Hudson Oil Co. of Mo., Inc.

National Labor Relations Board - Board Decisions

Jun 9, 1965

152 N.L.R.B. 1393 (N.L.R.B. 1965)

HUDSON OIL COMPANY OF MO., INC. 1393
holding of employment was already in effect and, seemingly, the same rationale
applies to the threat of possible disciplinary action. The General Counsel's position
is predicated upon Board decisions holding that the imposition of a fine by a union
against its members because they filed unfair labor practice charges against it (which
were withdrawn) constituted coercion and restraint in violation of Section 8(b)(1)
(A) 3 and that a union's unlawful withholding of employment from its members
for the same reason was violative of Section 8(b)(1)(A) and (2) of the Acti The
foregoing cases fully support the propositions for which they are cited However,
the cases are readily distinguishable for they are based on factual situations entirely
different from those in the present case. Here, it is undisputed the Respondent Union
did not fine Lee, or take away his book, or subject him to any disciplinary action
whatever. Nor did the Respondent Union, as I have found, unlawfully cause, or
attempt to cause, Mulberry to deny employment to Lee. Further, Lyons' statements
were barren of any express threat that Lee would be fined or lose his book or be
illegally denied employment if he took his case to the Labor Board, only the possi-
bility of such action. Moreover, Turner's statement, as related by Lee, that he did
not give "a damn" if he took his case to the Board would seem to negate any implied
threat in Lyons' remarks. The authorities cited, therefore, do not support the Gen-
eral Counsel's theory of the coercive character of the statements. In my opinion,
the bare statements of Lyons, and nothing more, do not constitute restraint and
coercion within the meaning of Section 8(b)(1)(A) of the Act. But, assuming the
contrary, I would not recommend the issuance of an order for the reasons that the
statements are isolated and in the unusual and unique circumstances of this case
it would not effectuate the public policies of the Act.
On the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Mulberry Construction & Welding Co. is an employer and engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the Act
2. The Respondent Union is a labor organization as defined in Section 2(5) of
the Act, and Turner, Lyons, and Howell are agents within the meaning of Section
2(13) thereof.
3. The Respondent Union has not engaged in unfair labor practices within the
meaning of Section 8 (b)(1)(A) and (2) of the Act, as alleged in the complaint as
amended.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, I recom-
ment that the complaint as amended be dismissed in its entirety.
3 Local 138, International Union of Operating Engineers, AFL-CIO (Charles S Skura),
148 NLRB 679; H. B. Roberts, Business Manager of Local 925, International Union of
Operating Engineers, et al. (Wellman-Lord Engineering, Inc.), 148 NLRB 674.
'Hod Carriers', Building & General Laborers' Union of America, Local No. 652, AFL-
CIO (Earl C. Worley), 147 NLRB 380; International Association of Heat and Frost In-
sulators and Asbestos Workers, Local #84, AFL-CIO (The Edward R. Hart Company),
146 NLRB 660
S The Crossett Company, 140 NLRB 667.
Hudson Oil Company of Mo., Inc. and General Drivers & Helpers
Local Union No. 95, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Helpers of Amer-
ica. Cases Nos. 30-CA-38 (formerly 13-CA-6157) and 30-CA-61
(formerly 13-CA-6-398). June 9.1965
DECISION AND ORDER
On January 22,1965, Trial Examiner George A. Downing issued his
Decision in the above-entitled case, finding that the Respondent had
152 NLRB No. 141.
7 89-730-66-vol 152-89
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not engaged in certain unfair labor practices and recommending that
the complaint be dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. The General Counsel filed exceptions to
the Trial Examiner's Decision and a brief in support thereof. The
Respondent filed a brief in answer thereto.
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 Fanning, Brown, and Jenkins].
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 of the parties, and the
entire record in this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order the Order recommended
by the Trial Examiner, and orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding under Section 10(b) of the National Labor Relations Act, as
amended, was heard before Trial Examiner George A. Downing in Kenosha, Wis-
consin , on October 19 and 20 , 1964, pursuant to due notice . The complaint, which
issued on July 14, 1964, on charges dated January 23, February 12, May 6 and 16, and
July 2, 1964, alleged , in substance ( as amended at the hearing), that Respondent
engaged in unfair labor practices proscribed by Section 8 ( a)(1), (3), and (5) of
the Act by various acts of interference , restraint , and coercion ( i e., interrogation,
threats, and change of working conditions), by discriminatorily discharging Charles
Wiginton and Thomas Tyler , and by refusing to bargain with the Union on and
after April 16, 1964 Respondent answered , denying the allegations of unfair
labor practices.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Respondent , a Missouri corporation , operates service stations in Kenosha , Apple-
ton, and Milwaukee, Wisconsin ; Waukegan , Illinois, and at other locations through-
out the United States. It is engaged at said locations in the retail sale of gasoline,
petroleum , and petroleum products . Its station at Kenosha is the only facility
involved herein . It sells and distributes annually products valued in excess of
$500,000, and it purchases and receives from points outside the State of Wisconsin
goods and materials valued in excess of $50,000 . Respondent is therefore engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
The Charging Union is a labor organization within the meaning of Section 2(5)
of the Act.
HUDSON OIL COMPANY OF MO. , INC. 1395
Ill THE UNFAIR LABOR PRACTICES
A. Introduction and issues; the settlement agreement
Consolidated here are two separate cases, the earlier of which, Case No. 30-CA-38,
was the subject of a formal settlement agreement approved by the Regional Director
on April 13, 1964, and fully complied with except for the claimed breach through
subsequent unfair labor practices involved in the charges in Case No. 30-CA-61.
Because of those charges the Regional Director withdrew his approval of the settle-
ment agreement on July 13, and pioceeded with his complaint in the consolidated
cases.
The issues in both cases were chiefly factual, turning in part on the credibility of
witnesses, though much of the evidence on which Case No. 30-CA-38 was based
was not denied. The chief issue in Case No. 30-CA-61 was that of the Union's
majority, which turns on the employee status of Frank A. Starling. Other issues
in that case involved the question whether unlawful interrogations and threats were
made during two alleged conversations on April 16, the date on which Respondent
received and rejected the Union's request to bargain, and whether Respondent dis-
criminatorily refused to reinstate the strikers upon application made in their behalf
on May 6.
Before turning to the evidence, we consider preliminarily what effect should be
given to the settlement agreement in the earlier case.
It is well settled that continuing violations of the Act will breach a settlement
agreement involving unfair labor practices and will justify the Regional Director in
going behind the agreement and in proceeding with a complaint which covers
unlawful conduct both before and after the agreement. The Wallace Corporation
v N.L.R B, 323 U.S. 248, 253-255; International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, General Drivers and Helpers, Local
No. 554, AFL-CIO (Clark Bros. Transfer Co. & Coffey's Transfer Co.) v. N.L.R.B.,
262 F. 2d 456, 459-461 (C.A.D.C.), remanding for further proceedings 116 NLRB
1891; Bowmar Instrument Corporation, 124 NLRB 1. However, findings of unfair
labor practices can properly be made on the earlier conduct only where there is
evidence of substantial unlawful conduct following the settlement, for evidence of
isolated and minor incidents will not justify the Board in going behind the agreement.
Wooster Brass Company, 80 NLRB 1633, 1635; Rice-Stix of Arkansas, Inc., 79 NLRB
1333, 1334. See also Jackson Manufacturing Company, 129 NLRB 460. Moreover,
the Board will not appraise a respondent's subsequent conduct in the light of its
conduct prior to the settlement for the purpose of determining whether independent
unfair labor practices occurred after the settlement Larrance Tank Corporation,
94 NLRB 352, 353; Baltimore Luggage Company, 126 NLRB 1204, 1208.
Though we accordingly consider first the postsettlement conduct, certain happen-
ings which preceded the settlement should be briefly mentioned for the light they
throw on the later happenings.
The earlier case covered the bulk of the Section 8(a) (1) allegations as well as the
alleged discriminatory discharges of Charles Wiginton and Thomas Tyler, two of
the three employees who joined the Union in December 1963. The settlement
included (without admission by Respondent of any unfair labor practices) the rein-
statement of, and backpay to, Wiginton and Tyler and the posting of a broad 8(a) (1)
and (3) notice for 60 days.' Wiginton was reinstated on March 12 and worked
until the strike on April 16. Tyler was also reinstated in March, but worked only
1 day and quit.
B. Postsettlement conduct-Case No 31-CA-61
1. The evidence
The events which relate directly to Case No. 30-CA-61 began immediately upon
the approval of the settlement agreement by the Regional Director on April 13. On
that date the Union obtained authorization cards from Lee O. Hillila and James G.
' One of the charges in Case No. 30-CA-38 also claimed a refusal to bargain, but the
General Counsel represented at the hearing that an amended charge "in effect amended
out the 8(a) (5) " However, the Union did not withdraw, until some time after the
events of the later case, a representation petition which had been pending in the Regional
Office since December
1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kerley , and Wiginton , who had signed in December , testified that he signed up
again They were the only employees ( all filling station attendants ) on the payroll,
except Frank A. Starling , for the pay period from April 1 through 15.
On April 15 , at 5.04 p.m., the Union wired Respondent at Kansas City that it
had signed application cards of the employees at the Kenosha station and that
Respondent 's failure to recognize it within 24 hours would result in "economic
action " That telegram was received by Respondent at 8.40 a m on April 16,2 and
was answered by a telegram dispatched at 10.39 a m., which stated that the question
of recognition was a matter to be decided by the Board and which suggested the
matter be referred to the Board. The latter telegram was dictated by Respondent's
attorney , Harry Browne, to Winslow M. Cady , secretary of the corporation, who
made no investigation concerning the Union 's majority and who testified he acted
only on the advice of Browne. Respondent did not inform its station manager,
Fred Becker, of the demand or of the refusal to recognize the Union.
In the meantime Becker testified ( without denial ) that pursuant to earlier discus-
sions with Cady, he was authorized on Friday , April 10, to put the station on a
24-hour operating basis, that he informed the employees of that fact , and that on
Monday, April 13, he ran an ad in the local newspaper for service station attendants.
On April 15 Becker hired Allen Lambie and Gaylon Kennett, directing them to
report to work on the following morning. They reported and went to work as
directed . Shift hours were also rescheduled contemporaneously as follows: from
6 a.m to 2 p.m ., from 2 to 10 p m, and from 10 p.m. to 6 a m.
Hillila 's shift on April 16 ended at 2 p.m., and Wiginton 's began at that time
Sometime between 2 and 3 o'clock , Wiginton informed Station Manager Fred Becker
that the employees were probably going on strike if the Company "didn't settle some-
thing by 5 o'clock." 3 Becker thereupon called Donald Vore , district supervisor
(formerly station manager at Kenosha ), informed him of the probability of the
strike, and asked Vore to come to the station . Vore arrived around 3.30 or 4 p.m
and spoke to Wiginton.
Wiginton testified that Vote asked, "What's this I hear about the Union" When
Wiginton replied that he was signing up for the Union again , Vore stated he thought
it was "all over," and asked Wiginton , "Who is all involved?" When Wiginton
replied that he was, for one, Vore stated that he could figure the rest.
Vote testified that his statement to Wiginton was, "I thought this was all settled.
What's coming off9" Though he could not recall whether he asked Wiginton who
else was involved, he conceded he might have done so. He testified that in referring
to what was settled, he meant the past difficulties with the Union, which he thought
had been resolved.
Though there is little to choose between in the foregoing versions , I credit Vore's
testimony , for Wiginton did not admit until cross-examined that Vore's visit to the
station followed his own warning to Becker concerning the strike and had endeav-
ored on direct examination to give the impression that the first reference to the possi-
bility of a strike at the station was made by Vore.
There was also testimony by Hillila concerning a conversation with Becker, which
he finally fixed as around 1 p.m. (his shift ended at 2 p.m ), and in which Becker
allegedly informed Hillila that Vore had called in and directed the discharge of
everyone who was in the Union and who went out on strike . Becker denied having
any such conversation with Hillila , and I credit his denial, for all the evidence
establishes that the first information that Becker received concerning the strike was
from Wiginton , some time after 2 p.m ., and that Vore 's first information was
received in turn from Becker.
Between 5 and 5 : 30 p m., Delmar Covington , the Union's business agent, came
to the station and formed a picket line consisting of Wiginton , Hillila, and Kerley. At
the beginning of the strike the picket signs read , "On strike , Local 95," but several
days later they were changed to read, "On strike for better wages and recognition."
s Though the General Counsel endeavored to develop the possibility that the telegram
was received on the 15th , he conceded in his brief that the 16th was the earliest date
receipt was established with certainty.
3 I credit Becker ' s testimony that it was Wiginton who initiated the conversation
Though Wiginton at one point denied that he volunteered the information about the strike,
his testimony when first questioned about the conversation accorded with Becker ' s testi-
mony on the point
HUDSON OIL COMPANY OF MO., INC. 1397
On May 6 the Union wired Respondent at its home office that the striking employ-
ees "hereby make unconditional application for reinstatement to their former or
substantially equivalent jobs. The employees will report to work on Friday, May 8,
1964, at their regular times ." Respondent replied by wire on May 7 that the strikers
had been replaced and that there were no available jobs. Thereafter the picket
signs were changed to read, "Strike breakers are taking our jobs and we want our
jobs back " The picketing continued until May 15. None of the strikers made an
individual application for reemployment, and the Union' s telegram was the only
request which was made.
Stipulations , payroll records, and other undisputed evidence establish the follow-
ing facts concerning hirings and firings during and after the strike
Gaylon E. Kennett, who was hired by Becker on April 15, worked only I day
and was terminated on April 17. John E. Davison was hired on April 17 and
terminated on April 20. Hipolito T. Moreno was hired on April 25. Sylvester S.
Hampton was hired on April 27 and terminated on May 16. Elbern E. Kraus was
hired on May 1. Allen H Lambie (hired on April 15) was terminated on May 17.
Robert L. Wienke was hired on May 17. William C Vita was hired on May 19.
Dennis L. Lehto was hired on May 30.
Respondent continued to hire attendants after May 30 as openings became avail-
able, but did not recall or attempt to recall anyone of the strikers. To excuse that
failure, Respondent relies upon the following facts, also established by the evidence:
All hiring was done by the station manager , either by hiring employees off the street
or as a result of ads run in the local newspaper (as on April 13). For example,
Wienke, Vita, and Lehto, who were hired after termination of the strike, all came
to the station looking for work and were hired there by Becker.
There was also a rapid turnover of employees Roger LeMay, the former station
manager, a witness for the General Counsel, whose testimony was otherwise highly
unfavorable to Respondent , testified that he "went through 26 guys in 2 months";
that they would "float in," work maybe 3 or 4 days, and be gone, though some would
stay 2 weeks and some for a month . Once the attendants quit and moved on,
LeMay never had occasion to seek out and rehire any who had gone, and he testified
that any effort to keep track of them would have been up to the Company ( at Kansas
City), through the information it had on the application forms, the bonding
papers, etc.
There remains the evidence relevant to the employment status of Frank Starling,
which became the most important and the most hotly contested issue in the case,
for upon its resolution depends the issue of the Union's actual majority. Thus with
Starling in the unit, the Union represented only three of six employees at the time
it made its request to bargain , while if he were not an employee, it represented a
majority of three out of five.
Starling was hired on March 14 , broke his leg in an accident on the job on March 16,
and thereafter received workmen 's compensation payments for some indefinite
period. Starling 's name was carried on the payrolls for the pay periods ending
March 15 and 31 and April 15 and 30, the first two insertions being in Becker's
handwriting and the latter two being in typed form.4 On the second of those pay-
rolls Becker inserted the notation , "injured on the job," and on the last two, the
notation , " injured. " Becker also drew a penciled line through Starling's name and
number as they appeared on the last two payrolls and testified that he did so
because Starling had worked no hours during those payroll periods ; that he had no
instructions in that regard ; and that the line was of no significance other than to
reflect the fact that Starling had no hours (pay) coming to him. Starling's name
did not appear on any payroll after that of April 30, but Becker testified that he had
nothing to do with the fact that Starling's name was dropped and that he at no
time made out a termination slip for Starling as he normally did when an employee
is terminated.
The payroll records from March 31 through May 31, inclusive, reflected a total
of 10 instances where a penciled notation of "Terminated" was inserted after the
names of employees , but none was made in Starling 's case. In most of such cases
penciled lines were also drawn through the employee's name (usually also where no
hours were worked). In the case of the strikers, the only notation was, "on strike."
4 Names of employees newly hired were customarily inserted by the station manager,
and those names were later picked up and included in typed ( I B M ) payroll forma pre-
pared at the home office and forwarded for use at the Kenosha station.
1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On April 27 Respondent's attorney, Harry Browne, wrote to Samuel Jacobson,
attorney for the Board, acknowledging receipt of Jacobson's letter of April 20,
and stating in part:
The strikers are Charles Wiginton, Lee Hillila, and James Kerley. The replace-
ments are Thomas Moreno, Orma Neal [Omer L. Neil] and Alan (sic) H. Lambie
Browne's letter did not indicate what inquiry he was answering in supplying that
information and there is nothing on the face of it which indicates that Browne was
attempting to list the employees on the payroll on any given date. The mere listing
of names of the strikers and their replacements is therefore of no significance as
regards the omission of Starling's name.
There was also further testimonial evidence concerning Starling's status Wiginton
testified that a few days after Starling was injured, Vore, who was then district super-
visor, stated that he did not intend to take Starling back unless he had to because
he had hired Starling initially only because he felt sorry for Starling. Vore denied
having any conversation with Wiginton about Starling's employment status and
testified he said nothing to Wiginton about whether Starling would be coming back
to work. Though it is to be noted that Wiginton's version does not establish that
Starling had been terminated, I credit Vore's testimony, since both Starling and
Becker testified that it was Becker (not Vore) who hired Starling.
Shortly after Starling was released from the hospital (after 8 days' confinement),
Becker made two visits to his home for the purpose of delivering workmen's compen-
sation checks. There was discussion of Starling's return to work, and the only
conflict in their testimony was whether Becker told Starling to come back and see
him when he got well or whether he stated instead that there was a "possibility"
that Starling could come back to work. Again it is to be noted that both versions
are compatible with the view that Starling had not been terminated.
Starling was not finally released by his doctor until around the first of September.
Again there were minor conflicts between his testimony and that of Becker (who
became district supervisor on July 1) concerning Starling's efforts to return to work.
I credit Starling's version, however, since Becker's testimony showed that it was
based in part on what the new station manager (Norman LeClair-"Red") told
him concerning Starling's visits
Starling testified that he went to the station early in September and reported to
LeClair, who informed him he should talk with Becker about coming back to work.
Thereafter he made an engagement to meet Becker at the station, but Becker did
not show up. Starling went back again a couple of days later and LeClair directed
him to report to work the next day. Starling found it necessary to have a tooth
pulled, however, and did not report at the station until the next Monday. Starling
was not shaved and had his face bandaged as a result of the tooth pulling. Becker
informed him he could not work in that condition and that he should come back
and see Becker the following week When Starling went back the next week, Becker
was not present, but LeClair informed him it was not necessary to talk with Becker
because (LeClair) had already sent Starling's termination papers in.
Becker testified that he himself turned in no termination papers on Starling and
that he knew of none by anyone else. He also testified that LeClair questioned him
at one time concerning the necessity for having Starling make out new employment
papers and that he informed LeClair that so far as he knew Starling was still on
the payroll and that LeClair should just put him to work.
2. Concluding findings
Considering first the alleged violations of Section 8(a)(1), the findings made
above concerning the Vore-Wiginton conversation on April 16 will not support a
conclusion that Respondent engaged in interference, restraint, or coercion as alleged
Vore's inquiry must be viewed in the light of the fact that the Regional Director had
just approved a full formal settlement of the Union's charges, that Respondent had
reinstated and paid backpay to the two employees involved, and that it had posted
the notice as provided in the settlement agreement. Wiginton's suggestion against
that immediate background that a strike was imminent could constitute no less than
a surprising development to Becker and Vore, who were within knowledge either of
the Union's new organizational efforts or of its demand for recognition on the
home office.
HUDSON OIL COMPANY OF MO., INC. 1399
Vore's inquiry as to what was "coming off" and as to who or what was involved
was thus a wholly natural one-"instinctive ," the General Counsel terms it-(cf.
United States Gypsum Company , 93 NLRB 966, 968 ) which cannot be found under
the circumstances as reasonably tending to restrain or interfere with the employees
in the exercise of rights guaranteed by the Act. Blue Flash Express , Inc., 109 NLRB
59; Ainsworth Manufacturing Company, Springfield Division of Precasco Corpora-
tion , 131 NLRB 273, 274, footnote 3. Or even were the inquiry to be regarded as
violative of Section 8 ( a)(1), it was an isolated one and too minor in character to
warrant the issuance of a remedial order. Middletown Manufacturing Company, Inc.,
141 NLRB 234, 235, Lawn -Boy Division Outboard Marine Corp , 143 NLRB 535,
546
Turning to the refusal -to-bargain issues, we consider first the question of the
Union 's majority and the status of Starling , on which it turns. The heavy prepond-
erance of the evidence summarized in section 1, supra, particularly the payroll entries
and Starling 's testimony , requiie the conclusion that Starling remained an employee
until terminated by LeClair in September . Certainly the General Counsel failed to
carry the burden of proving that Starling was terminated prior to the crucial date,
April 16. Indeed, no evidence was presented which would overcome the highly
persuasive fact that Becker noted the terminations of some 10 employees on the
payroll records between March 16 and May 31, but that Starling was carried from
March 16 through the month of April with the notation that he was injured. Neither
did the General Counsel effectively attack Becker's testimony that his practice was
to prepare and issue appropriate termination slips upon discharging employees.
The conversation at Starling 's home and the later conversations at the station in
September between Becker and Starling and LeClair and Starling did not establish
that any termination of Starling was made prior to his reporting at the station in
September . To the contrary they are compatible with the view that he had not
been terminated . Indeed, Starling's testimony concerning the September conversa-
tions showed that his return to work was agreed upon and would have become an
accomplished fact but for an unfortunate circumstance for which Respondent was
not accountable . Finally, when Starling made his last attempt to report to work,
he was informed that LeClair had already sent in his termination papers
Though the General Counsel argues that the evidence supports a conclusion that
the termination action occurred at some earlier (unspecified) time, it was plain
from the circumstances that LeClair was referring to a current, termination resulting
from Starling 's failure to report to work as directed . In any event , LeClair did not
become station manager until after Becker's promotion to district supervisor on
July 1, and his termination of Starling would thus necessarily have occurred long
after the crucial date of April 16.
I therefore conclude and find that the General Counsel failed to establish by a
preponderance of the evidence that Respondent terminated Starling's employment
at any time prior to April 16, and that Starling was therefore an employee at the
time of the Union 's request to bargain I conclude and find further that there were
thus six employees in the unit at the time the request to bargain was received and
that the Union did not therefore represent an actual majority.
I conclude and find further that, assuming arguendo the fact of majority repre-
sentation , the General Counsel failed to establish his contention that Respondent's
refusal to bargain was prompted , not by a good -faith doubt of the Union's majority
status, but by a desire to gain time within which to destroy that status . It is first
to be noted that the record is devoid of evidence that Respondent engaged in unfair
labor practices or other unlawful conduct for the purpose of undermining the Union's
status. Furthermore , Respondent 's suggestion that the question of recognition was
a matter to be referred to and decided by the Board seemed plainly justified by the
following facts:
The Union had not then withdrawn its representation petition filed in December,
and so far as the April request showed, the Union seemed to be reraising a question
of representation which had not been disposed of by the Regional Director. Repre-
sentations made by the General Counsel during colloquies at the hearing showed
that it was the fact of a questionable majority which accounted for his failure to
proceed on an earlier charge of a refusal to bargain , which the Union later "amended
out" See footnote 1, supra Respondent had no knowledge of the Union's brief
campaign to reorganize the employees , and the request was not phrased explicitly
enough to put Respondent on notice that the Union was claiming a new majority
based on any such drive . On the face of the record as it stood then , with the former
1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representation petition pending and with the question of representation which it raised
undisposed of at the time, Respondent could properly suggest that the matter was one
which should be referred to the Board
For the foregoing reasons , I conclude and find that Respondent was not guilty of a
refusal to bargain within the meaning of Section 8(a) (5) I conclude and find further
that the strike began as, and that it remained, an economic strike; that the strikers
were permanently replaced during the strike, and that there was accordingly no obli-
gation on Respondent's part to reinstate the strikers upon the Union's application in
their behalf on May 6.
The General Counsel contends further, however, that Respondent discriminatorily
failed to rehire the strikers (as economic strikers) as openings became available after
the strike was terminated. What the evidence showed, however, was that Respondent
continued its former employment practice of hiring off the street as openings became
available. The rapid turnover of employees, the floating character of Respondent's
labor supply, and its past history of failing to seek out ex-employees for reemployment
were all factors which were fully consonant with that policy; they negative the
General Counsel's assumption that there was some obligation on Respondent's part
to seek out for reemployment the permanently replaced strikers
As the Board held in Baitlett-Collins Company, 110 NLRB 395, 397, enfd. sub
nom. American Flint Glass Workers' Union of North America, et al. v N L R B.
230 F. 2d 212 (C.A D C.), cert. denied 351 U.S. 988, permanently replaced economic
strikers merely have the right not to be penalized for their concerted activity, and are
not entitled to preferential status in hiring. They are, the Board held, in the position
of applicants for new employment, as to whom the General Counsel must sustain the
burden of proving discriminatory motivation As such the strikers here needed,
under Respondent's hiring practices, to present themselves for employment at times
when there were job openings Cf. Brown and Root, Inc, et al., doing business as
joint ventures, under the name of Ozark Dam Constructors, 132 NLRB 486, 493-494.
As they failed to do so, no basis was laid in the record for a finding that they were
discriminated against.
The General Counsel argues, however, that if upon receipt of the Union's telegram
of May 6, Respondent had immediately restored the 24-hour operating schedule, jobs
would have become available for at least some of the strikers and that Respondent's
failure to restore that schedule was itself discriminatorily motivated There is no
evidence which supports the latter conclusion . In the first place, the proposed 24-
hour operating schedule never became a reality. It was aborted by the disruption of
the strike on the very day of its inauguration; it was not observed during the strike;
and it was not reinaugurated until a week after picketing ceased on May 15. Since
the operating schedule was a matter directed from the home office, a week's delay was
plainly not an unreasonable time within which to complete arrangements for opera
tions which had been disrupted for a month. In the meantime the strikers' jobs had
long since gone to permanent replacements, and as "applicants for new employment"
the strikers were entitled to no preferential status in hiring. Bartlett-Collins and
Brown & Root, supra. They, like all other applicants, were required to apply to the
station manager at times when there were job openings.
I therefore conclude and find that Respondent engaged in no unlawful conduct
following the settlement agreement 5 and that there was accordingly no breach of the
settlement agreement in Case No. 30-CA-38. I shall therefore recommend that the
settlement agreement be reinstated, without passing upon the conduct that occurred
prior thereto. Conroe Creosoting Company, 149 NLRB 1174; and see cases cited in
section A, supra.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSION OF LAW
Respondent has not engaged in unfair labor practices as alleged in the complaint.
RECOMMENDED ORDER
I recommend that the complaint be dismissed in its entirety, and I recommend
further that the settlement agreement in Case No 30-CA-38 be reinstated.
e Vore's Isolated Inquiry of Wiginton, even If regarded, contrary to my findings herein,
as violative of Section 8(a) (1), did not constitute "substantial unlawful conduct" during
the postsettlement period. Porto Mills, Inc , 149 XLRB 1454