been promised in May 1963. Fringe benefits were
also discussed at the February 1 meeting. In this connection McMahon said, "If we
have a coffee break when we work 9 hours it will be continued." On February 1 it
was also agreed that truckdrivers and servicemen would be in a separate department
and that a supplemental collective-bargaining contract would cover these employees.
(Respondent's Exhibit No. 30.) Finally, the parties agreed to meet again later in
February, tentatively agreeing on the 16th and 17th.
On February 9, 1964, Grogan suffered a heart attack and was hospitalized. This
caused the meeting scheduled for later in February to be canceled. An employee
was asked by Grogan to notify Degnan of this illness , but forgot or failed to do so.
Grogan then telephoned Degnan on February 27 informing him of the heart attack.
This was after the above employee had failed or forgotten to notify Degnan of
Grogan's illness at Grogan's request. By letter dated February 29 Degnan wrote
to Grogan expressing regret at the latter's illness and canceling further bargaining
sessions "until we hear from you " On March 10 Degnan again wrote to Grogan
assuring him "We will be ready to make plans to go ahead on our business at any
time that you suggest."
No negotiations were conducted during March 1964 because of Grogan's condition.
About April 7 Grogan telephoned Degnan to request a time and place for the next
bargaining session, and also informed Degnan a meeting of employees was being held
on April 9 because of "a number of dissatisfactions [caused by] the delays," dissatis-
faction of employees over article III, and also because of rumors that the Teamsters
and Carpenters possibly would "raid us" at the plant. Grogan promised to notify
Degnan of the results of this meeting and the "gripes ... about your proposal."
Degnan promised to call back as to an agreeable date.
About April 9 Grogan met with Respondent's employees. Among other things
the employees expressed concern at the slow progress of the negotiations and wanted
to know "why the delay in the negotiations, and so on and so forth." Grogan
explained that he was sick for the past 2 months. Employees present also "talked
about a strike and Grogan advised them they were free to do so "
On April 10 Grogan again telephoned Degnan requesting that Degnan set a time
and place for a meeting, and conveyed the dissatisfaction of the employees,20 but
Degnan replied that he was busy with tax returns and would see what he could do
about arranging for a meeting . About April 28 Grogan again telephoned Degnan
for a meeting,21 and this time Degnan, who claimed to be tied up with State tax
returns, promised to call Grogan in a couple of days. Further, Grogan stated that
a contract of more than 18 months was unacceptable and that article III was objec-
tionable Grogan informed a committee composed of employees of the contents of
10 McMahon wanted a long contract because (1) a new plant was being erected and he
wanted this plant to be covered by the contract, and (2) the nature of the competition
in the industry required definite knowledge of wage costs
20 Grogan specifically mentioned that the employees were unhappy about the proposed
contract and that the men would never ratify the management clause (article III) which
Grogan had previously agreed to , or a contract for more than 1 18 months in its present
form, or a contract of any kind "as long as McMahon was doing the negotiating" because
the men did not like McMahon ' s delaying tactics and contract language Grogan also
suggested that McMahon be relieved as a negotiator. Degnan said he would convey this
suggestion to management.
21 Grogan also asked if Respondent had decided what to do about McMahon Degnan
replied that no determination had yet been made Grogan hinted that no further meetings
would be held if McMahon were not removed
HILTON MOBILE HOMES 895
the above April telephone calls to Degnan On April 13 Grogan called Degnan who
stated he would meet Grogan the next week. Grogan again repeated to Degnan
what he said in the April 10 telephone call to Degnan.
As found herein the employees struck on May 6, 1964. On that day, Grogan con-
ferred with Degnan about the strikers and also requested a week of continuous nego-
tiations beginning May 12. By letter dated May 12, Degnan asked Grogan if May 27,
28, and 29 were satisfactory. (General Counsel's Exhibit No. 33.) Grogan by letter
dated May 13 agreed but also "suggested an earlier date" without naming one.
(General Counsel's Exhibit No 34.) Degnan by letter replied that no request for
bargaining had been made since February 1 until May 6 and that "we will meet
[May] 27, 28, and 29, if such time is required." (Respondent's Exhibit No. 37.)
By letter of May 21 Degnan wrote Grogan expecting to meet on May 27, 28, and 29.
(Respondent's Exhibit No. 42.) The parties then met on May 27 and 28 Degnan
and McMahon represented Respondent while Grogan and a committee of employees
appeared for the Union The tape recorder was used by Respondent at these two
sessions.
As narrated in connection with the strike of May 6, Grogan asked for further bar-
gaining sessions 22 and also wrote a letter to Degnan on May 13 complaining of
certain matters. By letter dated May 14, Degnan wrote to Grogan defending the
Company, denying hearing from Grogan from April until May 6, 1964, and agreeing
to meet on May 27 , 28, and 29 to resume bargaining negotiations . ( Respondent's
Exhibit No. 10.)
On May 27 the parties met again, Degnan and McMahon for the Company and
Grogan and an employee committee for the Union. Respondent again utilized a
tape recorder. McMahon said that some of the strikers had been replaced and
Respondent would consider rehiring them as vacancies occurred. Grogan reiterated
his opposition to a 5-year contract. At this meeting McMahon asked for, and Grogan
agreed to, a written statement permitting a 5-cent-an-hour increase to become effective
without prejudice This raise had been promised to the employees by the Company
in May 1963. The parties discussed the bonus plan. McMahon also invited the
Union to make a new counteroffer on economic issues because he claimed the Com-
pany had modified its original offer but the Union's offer had remained the same.
No modification was then or at any other time made by the Union. Respondent's
competitors and their rates of pay were discussed. Respondent offered a 41/2-year
contract later in the day.
At the May 27 session the parties "discussed the wage issue again." The Company
proposed a 4V2-year instead of a 5-year contract and renewed its prior proposal of
a 10-cent-an-hour increase spread over the term of the contract . Grogan rejected
these offers of Respondent and added that in a previous conversation with Degnan,
he, Grogan "thought we could get a signed contract if [McMahon ] were not present."
McMahon resented this. At this session McMahon asked Degnan to read aloud
Degnan's notes relating to Degnan's talks with Grogan in April and on May 6, 1964.
Degnan did so.
On May 28, McMahon stated that Respondent was inaugurating another line and
that, as a consequence, it would be willing to take back about 15 strikers at a reduced
pay but without restoring to them their seniority "or any of their rights " Both
Grogan and the employees out of work rejected this offer
At the meeting of May 27 McMahon remarked that Grogan had asked Degnan to
replace McMahon as a company negotiator. McMahon apologized for anything he
had done, if anything, to offend Grogan But Grogan replied that this did not repre-
sent his personal feelings; rather it embodies the feelings of employees expressed at
an employee meeting of April 9. During the May 27 meeting Grogan stated that he
would not sign a contract containing article III, the so-called "management preroga-
tive clause," which actually is designated "Scope of Contract." This caused McMahon
to ask if the employees voted whether to ratify or reject this clause. Grogan replied
that they had not been asked to vote on it. Then McMahon said, "We have made
the latest offer, and it is your turn now to make one." But Grogan answered that
he had no other offer to make.
At the May 27 and 28 meetings, McMahon offered to take back about 15 strikers
at "similar jobs" and "similar pay" because of increased production. "Similar pay"
was less than their old pay. But Grogan wanted them back at the "same job" and
the "same rate of pay. No similarity," and with seniority
22 Late in the afternoon of May 6 Degnan telephoned Grogan that court appearances
prevented his meeting during the week of May 12 and until about May 28.
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At this May 27 meeting McMahon expressed willingness to accept a 41h-year
contract instead of one for 5 years, with a bonus plan and 10-cent increases over a
period of time, but insisted that additional fringe benefits would correspondingly
reduce across-the-board increases Grogan replied that he could not agree to a con-
tract for more than 18 months and that the differences between him and McMahon
were too great. McMahon then offered to take back some strikers at "sunilar jobs"
and at their former same rate of pay, but without seniority. Grogan took this up
with the men and later in the same meeting reported that they would not accede to it.
McMahon also said that a letter would be sent to the men. This was later sent.
(See General Counsel's Exhibit No. 24.) As the May 27 meeting ended Grogan
said he would call in a mediator. McMahon replied this was fine and to let him
know when the next meeting would be held
By letter dated June 24, 1964, Degnan wrote to Grogan renewing the offer to
rehire about 15 striking employees in "very similar jobs to those held by these
strikers prior to the strike, but with a few minor changes ... [and] the same rate of
pay for these new jobs as that which they had on the jobs they left ...." Degnan
also reaffirmed that the parties would meet on June 29 for further negotiations. In
a letter dated June 25, Grogan replied to Degnan that he accepted the June 29 date
and also asked for (1) the names of present employees who replaced striking employ-
ees, (2) a current list of employees and their wage rates, and (3) a copy of the bonus
plan "and how it works." (General Counsel's Exhibit No. 36.) By letter dated
July 1, Degnan wrote Grogan that the information sought was "no longer of conse-
quence" by reason of "the bargaining the past 2 days" but offered to furnish it if
Grogan needed it in the future.
On June 29 and 30, 1964, the parties held further bargaining sessions . At these
meetings Grogan was accompanied by Peter Popps and Fred Carsten, Grand Lodge
representatives of the International Association of Machinists. James Jeffery, a
conciliator of the "U. S. Department of Labor," who arranged for these meetings,
also was present The June 29 meeting lasted a short time. Carsten and McMahon
discussed some matters out of the hearing of Grogan.
McMahon narrated to Jeffery, the mediator, the past bargaining proceedings in
some detail. When Jeffery asked Grogan for his version, Grogan replied that he had
nothing to add and that McMahon's account was substantially correct. Then Jeffery
remarked that the parties were apart only on basic wages and length of contract term.
No one denied this. Popps privately told McMahon that Grogan was a sick man,
that the Grand Lodge had asked Popps to take over, and that the International had
a policy against contracts of more than 3 years' duration. When McMahon inquired
if the men had voted on the Company's proposals, Popps replied they had not but he
would see that they did. McMahon also said that he would consider an offer of a
3-year contract if Popps made one. However Popps never submitted such an offer.
Carsten told McMahon that the International should have had someone take over
while Grogan was ill.
On June 30 Grogan was accompanied by Popps and a committee of employees.
Jeffery again attended. Degnan and McMahon represented Respondent. Popps
acted as spokesman for the Union. Nothing was accomplished. At the close of the
June 30 meeting Jeffery said he would call the parties together again. But he never did.
On July 2, at a meeting of employees, Popps explained the contract provisions
theretofore agreed upon and initialed by Grogan and McMahon. Upon a vote taken,
the employees "rejected the entire proposal." On July 13 Popps and Grogan met
with Degnan Popps told Degnan that the employees "had rejected the entire pro-
posal " Popps also requested a negotiating meeting for July 20 or 27 and asked
"if there was any chance of settling." Degnan replied , "if it is going to cost money,
No." No negotiating meetings have been held since June 30, 1964
By letter dated July 14 Degnan wrote Grogan that prior commitments prevented
a meeting on July 20 but that he would meet on July 27 with Grogan. (General
Counsel's Exhibit No. 38 ) No meeting was held, but the record is silent as to the
reason therefor.
At the bargaining meetings the Company told Grogan it was putting into effect
any contract terms agreed upon "to the best of their ability." Grogan neither agreed
nor objected to this One of these was plant seniority. (Prior to this the Company
had only departmental seniority.)
On December 27, 1963, Grogan agreed to a "management prerogative clause"
which is referred to as "Scope of Contract" in the initialed agreement. However,
Grogan agreed to this clause only because McMahon insisted that no further nego-
tiations could be conducted until there was agreement on the management preroga-
tive clause. Agreement on this was reached only after many hours of discussion.
HILTON MOBILE HOMES 897
This was not a waiver by the Union. See Henry 1. Siegel Co., Inc. v. N.L.R.B., 340
F. 2d 309 (C A. 2). This article was not submitted to the Union until the time of
adjourning the November 21 meeting when it was briefly discussed. They also
agreed on a "bulletin board" clause (article XII) on December 27.
Concluding Findings on Dilatory Tactics and Surface Bargaining
1. As to dilatory tactics
It is desirable to point out that any dilatory conduct occurring prior to Novem-
ber 8, 1963, even if it contravened the Act, may not be found to constitute an unfair
labor practice, since it took place more than 6 months before May 8, 1964, when
the charge was filed. Section 10(b) of the Act so admonishes us. See Local Lodge
No. 1424, International Association of Machinists, AFL-CIO (Bryan Manufactur-
ing Co.) v. N.L.R.B., 361 U.S. 411. Hence the strike of May 6, to the extent it is
based on events prior to November 8, 1963, cannot be considered an unfair labor
practice strike. Greenville Cotton Oil Company, 92 NLRB 1033.
This takes us to November 8, 1963. As the parties met on November 20 and 21,
I do not regard the lapse of time between November 8 and 20 as reflecting that
Respondent, as the complaint alleges, "engaged in dilatory tactics in arranging for
bargaining sessions ." Accordingly, I find no unlawful procrastination up to Novem-
ber 20 and 21. Nor do I find unreasonable delay in not meeting again until Decem-
ber 27 and 28. This is because Eichorn, who requested no meetings around Christ-
mastime, and who promised to call McMahon for an acceptable date, did not call
McMahon until some time in December to state that the parties should meet without
Eichorn. Since the parties did not meet long after this, i.e., on December 27 and 28,
no reprehensible delay is discernible, and I so find.
After December 28, 1963, no bargaining sessions were held until January 30, 1964.
But this intervening lapse of time must be attributed to Grogan's illness, and I so find.
It follows that Respondent cannot be held accountable for the absence of any meet-
ings between December 28, 1963, and January 30, 1964. As noted above the parties
met for 3 consecutive days on January 30 and 31 and February 1, 1964. They did
not meet during the remainder of February and March 1964, solely because Grogan
was incapacitated by a heart attack and the Union did not nominate another repre-
sentative to substitute for him. Hence no dilatory tactics by Respondent are dis-
closed by the record during February and March 1964.
Grogan had recovered in early April 1964, and requested an early meeting there-
after. Yet Respondent was unable to agree upon a date earlier than May 27 because
of incompatible appointments by McMahon and income tax work by Degnan. Ordi-
narily I would be inclined to treat these conflicting engagements as indicia of neglect-
ing to fulfill statutory duties imposed on Respondent. Thus it would seem "that the
Respondent, in arranging meetings with the Union, failed to display the degree of
diligence that proper performance of its bargaining obligations required. This is so
whether or not the delays were inspired by a deliberate scheme to engage in dilatory
tactics. One may sympathize with the problems of the Respondent's negotiator in
fitting the negotiating meetings into the schedule of his busy law practice, but this
provides the Respondent with no legal excuse for the consequent inordinately long
delays tending to impair employee statutory rights." See Insulating Fabricators, Inc.,
Southern Division, 144 NLRB 1325, 1328. Cf. Exchange Parts Company, 139 NLRB
710, 711-712, enfd 339 F. 2d 829 (C.A. 5).
Yet the Board recently on somewhat similar facts as those unfolded by this record
was unable to find a refusal to bargain. It did not allude to Insulating Fabricators,
Inc., supra, which had been cited by the Trial Examiner in his Decision. See Charles
E. Honaker, 147 NLRB 1184. In Honaker, the parties engaged in bargaining
between 31/2 to 4 hours a meeting , for 11 meetings , from March 11 to August 19,
or a total of not more than 44 hours. In the instant case the parties by February 1
(less than 3 months from November 8, 1963) had met in 7 sessions of a day each,
or not less than 56 hours, and had reached agreement on all noneconomic issues.
Hence on "the whole tenor of the negotiations" (Charles E. Honaker, supra), I am
constrained to find that the infrequent meetings up to May 1964 do not establish
the type of dilatory tactics proscribed by the Act. In this connection I have taken
into consideration the facts that the Union did not substantially protest (Charles E
Honaker, supra), the parties had agreed on all noneconomic issues (32 articles),
their basic differences on February 1 involved only money items and term of
contract, the illnesses of Grogan which themselves protracted negotiations, the
Union itself had asserted an unwillingness to meet if McMahon were retained, and
the Union had later withdrawn its consent to article III entitled "Scope of Contract."
The parties met on May 27 and 28, and bargained on the remaining issues men-
tioned in the preceding paragraph; i.e., monetary matters and duration of contract.
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I am of the opinion that when the May 28 meeting ended the parties had reached an
impasse. This conclusion is discussed more fully below. Since they had reached
an impasse, further meetings became unnecessary. Nevertheless I find that no unrea-
sonable delay on Respondent's part resulted in the failure to hold meetings again until
June 29 and 30 This is so because I further find that Grogan on May 28 stated that
he wanted a mediator present at the next session, to which McCahon assented, that it
was understood that Grogan would arrange for the next meeting, and Grogan him-
self set June 29 as that date Hence Respondent may not be charged with dragging
its feet between May 28 and June 29.
2 As to surface bargaining
While so-called surface bargaining 23 does not fulfill the statutory command of
Section 8(a) (5) of the Act, neither the Board nor the courts have prescribed explicit
guides as to what constitutes such failure to comply with the statute N L R.B v.
Herman Sausage Company, Inc., supra, 231. Each case must be decided on its own
facts. Warehouse and Mail Order Employees, Local No 743, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, et al. (Aetna
Plywood & Veneer Co.) v N.L.R.B., 302 F. 2d 865, 868 (C.A.D.C.). Nevertheless it
is correct to rule-and I do-that surface bargaining is an absence of a sincere pur-
pose to find a basis of agreement. See N.L.R.B. v. Insurance Agents' International
Union, AFL-CIO (Prudential Ins. Co.), 361 U.S. 477, 486, 498; NL.R.B. v. Benne
Katz, etc., d/b/a Williamsburg Steel Products Co., 369 U.S 736, 747, Section 10(d)
of the Act. Judged by this criterion, I am unable to find that Respondent engaged in
surface bargaining. Hence I find that this segment of the complaint is not well taken,
and I shall recommend its dismissal. The reasons for this conclusion are contained
in the succeeding paragraphs.
In the first place, Respondent 's request at the opening meeting that noneconomic
matters be disposed of first does not contravene the Act. Not only did the Union
acquiesce in this suggestion, but the Union itself submitted no economic demands
either in its written proposals given long before the meeting or in its oral proposals at
the first and subsequent meetings prior to February 1, 1964. Hence by its own con-
duct, and without reference to the employer's request, the Union was content to bypass
economic matters for a while. J. A. Terteling & Sons, Inc. cl/h/a Western Equipment
Company, 149 NLRB 248, is distinguishable. Nor does the employer's insistence at
the second meeting upon a management prerogative clause ( article III entitled "Scope
of Contract") compel the inference that it sought to avoid reaching an agreement.
Since this is a bargainable matter , it is of no consequence when it is brought up for
discussion or how hard it is pressed when reasons are given for its inclusion, 24 for
Section 10(d) does not require a retreat from a bona fide position (Herman Sausage
Co., Inc., supra, 231), and the Board may not be "concerned with the substantive
terms on which the parties contract." N.L.R.B v. Insurance Agents', supra, 485-486,
N.L.R.B. v. American National Insurance Co, supra, 402, 404 And the Board may
not "attempt to reach too far" into the substantive provisions of a contract. N.L R B.
v. Mark R. Clegg, et al. d/b/a Clegg Machine Works, 304 F. 2d 168, 177 (C.A. 8).
Moreover the parties reached agreement on a management prerogative clause after
thorough discussion and after its text was modified to suit the Union
Secondly, the evidence fails otherwise to establish surface bargaining between
November 8, 1963, and February 1, 1964, especially since all noneconomic matters
were settled during that period. In this posture the case is stronger for Respondent
than Charles E. Honaker, 147 NLRB 1184, where the Board found no surface bar-
gaining although some noneconomic issues remained unresolved. Hence I find that
Respondent bargained in good faith at all sessions from November 8, 1963, to and
including February 1, 1964 Cf Mayes Bros., Incorporated, 145 NLRB 181.
Neither is surface bargaining discernible at the negotiating sessions relating to
monetary items and term of contract. A 5- or a 41/2-year contract may not be
branded as an inherently unreasonable proposal. Cf N L R B. v. Harold Hibbard,
et al., d/b/a Hibbard Dowel Company, 273 F. 2d 565, 568 (C.A 7). And the spread
of a wage raise over a period of 3 years does not amount to bad-faith bargaining
28 Courts have used this phrase to describe bargaining which has as its purpose a desire
to defeat the Act. N L.R.B v. Whittier Mitts Company, et at., 111 F 2d 474, 478 (C A
5) , N L.R.B. v Herman Sausage Company, Inc, 275 F. 2d 229, 232 (C A 5)
24 McMahon gave explanations which are not inherently unreasonable Insisting upon
such a clause is lawful . N L.R B. v American National Insurance , 343 U S 395 , 404, 408,
Peerless Distributing Company, 144 NLRB 1510, 1513-1514.
HILTON MOBILE HOMES 899
See Warehouse and Mail Order Employees Local 743, Teamsters (Aetna Plywood &
Veneer Co.) v. N.L.R B, 302 F. 2d 865, 867 (C.A.D.C.). Nor do the refusal to offer
more of an increase than originally proposed, or the insistence that the cost of addi-
tional fringe benefits would correspondingly reduce wage increases, establish bad-faith
bargaining. Cf. Warehouse and Mail Oider Employees, Local 743, Teamsters (Aetna
Plywood & Veneer Co.) v. N L R.B., supra; Chailes Honaker, supra. These are but
examples of hard bargaining, which the Act does not outlaw The Philip Carey Manu-
facturing Company (Miami Cabinet Division), 140 NLRB 1103, 1104-1105. In
fact, I find that Respondent yielded slightly on its economic position but the Union
did not budge at all. Hence it is difficult to call Respondent's hard bargaining conduct
blameworthy when the Union engaged in identical conduct by not only refusing to
modify its demands but also rejecting one of the earlier matters agreed on, the scope
of contract article. In fact the employees on July 2, 1964, refused to ratify any of the
previously agreed-on items.
Further I find that by the end of the May 28, 1964, and at the June 29 and 30, 1964,
sessions the parties had reached an impasse on the monetary items and length of
contract term. As the courts have constantly held, the Board cannot dictate the term
of a contract when the parties themselves are unable to agree upon them or require
any party to make concessions. Upon an assessment of the entire record, I find no
surface bargaining. Accordingly, I shall recommend that this aspect of the complaint
be dismissed. NL.R.B. v. W. R. Hall Distributor, etc., 341 F 2d 359 (C.A 10), and
N.L.R.B. v. Mrs. Fay's Pies, 341 F 2d 489 (C.A. 9), are distinguishable. And Sun-
beam Plastics Corporation, 144 NLRB 1010, 1013, does not compel a contrary result.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent found to constitute unfair labor practices as set forth
in section III, above , occurring in connection with its operations described in section 1,
above, have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
It having been found that Respondent has engaged in certain unfair labor practices
prohibited by Section 8 (a)( I) of the Act, it will be recommended that it cease and
desist therefrom and that it take specific affirmative action, as set forth below , designed
to effectuate the policies of the Act . It is reasonable to anticipate that such violations
may recur . Hence an order is warranted which will prevent repetition of the same
or similar conduct by Respondent.
In view of the finding that Respondent unlawfully discharged employees engaged
in a lawful strike and protected concerted activity , the Recommended Order will
direct Respondent to offer each of those not yet reinstated full and immediate rein-
statement to his former or a substantially equivalent position , without prejudice to his
seniority and other rights and privileges . It will also provide that Respondent make
whole all of those who were unlawfully discharged for any loss of earnings suffered
thereby. In making them whole , Respondent shall pay to each a sum of money equal
to that which he would have earned as wages from the date of such discharge to the
date of reinstatement or a proper offer of reinstatement , as the case may be, less his
net earnings during such period. Such backpay is to be computed on a quarterly
basis in the manner established by F. W Woolworth Company, 90 NLRB 289, with
interest thereon at 6 percent according to the formula adopted in Isis Plumbing &
Heating Co., 138 NLRB 716. It will also be recommended that Respondent preserve
and, upon request , make available to the Board or its agents, all pertinent records
and data necessary to analyze and calculate the amount , if any, of backpay due.
Upon the basis of the foregoing findings of fact, and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. Key City Lodge No. 1238, International Association of Machinists, AFL-CIO,
is a labor organization within the meaning of Sections 2(5) and 8(a) of the Act.
2. Respondent is an employer within the meaning of Sections 2(2) and 8(a) and
is engaged in commerce within the meaning of Section 2(6) and (7), of the Act.
3. By laying off employees and adopting and posting new plant rules without prior
notification of or consultation with Local 1238, Respondent has engaged in unfair
labor practices as defined in Section 8 (a) (5) and (1) of the Act.
212-809-66-vol. 15 5-5 8
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4 By (a) photographing peaceful picketing, (b) threatening strikers who returned
to work with discharge if they struck again, and (c) discharging employees engaged
in a lawful strike, Respondent has engaged in unfair labor practices within the mean-
ing of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
6. Respondent has not engaged in any other unfair labor practices as alleged in
the complaint.
[Recommended Order omitted from publication.]
APPENDIX
1. There will be no smoking on the premises at any time other than 10 minute
break periods and then it will be allowed by main entrance door only where
extinguishers are readily available.
2. There will be no talking in pairs or groups unless it pertains to the business
at hand.
3. There will be no more phone calls made from this station to another sta-
tion . Any necessary outside calls will be made from the main office at break
time only, unless its an emergency.
4. No one, will summon any one from another department or building with-
out first consulting with me, unless the problem at hand will not keep and I am
out of the building.
5. All garbage, such as apple cores, banana peels, bread crusts, etc , will be
deposited in available containers.
6. Any one caught participating in dangerous horseplay or practical jokes will
be reprimanded just once, throwing putty balls included.
7 Any one caught removing company or another man's property from the
premises without explicit permission will be discharged immediately.
MacCollum Paper Co., Inc. and International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of Amer-
ica, Local 135 . Case No. ?5-CA-2100. November 16, 1965
DECISION AND ORDER
On September 1, 1965, Trial Examiner W. Edwin Youngblood
issued his Decision in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it ct;ase and desist therefrom and
take certain affirmative action, as set, forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent filed exceptions to
the Trial Examiner's Decision, and a brief in support thereof. The
General Counsel filed a brief in support of the Trial Examiner's
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 [Members Brown, Fanning, and Zagoria].
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
Exanminer's Decision, the exceptions and briefs, and the entire record
155 NLRB No. 91.