Kit Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Jun 7, 1963

142 N.L.R.B. 957 (N.L.R.B. 1963)

KIT MANUFACTURING COMPANY, INC. 957
Kit Manufacturing Company, Inc. and Sheet Metal Workers
International Association , Local Union 213, AFL-CIO. Cases
Nos. 19-CA-2488, 19-CA-2488-d, and 19-CA-P2488-3. June 7,
1963
DECISION AND ORDER
On February 1, 1963, Trial Examiner Reeves R. Hilton issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermediate
Report. The Trial Examiner also found that the Respondent had not
engaged in certain other unfair labor practices alleged in the consoli-
dated complaint and recommended that such allegations be dismissed.
Thereafter, the Respondent, the General Counsel, and the Charging
Party filed exceptions to the Intermediate Report and supporting
briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report and the entire record in the case, including the exceptions
and briefs, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner to the extent consistent herewith.
1. We agree with the Trial Examiner that the Respondent violated
Section 8(a) (1) of the Act by aiding, assisting, and encouraging em-
ployee Bradford Blair in the circulation of a decertification petition
and that it violated Section 8(a) (5) and (1) of the Act by refusing,
on or after June 15, 1962, to bargain collectively with the Union as the
exclusive representative of its production and maintenance employees.
2. We further agree with the Trial Examiner that the Respondent
did not violate Section 8(a) (3) and (1) of the Act by discharging
employee Pat Korn and that such allegation in the consolidated com-
plaint should be dismissed. However, we disagree with the Trial Ex-
aminer's finding that the Respondent did not violate Section 8(a) (3)
and (1) by refusing to reinstate unfair labor practice striker Charles
Tveidt.1
The facts concerning Tveidt are fully set forth in section III, E of
the Intermediate Report. The Trial Examiner, citing W. T. Rawleigh
'We find, in agreement with the Trial Examiner, that the strike, which began July 2,
1962, was an unfair labor practice strike.
142 NLRB No. 107.
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company ,2 found that Tveidt, on July 23, "left his employment for
purely personal reasons." He held that therefore "irrespective of
whether [Tveidt] voluntarily quit or was terminated for leaving his
job, he was not thereafter entitled to reinstatement as a striking em-
ployee." We find merit in the exceptions of the General Counsel and
the Union to these conclusions.
Tveidt went on strike on July 2 along with other employees in protest
of the Respondent's unfair labor practices. The mere fact that he
voluntarily went back to work for a few hours on July 23 does not
imply that his dissatisfaction over the unfair labor practices ceased,
especially when, only shortly thereafter, he rejoined the strike. Un-
like the employee in Rawleigh, Tveidt knew the Respondent's unfair
labor practices were continuing and, irrespective of the immediate
cause of his failure to return to work in the afternoon after lunch on
July 23, his actions thereafter show that he left the job in order to
associate himself actively with the strikers in protesting the unfair
labor practices. For, by joining the picket line, Tveidt clearly evi-
denced his continuing interest in his employment and working condi-
tions and his intent to resume his status as an unfair labor practice
striker. Furthermore, the Respondent knew Tveidt was still on strike.
Reber, having seen Tveidt on the picket line, should have known he
had not quit and continued to have an interest in his employment,
particularly since Reber was unaware of any other reason why Tveidt
might have left the plant. Moreover, it is not contended that Tveidt
engaged in any misconduct while in the plant or on the picket line.
Nor is it contended that Tveidt's second walkout interfered with pro-
duction or worked any hardship upon the Respondent.'
We find, therefore, in the circumstances of this case, that Tveidt was
not obligated to inform the Respondent on July 23, 1962, that he was
leaving the plant and when, on August 13, 1962, he made an uncondi-
tional application for reinstatement, the Respondent had a duty to
reinstate him.4 We further find that in failing to reinstate Tveidt on
that date, the Respondent discriminated against him in violation of
Section 8(a) (3) and (1) of the Act.
THE REMEDY
Having found, contrary to the Trial Examiner , that the Respond-
ent unlawfully refused to reinstate unfair labor practice striker
2 90 NLRB 1924 , 1927 , where reinstatement was denied to a returned striker because it
was assumed he walked out for personal reasons, as he did not know of the company's
unfair labor practices , i e., that the company had refused to reinstate fellow strikers.
$ The record shows , although not alluded to by the Trial Examiner , Reber testified that
as Tveldt had been working for only a few hours , "it wasn't too hard to get along with-
out him."
6 See N L.R.B. v. Washington Aluminum Company, Inc., 370 U. S. 9, and Giustina Bros.
Lumber Co ., 116 NLRB 700.
KIT MANUFACTURING COMPANY, INC. 959
Charles Tveidt on August 13, 1962, when he unconditionally applied
for reinstatement, we shall order, in addition to the remedy recom-
mended by the Trial Examiner, that the Respondent cease and desist
therefrom and take certain affirmative action designed to effectuate
the policies of the Act.
We shall order that the Respondent offer Charles Tveidt immediate
and full reinstatement to his former or substantially equivalent posi-
tion, without prejudice to his seniority or other rights and privileges,
discharging, if necessary, any employee hired since July 23, 1962, to
replace him. If, however, there was no replacement hired and there
is no position available, the Respondent shall place Charles Tveidt
on a preferential hiring list and thereafter offer him reinstatement
as soon as a position becomes available and before any other person
is hired for such position.
We shall also order the Respondent to reimburse Charles Tveidt for
any loss of pay he may have suffered by reason of the Respondent's
discrimination against him, by payment of a sum of money equal to
the amount he normally would have earned as wages during the period
from August 13, 1962, the date of the Respondent's refusal to rein-
state him, to the date of the Respondent's offer of reinstatement or
preferential hiring status, less his net earnings during said period.
The amount of backpay due shall be computed according to the Board
policy set forth in F. W. Woolworth Company.5 Interest at the rate
of 6 percent per annum shall be added to the backpay to be computed
in the manner set forth in Isis Plumbing & Heating Co s
We shall further order that the Respondent, upon request, make
available to the Board or its agents, for examination and copying, all
payroll and other records necessary to enable the Board to compute
the amount of backpay and interest due.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Kit Manufactur-
ing Company, Inc., Caldwell, Idaho, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively concerning rates of pay, wages,
hours of employment, and other conditions of employment with Sheet
Metal Workers International Association, Local Union 213, AFL-
CIO, as the exclusive representative of all its employees in the follow-
ing appropriate unit :
6 90 NLRB 289.
0 138 NLRB 716.
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All production and maintenance employees employed by the Re-
spondent at its Caldwell, Idaho, plant, excluding office clerical em-
ployees, professional employees, servicemen, and all supervisors as
defined in the Act.
(b) Aiding, assisting, or encouraging employees in the circulation
of any petition, or movement, to decertify Sheet Metal Workers Inter-
national Association, Local Union 213, AFL-CIO.
(c) Discouraging membership in and activity on behalf of Sheet
Metal Workers International Association, Local Union 213, AFL-
CIO, or any other labor organization of its employees, by refusing to
reinstate Charles Tveidt or otherwise discriminating against him in
regard to his hire or tenure of employment or any term or condition
of employment, except as permitted by the proviso to Section 8 (a) (3)
.of the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights guaranteed to them in
Section 7 of the Act, except to the extent that such rights may be af-
fected by an agreement requiring membership in a labor organization
as a condition of employment, as authorized in Section 8 (a) (3) of the
National Labor Relations Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively concerning rates of pay,
wages, hours of employment, and other conditions of employment with
Sheet Metal Workers International Association, Local Union 213,
AFL-CIO, as the exclusive representative of all employees in the
above-described unit and, if an understanding is reached, embody such
understanding in a signed agreement.
(b) Offer to Charles Tveidt immediate and full reinstatement to
his former or substantially equivalent position, without prejudice to
his seniority or other rights and privileges, discharging, if necessary,
any employee hired since July 23, 1962, to replace him, or if employ-
ment is not available, place him on a preferential hiring list, and make
him whole for any loss of pay he may have suffered by reason of the
Respondent's discrimination against him, together with interest at the
rate of 6 percent per annum, in the manner set forth in the section of
this Decision and Order entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social security
payment records, timecards, personnel records and reports, and all
other records necessary to analyze the amount of backpay and interest
,due under the terms of this Order.
KIT MANUFACTURING COMPANY, INC. 961
(d) Post at its Caldwell, Idaho, plant, copies of the attached notice
marked "Appendix." 7 Copies of said notice, to be furnished by the
Regional Director for the Nineteenth Region, shall, after being signed
by an authorized representative of the Respondent, be posted immedi-
ately upon receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places where no-
tices to its employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that such notices are not altered,
defaced, or covered by any other material.
(e) Notify the said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to
comply herewith.
IT Is FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondent discriminatorily discharged employee Pat Korn in vi-
olation of Section 8(a) (3) and (1) of the Act, be, and it hereby is,
dismissed.
MEMBER LEEDOM, dissenting in part :
Like the Trial Examiner, and unlike my colleagues, I believe that
Charles Tveidt is not entitled to a second reinstatement as a striking
employee. As my colleagues and I otherwise agree with the Trial
Examiner, I would adopt the Trial Examiner's Intermediate Report
and Recommended Order in their entirety.
T 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 "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
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, upon request, bargain collectively with Sheet Metal
Workers International Association, Local Union 213, AFL-CIO,
as the exclusive representative of all the employees in the bar-
gaining unit described below with respect to rates of pay, wages,
hours of employment, and other conditions of employment, and
if an understanding is reached, embody such an understanding
in a signed agreement. The bargaining unit is:
All production and maintenance employees employed by
the Employer at its Caldwell, Idaho, plant, excluding office
clerical employees, professional employees, servicemen, and
all supervisors as defined in the Act.
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT aid, assist, or encourage employees in the cir-
culation of any petition, or movement, to decertify Sheet Metal
Workers International Association, Local Union 213, AFL-CIO.
WE WILL NOT discourage membership in and activity on be-
half of Sheet Metal Workers International Association, Local
Union 213, AFL-CIO, or any other labor organization of our
employees, by refusing to reinstate Charles Tveidt or otherwise
discriminating against him in regard to his hire or tenure of
employment or any term or condition of employment, except as
permitted by the proviso to Section 8(a) (3) of the Act, as modi-
fied by the Labor-Management Reporting and Disclosure Act of
1959.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the rights guaranteed
them in Section 7 of the Act, except to the extent that such rights
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in
Section 8(a) (3) of the Act, as modified by the Labor-Manage-
ment Reporting and Disclosure Act of 1959.
WE WILL offer Charles Tveidt immediate and full reinstate-
ment to his former or substantially equivalent position, without
prejudice to his seniority or other rights and privileges, discharg-
ing, if necessary, any employee hired since July 23, 1962, to re-
place him, or if employment is not available, place him on a pref-
erential hiring list, and we will make him whole for any loss
of pay he may have suffered by reason of the Respondent's dis-
crimination against him, together with interest at the rate of
6 percent per annum.
KIT MANUFACTURING COMPANY, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
NoTE.-We will notify Charles Tveidt if presently serving in the
Armed Forces of the United States of his right to full reinstatement
upon application in accordance with the Selective Service Act and
the Universal Military Training and Service Act of 1948, as amended,
after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employes may communicate directly with the Board's Regional
Office, 327 Logan Building, 500 Union Street, Seattle, Washington,
98101, Telephone No. Mutual 2-3300, Extension 535, if they have any
questions concerning this notice or compliance with its provisions.
KIT MANUFACTURING COMPANY, INC. 963
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon separate charges duly filed by Sheet Metal Workers International Associa-
tion, Local Union 213, AFL-CIO, herein called the Union, the General Counsel of
the National Labor Relations Board issued a consolidated complaint dated Septem-
ber 26, 1962, against Kit Manufacturing Company, Inc., herein called the Respondent
or the Company, alleging violations of Section 8(a) (1), (3), and (5) of the National
Labor Relations Act, as amended (29 U.S.C. Sec. 151 et seq.), herein called the
Act. The answer of the Respondent admits certain allegations of the complaint
but denies the commission of any unfair labor practices.
Pursuant to notice a hearing was held before Trial Examiner Reeves R. Hilton at
Boise, Idaho, on October 29 and 30, 1962. All parties were represented at the
hearing and were afforded full opportunity to be heard, to introduce relevant evidence,
to present oral argument, and to file briefs. The parties filed briefs which I received
about November 28, 1962.
Upon consideration of the entire record and the briefs of the parties and upon my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE COMPANY'S BUSINESS
The complaint alleges, and the answer admits, that the Company, a California
corporation, maintains plants in Long Beach, California, and Caldwell, Idaho, where
it is engaged in the manufacture and sale of trailers and mobile homes. The Cald-
well, Idaho, plant is the only plant involved in this proceeding. During its past fiscal
year, the Company in the course of its operations at the Caldwell, Idaho, plant pro-
duced products valued in excess of $50,000, which it delivered to customers outside
the State of Idaho, and in the same period it purchased goods and materials valued
in excess of $50,000 from sources outside the State of Idaho. The Company con-
cedes it is engaged in commerce within the meaning of the Act and I so find.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The prior proceeding before the Board
On March 13, 1961, the Union was certified as the statutory bargaining representa-
tive of all production and maintenance employees, with the usual exclusions, at the
Company's Caldwell, Idaho, plant. Following meetings between the parties, the
Union, on March 28, 1962, filed charges alleging the Company had engaged in con-
duct in violation of Section 8 (a) (5) and (1) of the Act. Thereafter the General
Counsel issued a complaint alleging in substance the Company had failed and refused
to bargain with the Union on various dates between September 27, 1961, and March
22, 1962. The Company filed its answer and on June 12, 1962, a hearing was held
before Trial Examiner David Karasick. In brief, the Company contended, (1) that
since the parties had reached an impasse in negotiations on September 27, 1961, it
was relieved of its duty to bargain on March 23, 1962, and (2) as the certification
year had expired, or was about to expire, and as the Union no longer represented a
majority of the employees in the unit, it was under no obligation to bargain with it
as the representative of its employees.
On July 30, 1962, Trial Examiner Karasick issued his Intermediate Report wherein
he found that on and after March 23, 1962, the Company refused to bargain with the
Union in violation of Section 8 (a) (5) and (1) of the Act and recommended appro-
priate relief to remedy the effects of the unfair labor practices thus found.
On September 28, 1962, the Board issued its Decision and Order adopting the
findings, conclusions, and recommendations of the Trial Examiner. (138 NLRB
1290.)
B. The issues in the present case
The complaint, after setting forth the appropriate unit and the Union's certification,
alleges that since April 1, 1962,i the Company by specified acts and conduct has
' All dates refer to 1962 , unles' otherwise stated.
712-548-64-vol. 142-62
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
failed and refused to bargain collectively with the Union as the exclusive representa-
tive of its employees in the appropriate unit. The Company in its answer admits
the appropriateness of the unit and the Union 's certification , but avers that at certain
times subsequent to April 1 , there was considerable doubt as to the Union 's majority
status and denies that it has failed or refused to bargain with the Union . The com-
plaint also alleges that the Company assisted and encouraged an employee to circu-
late a petition to decertify the Union , made coercive speeches to the employees in
which employees were promised a pay increase if they refused to strike , that on July
2, the employees went on strike because of the Company 's unfair labor practices,
and that the Company refused to reinstate one striker who had unconditionally
offered to return to work and discriminatorily discharged another striker after he
had been reinstated . In general , the Company denied that it engaged in any of the
foregoing conduct or that it committed any unfair labor practices.
C. Background of events
Preliminarily , and as found in the previous case, the parties reached an impasse
on September 27, 1961 , when the Union declined the Company's contract proposal
because it failed to include a union-shop clause or wage increases and changed cer-
tain items which had already been agreed upon . The next meeting between the
parties took place on March 22, and discussion at this session centered on the Septem-
ber 27, 1961 , proposal with the Union asking if the proposal was still a valid offer
and the Company asking if the Union would accept the same. The meeting ended
inconclusively and the next day company counsel , Eli Weston , telephoned Carl H.
Marcum, business representative of the Union , to inform him that the Union 's certi-
fication had run out, that it no longer represented the employees and there would be
no further negotiations . The same day Weston sent a letter to Marcum wherein he
stated that the parties had reached a legitimate impasse September 27, 1961, and the
Company was under no obligation to bargain further with the Union . Thereafter,
on April 16, the Company filed a petition ( Case No. 19-RM-389 ) requesting an
election to determine whether the Union represented a majority of the employees
in question , which petition was, obviously , dismissed by the Regional Director.
D. Chronology of events
The Attempt To Decertify the Union
Bradford Blair was employed as a janitor for almost 4 years and as his duties
required him to cover the entire plant, he was in rather close contact with the em-
ployees. Blair, who admitted having a poor memory for dates, testified that in the
spring of 1962 he told Dewey Reber, plant manager, the employees wanted more
money and asked if he could give them a raise in pay. Reber said he could not grant
any pay increases because he was afraid the Union would file charges against the
Company. Shortly thereafter , Blair and 15 or 20 men discussed the subject during
their lunch hour and the meeting resulted in Blair volunteering to circulate a petition
for the purpose of decertifying the Union . Blair told his foreman, Thomas Carter,
that he was going to circulate a decertification petition and asked him about a
heading for the petition . Carter declined to offer any suggestions regarding a heading
and made no comments indicating his approval or disapproval of Blair's plan to
circulate the petition . Blair then asked Reber for permission to circulate a decertifi-
cation petition and Reber told him to go ahead. Blair thereupon openly solicited
employees at the plant during working and nonworking hours to sign the so -called
petition , which was simply a blank piece of paper, Blair explaining to the employees
that the purpose in signing the same was to get rid of the Union . Blair succeeded
in obtaining signatures from about 85 out of 106 or 108 employees , most of them
during working hours. Blair and employee Godsey discussed the so-called petition
with an attorney who advised them the petition was not legal since it had no heading.
As the attorney was doubtful if the Board would entertain a decertification petition
in the cirmustances of the case , he sent a letter to the Regional Director on behalf
of Blair, obviously asking for information on that point. A few days later Blair
said he received a letter from the Regional Director advising him there were charges
pending against the Company and a decertification petition would not be entertained
at that time . Blair made no further efforts to decertify the Union.
After circulating his petition, Blair telephoned Marcum and asked if Marcum
would give assurance to the Company the Union would not file charges if the Com-
pany granted a wage increase. This was satisfactory to Marcum and he promised
to send a letter to the Company , which he did.
Marcum testified Blair telephoned him around May 17 to inform him that some
of the employees had spoken to Reber about a raise and Reber stated the Company
KIT MANUFACTURING COMPANY, INC. 965
could not give a pay increase because the Union would file charges against it. Blair
then stated a petition to decertify the Union was being circulated among the em-
ployees at the plant.
On May 24 Marcum sent a letter to Reber informing him the Union had no objec-
tion to granting wage increases, at the same time reserving the Union's right to bargain
for additional wages and benefits and concluded by saying (General Counsel's
Exhibit No. 2) :
Please post the enclosed copy of this letter on the bulletin board in the plant,
where all employees in the plant will have access to read it. If this is not done,
you will have relieved Sheet Metal Workers Local Union #213 of any liability
regarding this communication.
Marcum sent a copy of the letter to Blair.
Reber stated that commencing around May 1, Blair spoke to him frequently about
giving the employees a 10-cent an hour increase and he told Blair he could not do
so because the Union would file unfair labor practice charges and that wages were a
subject for discussion between representatives of the Company and the Union. Reber
further stated that on one occasion Blair came to his office and after expressing his
dissatisfaction with the Union requested permission to circulate a decertification
petition. Reber pointed out there were pending unfair labor practice charges against
the Company, which were scheduled for hearing on June 12, that the Board would
not act upon a decertification petition at that time and refused Blair's request for
permission to circulate the petition. Blair declared he was "going to do it anyhow,"
and Reber remarked he could not stop him, that he was over 21, but he did not have
permission to do so. Reber said Otis Brumbalow, foreman of the cabinet depart-
ment, reported he had stopped Blair from circulating the petition and Reber under-
stood Blair had violated company rules by soliciting employees on company property.
Carter, foreman of the stockroom and maintenance and cleanup, testified Blair
asked what he thought of the decertification petition and Carter replied he could say
nothing as far as the Company was concerned. Blair asked Carter if he could
circulate the petition throughout the plant during his working hours (his duties re-
quired him to cover all departments) and Carter said he had no authority in such
matters, that he should see Reber.
Nelson Leslie was among the group of employees when they discussed decertifying
the Union and Blair offered to circulate a petition to that effect. Sometime later Blair
approached Leslie while he was working and stated he was circulating his petition.
Leslie offered to sign the same but Blair said he had to obtain permission from Brum-
balow, Leslie's foreman, before signing him up. Blair then spoke to Brumbalow
and returned to leslie to tell him he could not sign up at that time. About 45 minutes
later Leslie met Blair in the restroom and signed the petition. • Blair told Leslie he
did not have Reber's permission to circulate the petition.
The Incentive Plan
About June 15, 3 days after the hearing in the prior case, the Company mailed to
its employees, or placed in their pay envelopes, a proposed incentive plan changing the
method of computing wages so that the employee would "make more money for
himself." The Company, as related by Marcum, neither discussed nor sent a copy of
the plan to the Union. While the employees mentioned the plan at a union meeting
on June 28, they stated it was so bad they did not want to discuss it. Blair said
he received a copy of the plan and the employees expressed no interest whatever in
the plan and would not even talk about it. The Company made no further effort to
effectuate the plan.
Events Leading to the Strike of July 2
On June 21, the Union held a meeting at which Marcum briefly outlined negotia-
tions up to that time and pointed out that his letter of May 24, acquiescing in a pay
increase, had never been posted by the Company. The employees, about 60 were in
attendance, voted to strike the Company. Marcum requested the strike be delayed
until he could secure the sanction of the International Association, which was
satisfactory to the membership.
The next day the International Association sanctioned the strike.
The same day, Friday, June 22, Attorney Weston telephoned Marcum and stated
he would like to meet with him before the employees went on strike and, seemingly,
they agreed to meet on Monday, June 25. On Saturday, June 23, Weston telephoned
Marcum that he had to go to Seattle and he would call or telegraph Marcum fixing
a date for their meeting. On Sunday, June 24, Weston's son called Marcum to inform
him his father was ill and could not meet with him the next day, and he was not
certain when his father could meet with him
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sometime during the week of June 25, Reber called Marcum and stated he heard
the employees might strike and expressed the opinion it would be a wildcat or un-
sanctioned strike. Marcum told him to check with the Board regarding the legality
of the strike.
On Thursday, June 28, the Union held a meeting and voted to strike the plant
Monday morning, July 2. However, the membership agreed that Marcum should
request the Company to meet with him the next morning, at which time he would
submit the Union's original proposed contract, and in the event the Company refused
to meet and negotiate, then the strike would take place as scheduled. Marcum there-
upon sent a telegram or night letter to Reber advising him the situation had become
critical and requested a negotiating meeting be held at 11 o'clock Friday morning,
June 29.
Reber called Marcum early the morning of June 29 and stated he had received the
telegram, that he had discussed the matter with Weston and he would not meet with
Marcum as requested because the Company was under no obligation to meet until it
"received the results of the hearing of June 12," the prior case.
On Sunday, July 1, Weston called Marcum and said the Company intended to con-
tinue operations at the plant and would hire replacements for the strikers.
Meantime, Reber, on the evening of Thursday, June 28, posted notices at the
plant announcing a 10,cent an hour wage increase, effective July 2. While Reber
had received Marcum's letter of May 24, acquiescing in the increase (supra), he
did not post a copy of the letter with the announcement, as provided in the letter,
for the reason "this would give the Union full credit for getting their wage increase,
and it wasn't a fact." Reber said that the Company had been considering wage in-
creases for 6 or 7 weeks, but it was not until Wednesday, June 26, that it decided
it could grant the increase and meet competition. Reber said he first heard rumors
of a strike the morning of June 29.
On Friday, June 29, Reber spoke to groups of employees and, in substance, told
them that he heard they were going on strike and, if they did, they would be
permanently replaced. He also pointed out the Company had granted a pay increase
effective July 2. On the subject of increases, employees Mobley and Nourse testified
to the effect that Reber stated he had been unable to find the raise in the past, but
he found it that morning or the morning before. Employee Pullen stated that Reber,
after referring to the increase, said it had been 21/2 years since the employees had re-
ceived a raise and, as far as he was concerned, they would not receive another
raise for another 21/2 years.
Reber admitted speaking to three groups of employees on the above date for the
purpose of informing them that he had heard rumors of a strike and, if they did go on
strike, they would be permanently replaced. Reber did not deny the testimony of
Mobley, Nourse, and Pullen.
The Strike; the Union's Efforts To Bargain During the Strike
The strike took place the morning of July 2, and pickets were placed at the plant.
The parties stipulated that just prior to the strike the Company had 106 or 108
employees and about 25 employees worked on July 2. Nourse, picket captain, said
about 13 men crossed the picket line the first day of the strike.
On July 2, the Company sent a letter to each striking employee advising him that if
he did not report for work by July 5, he would be permanently replaced.
During the first week of the strike, Marcum, in the course of negotiations with
Weston involving another company, requested a meeting and Weston answered the
Company would not meet with the Union, indicating the Company was under no
obligation to do so until a decision had been issued in prior case.
On July 6, Weston called Marcum regarding other matters and in their conversation
Marcum again asked for a meeting with the Company. Weston said he would call
Marcum if a meeting could be arranged and urged Marcum to get the strikers back
to work. The following day Marcum called Weston who stated the Company would
not meet with the Union and once more urged Marcum to get the strikers back to
work.
On July 18, representatives of the parties held a meeting pursuant to arrangements
made by Dan Edwards of the Federal Mediation and Conciliation Service. Attending
the meeting were Marcum, Wesley Smith, International organizer, and a committee
of employees, on behalf of the Union, while Weston, Reber and Reber' s son appeared
for the Company, and Edwards. Marcum stated Weston referred to past negotiations
between the parties, the fact that the Company had granted a wage increase on
July 2, and announced the company representatives had been instructed by top offi-
cials of the Company, "they were not to recognize the Union at that time. They
only came to conciliate and not negotiate." Weston also stated that while the Com-
KIT MANUFACTURING COMPANY, INC. 967
pany had given the strikers an opportunity to return to work by July 5 , he believed
the Company might take back 20 strikers-there were about 70 strikers at that
time-and place the remaining strikers on a preferential hiring list. Although the
union committee had a proposed contract , Marcum did not present it to the company
representatives in view of Weston 's statement they did not come to the meeting for
the purpose of bargaining with the Union.
Smith testified substantially the same as Marcum regarding the Company's position,
as expressed by Weston . With respect to the reemployment of strikers , Smith said
Weston suggested that if the Union would furnish a list of strikers ready to return to
work , the Company would be willing to take back some of them "on a pick and
choose basis ." Smith replied that all the strikers desired reinstatement , but the Union
could not accept an offer of reemployment in the terms suggested by Weston.
The session ended without any agreement whatever and no arrangements were
made for a future meeting.
Reber testified it was his understanding that the parties were called together by
Edwards for the sole purpose of attempting to settle the strike. Reber thought the
parties discussed union security "very, very slightly . . . but as far as negotiating on
any other subjects I don 't think we did."
Weston did not testify at the hearing.
On August 3, Marcum sent a letter to Weston wherein he stated he had received
a copy of the Intermediate Report in the prior case and requested a negotiating meet-
ing be held the afternoon of August 6. Marcum also made an unconditional offer
on behalf of all strikers to return to work on August 6, which they did, as set forth
below.
On August 6, Marcum , John Lubetiche , International organizer , and the com-
mittee met with Weston and Reber . Marcum inquired if Weston and Reber were
ready to negotiate and they handed Marcum a document entitled "Memorandum
Agreement ." This agreement ( General Counsel 's Exhibit No. 6), after referring
to the prior case , the strike , and the replacement of practically all the strikers, pro-
vided that the Company would recognize and bargain with the Union , reinstate at
least 25 strikers , and place the remaining strikers on a preferential hiring list, pro-
vided further:
Local 213 . . . will absolve said company of any Unfair Labor Practice Charges
or complaints that may exist either known or unknown at this time and up to
the date of the signing of this agreement . . . .
The union representatives , after considering the Memorandum Agreement , rejected
it and promised to state their position in writing . During the meeting the Union
requested the Company to furnish it with a list showing the names, addresses, and
job classifications of all employees in the unit . At the same time the Company asked
for a list giving the names of strikers , to be used in connection with its offer of partial
reemployment and preferential hiring of strikers , which offer had been declined by
the Union . Although the Union had its own proposal to submit to the Company,
it did not do so because of the position taken by the Company . Marcum was not
certain whether the parties scheduled a meeting for August 13.
On August 7, Marcum sent a letter to Weston in which he rejected the Memo-
randum Agreement , renewed his request for reinstatement of all strikers, and re-
quested the names , dates of hire, work classification , and rates for employees in the
bargaining unit.
On August 8, the Union filed charges against the Company.
On August 9, Weston wrote Marcum that on August 13, the Company would re-
instate all strikers who had applied for work on August 6 , and that on 5 days' notice
the Company would commence bargaining with the Union.
The Reinstatement of the Strikers
On the morning of August 6, about 46 strikers reported at the plant ready for
work . Higley, a member of the union bargaining committee , stated he and the
strikers were told to report to the office in small groups, which they did. There,
after making an unconditional application for reinstatement , Reber took their names
and told them to come back on August 13.
Reber said he could not reinstate the strikers that morning because he could not
adjust his work schedule on such short notice.
On August 13, practically all the strikers were reinstated.
The complaint does not allege that the Company unlawfully refused to reinstate
the strikers on August 6, or that it discriminatorily refused to reinstate all of the
strikers, except one individual discussed below.
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Meetings After August 13
A meeting tentatively set for August 13, was called off by Weston, so the next day
Marcum wrote him requesting a meeting be held on August 17.
On August 15, Weston wrote Marcum stating he understood they had agreed to
meet on August 12. Weston concluded by saying that in view of the Company's
agreement to reinstate the strikers (General Counsel's Exhibit No. 12):
. we suggest that you be prepared to withdraw any charges that may have
been filed with the National Labor Relations Board against Kit Manufacturing
Company prior to our negotiations. Obviously, the employer should not be
required to bargain while charges are pending.
On August 21, the representatives met in Weston's office. Weston, according to
Smith, opened the meeting by stating the Company was very much disturbed because
the Trades and Labor Council of Boise had written letters to many of its customers
regarding the dispute and that a union delegation had talked to its dealers in Boise
along the same line. Weston then asked Smith and Marcum to write letters to its
customers and dealers advising them that the Company was bargaining with the
Union. Smith said he would do so when the Company commenced bargaining
negotiations. Weston then stated they did not want "to bargain with us, with this
cloud, as they termed it, hanging over their head," and if the Union would withdraw
its unfair labor practice charges, the Company would be more inclined to bargain.
Smith replied that the Union was in no position to withdraw the charges, but it was
willing to discuss a settlement stipulation which, if they reached accord, could be
presented to the Board for approval. Obviously, this was not acceptable to the
Company for there was no further discussion on this subject. The parties briefly
discussed union security and the Union submitted a written maintenance-of-member-
ship clause. Reber professed ignorance of the meaning of such a clause and added
he could not bargain on the clause without permission of top company officials.
Concerning wages, Marcum and Smith testified Weston or Reber took the position
that the Company had granted a 10-cent wage increase on July 2, and this eliminated
any further increase at that time. The Union repeated its request for a list showing
the names, classifications and wage rates of employees, as set forth in its letter of
August 7, and Reber promised to have the information for them within 2 or 3 days.
Weston, according to Smith, promised to submit a proposal to the Union and, appar-
ently, the meeting then ended.
Reber's testimony concerning this meeting was limited to the Union's request for
employment data He admitted the Union asked for information at the meeting (as
well as prior thereto), and that he had such a list with him at that time. However,
Reber told the union representatives the list was obsolete and when he revised it he
would send a copy to them.
On August 23, Weston sent a letter to Marcum in which he stated the Company
was offering as its counterproposal the proposed contract it had submitted to the
Union about September 27, 1961, which had been rejected at that time, but was the
subject of some discussion at the meeting on March 22, 1962.
The next meeting between the parties, which Edwards attended, was held on
September 18. In essence, as related by Marcum and Smith, Weston repeated his
request the Union withdraw its charges, and the Union presented a proposed con-
tract which was briefly discussed. The meeting concluded with the parties agreeing
to meet on October 1, and that prior thereto the Company would submit a counter-
proposal to the Union.
On September 27, Weston submitted the Company's counterproposal to the
Union and the parties met on October 1. Plainly, the counterproposal was the
same agreement which the Company had presented to the Union about September
27, 1961.2 Marcum and Smith testified the parties discussed this proposal, as well
2 While the parties did not produce copies of proposed agreements, Attorney Weston's
letter of August 23, and his cross-examination of Smith, leave no doubt that the counter-
proposal was the same as the proposed contract submitted in September 1961. Thus,
Weston questioned Smith as follows:
Q. Did we not later on submit as an offer the contract which had been discussed
and negotiated and refused in 1961?
A. Yes, you submitted a counter proposal in October
Q Which was practically the same as the one we had submitted in 1961?
A This I am to assume was very nearly close. I didn't take your previous pro-
posal and compare them I would be willing to accept your word for it.
KIT MANUFACTURING COMPANY, INC. 969
as the Union's proposed contract, and, while tentative agreement was reached on
certain provisions, the parties were unable to reach any accord on provisions cov-
ering union security, overtime, term of the contract, wages, use of the union label,
and strikes and lockouts. Weston insisted that the Company's proposal be presented
to the employees for approval or disapproval, even though it was not acceptable
to their bargaining representatives. The Union agreed to do so, but did not fix a
specific date for a meeting with the employees for the reason that Reber would
be out of town the next week and Marcum and Smith would not be available
between October 10 and 20, as they planned to attend a union convention. How-
ever, Marcum and Smith had already scheduled a meeting of the employees for
October 25.
Reber did not testify concerning this meeting. However, he did state generally
that the Company was opposed to a union security or maintenance-of-membership
provision, which he termed the "biggest stumbling block" in bargaining with the
Union.
On October 5, Weston sent Marcum a list showing the names of employees,
addresses, dates of hire, and their hourly rates.
The Company's counterproposal was presented and considered at the union meet-
ing on October 25, and rejected by the employees.
On October 26, Marcum wrote Weston to advise that on October 25, the em-
ployees had voted unanimously to reject the Company's counterproposal.
No further meetings were held. As stated above, the hearing in this case opened
October 29.
Concluding Findings
The somewhat lengthy saga of the relationship between the Company and the
Union commences with the circulation of the so-called decertification or "get-rid-
of-the-Union" petition by Blair in the early or middle part of May. According to
Blair 's version the petition stemmed from the fact that the Union had been unable to
obtain wage increases and his frequent talks with Reber concerning raises, in which
Reber asserted increases could not be granted for the reason that the Union would
file unfair labor practice charges against the Company. Upon informing a group of
employees of this situation, they decided to get rid of the Union and Blair volun-
teered to circulate a petition to that end.
Blair thereupon spoke to Foreman Carter and Reber about this petition, although
the sequence of these conversations is not clear. In any event, Carter declined to
discuss the proper caption for the petition and neither approved nor disapproved
Blair's action. Reber, according to Blair, granted his request for permission to
circulate the petition at the plant. Reber conceded Blair talked to him about his
petition and he informed him of the hearing scheduled for June 12 that the Board
would not entertain a decertification petition at that time and refused Blair's re-
quest for permission to circulate his petition. Blair announced he was "going to
do it anyhow," and Reber remarked he could not stop him, that he was over 21,
but he did not have his permission to do so. Blair thereupon proceeded to openly
,solicit employees at the plant during working and nonworking hours, in the man-
ner described above, and succeeded in signing up about 85 employees, most of them,
during working hours.
I find it difficult to believe that Reber gave Blair permission to circulate the
petition. Indeed, employee Leslie, who favored and signed the petition for Blair,
testified Blair told him he did not have Reber's permission to circulate the peti-
tion . Leslie's testimony stands uncontradicted. Accordingly, I find Reber did not
grant Blair permission to circulate the petition. However, Reber did nothing more
than merely withhold express permission for Blair's plan to get rid of the Union.
Obviously, this was no deterrent to Blair , for he plainly stated he intended to go,
ahead with his petition. Placed in this situation, Reber, instead of warning Blair
that he could not solicit signatures for his petition during working hours and that
plant rules prohibited the circulation of such a petition, simply told Blair he could
not stop him from proceeding with his petition . Likewise, Carter was fully aware
of the fact that Blair was planning to circulate the petition and he, too, failed to
issue any warning regarding its circulation at the plant. The credible testimony
clearly shows that Blair openly solicited employees during working and nonworking
hours, without interference on the part of company officials or supervisors (except
for Foreman Brumbalow), and that he signed up 85 employees, most of them
during working hours. Again, while Reber knew Blair had violated company rules
in soliciting employees , there is no evidence that Blair was reprimanded or dis-
ciplined for his conduct. Under these circumstances , I find the Company aided and
assisted Blair in the circulation of his petition in violation of Section 8(a)(1) of
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Act. (Watertown Undergarment Corporation, 137 NLRB 287; Sperry Gyro-
scope Company, 136 NLRB 294.)
From this point there is no serious dispute concerning the facts . Here the record
proves beyond all doubt that the Company adopted a course of action designed
to avoid its statutory obligation to bargain with the Union and to prevent, frustrate,
and discourage the Union from performing its duties as the exclusive bargaining
representative of its employees. In effectuating this plan the Company resorted
to many tactics, long prohibited by the Act, ranging from outright refusals to even
meet with the Union to surface bargaining. Faced with this evidence the Com-
pany seeks to excuse its conduct by stating it bargained with the Union to an im-
passe on the union-security clause. However, its brief is devoted primarily to com-
plaints that the Union by resorting to economic and legal measures in its attempts
to bargain caused severe losses to the Company and interfered with its operations.
The record completely refutes the contention that an impasse was reached because
of the union-security provision and there is no merit or substance to the com-
plaints regarding the Union's conduct.
In summary and on the basis of all the evidence, including the credible testimony
of Marcum and Smith, I find as follows:
At the outset, there is no question as to the appropriateness of the unit and the
Union's majority status at all times material herein The argument that Blair's
abortive petition and the Company's RM petition, filed in April, raised some doubt
as the Union's majority status is wholly without merit. (Carter Machine and Tool
Co., 133 NLRB 247.)
As found above, Reber told the employees he could not grant a pay increase in
May, because the Union would file charges against the Company. When Marcum
was advised of Reber's position he allayed his fear regarding the filing of charges by
stating in his letter of May 24 that the Union acquiesced in his granting the increase,
provided the letter was posted at the time the raise was announced. The Company
reacted by doing nothing until June 15, when it offered an incentive plan directly to
the employees, which plan was ignored by the employees and dropped by the Com-
pany. Later, about June 27 or 28, Reber decided he could grant a pay increase and
posted a notice at the plant announcing the increase, effective on July 2, the evening
of June 28. Reber's assertion that he was unaware of the Union's plan to strike the
plant until the morning of June 29 is refuted by Marcum's uncontradicted testimony
that Weston telephoned him on June 22 about the strike and agreed to meet with
Marcum on June 25, which meeting was called off by Weston It would be difficult
to believe that Weston did not pass on this information to Reber Admittedly, the
Company did not consult with nor inform the Union of its intention to grant the
pay raise, nor did it post a copy of Marcum's letter of May 24, along with the notice
announcing the increase Reber said he did not post the letter for the reason the
Union would claim credit for obtaining the raise, which was not true. In thus ignor-
ing and bypassing the Union by submitting the incentive plan and initiating the pay
increase in the above manner, the Company acted in derogation of its duty to bargain
collectively with the Union as the exclusive representative of its employees.
(N.L.R.B. v. Katz, et al., 369 U.S 736; Fitzgerald Mills Corporation, 133 NLRB
877.) Moreover, Reber's announcement of the pay increase at his meetings with the
employees on June 29, at the same time warning them they would be permanently
replaced if they went on strike July 2, was plainly an inducement to forgo strike
activity, in violation of the employees' rights guaranteed under the Act. ("M" System,
Inc., 129 NLRB 527.) 3
3 The General Counsel asserts the raise was given only to employees who had been em-
ployed 60 days or more Blair testified this restriction appeared in the notice, which was
posted a few days before the strike The notice, or a copy thereof, was not produced at the
hearing There is nothing in Reber's testimony indicating the raise was so limited.
Mobley, Nourse, and Pullen likewise made no mention of such a limitation although they
testified concerning the increase I fail to see the materiality of this contention, but, in
any event, I find the evidence insufficient to support the general Counsel's position.
The General Counsel also argues the pay increase was gianted as an inducement to ob-
tain replacements for the strikers, which was unnecessary and therefore illegal As an
analogy he cites the granting of superseniority to strike replacements which the Board
found unlawful in Erie Resistor Corporation , 132 NLRB 621, enforcement denied 303 F
2d 359 (CA. 3), cert granted 371 US. 810, and Swarco, Inc, 133 NLRB 375, enfd 303
F 2d 668 (.CA 6), petition for certiorari filed September 7, 1962, unopposed by the
Board It is sufficient to say that the issue in the Erie and Swarco cases is not presented
in this case.
KIT MANUFACTURING COMPANY, INC. 971
On June 28 , the Union requested a meeting for June 29 , which Reber declined on
the ground it was under no obligation to meet until a decision had been issued in
the prior case.
In view of the foregoing findings, I further find that the strike of July 2 was caused
by unfair labor practices committed by the Company.
The Company maintained its adamant position , and so notified the Union , that it
would not bargain during pendency of the prior case on two occasions during the
first week of the strike and at the meeting of August 6. In addition , company repre-
sentatives at the meeting of July 18, which was arranged by Conciliator Edwards,
refused to even recognize the Union and declared they came to the meeting to con-
ciliate only , not to negotiate . After the filing of the present charges on August 8, the
Company remained firm and conditioned bargaining upon withdrawal of the charges
as set forth in Weston 's letter of August 15 and at the meetings held on August 21
and September 18.
It is, of course , well settled that the filing of unfair labor practice charges or pend-
ing Board proceedings do not relieve an employer of his obligation to bargain with
the union and his refusal to do so on that ground or until the proceedings have been
disposed of or withdrawn is plainly indicative of bad-faith bargaining on his part.
(Skyline Homes, Inc, 134 NLRB 155, Ainsworth Manufacturing Company, 131
NLRB 273; Gateway Luggage Mfg . Co., 122 NLRB 1584, Automotive Supply Co.,
Inc., 119 NLRB 1074.)
As a corollary to the Company 's position , the Union was foreclosed from bargain-
ing at any of the meetings Indeed, at the meetings prior to the settlement of the
strike the Company was concerned only with securing the return of the strikers so
it could operate the plant , and after the strike was settled it was interested primarily
in having the Union take appropriate steps to remedy the Company 's unfavorable
position , created by the action of the Trades and Labor Council and a union delega-
tion in publicizing the labor dispute to its customers and dealers.
About September 27, the Company finally submitted as a counterproposal the same
contract it had presented to the Union in September 1961, which proposal , as Weston
stated, "had been discussed and negotiated and rejected in 1961." However, there
was some discussion of this proposal , as well as the Union 's proposal , and while tenta-
tive agreement was reached on some provisions , no agreement was reached on im-
portant provisions covering union security , overtime , term of contract , wages, use
of the union label, and strikes and lockouts . At the Company 's insistence , the Union
submitted the proposal to the employees , who voted unanimously to reject it.
Certainly , nothing occurred at this meeting remotely suggesting that the Company
had suffered a change of attitude toward the Union and came to this meeting with a
genuine desire to negotiate an agreement with the Union . On the contrary, it did
nothing more than present a stale, previously rejected contract , which it must have
known would be again rejected, and then go through the motions of bargaining by
tentatively agreeing to some terms , but not important ones. Clearly , the meeting
was meaningless and obviously the Company was of the same opinion for Reber
did not even mention it in the course of his testimony.
Manifestly , there is no evidence to support the Company's contention that the
parties reached an impasse on the union -security clause. Actually there was no real
bargaining on that subject , or any other bargainable subject. Thus , Smith testified
that union security was briefly mentioned at the meeting of August 21, and the Union
submitted a maintenance-of-membership clause for consideration . Reber claimed he
did not understand the meaning of such a clause, but , in any event , he could not
bargain on such a matter without authority from top company officials. Smith's
testimony was not challenged or contradicted . While Reber testified the Company
was opposed to a union -security clause, and referred to it as "the biggest stumbling
block ," his only testimony concerning that subject was that he thought union security
was discussed "very, very slightly" at the meeting of August 21. I find the Company
refused to discuss any form of union security and no impasse was reached on that
subject.
At the meetings of August 6, August 21 , perhaps September 18, and by letters
dated August 7 and 10, the Union requested the Company to furnish it with a list
showing the names and addresses of employees in the unit , their dates of hire, job
classifications , and wages . Data of this nature was relevant to bargaining negotia-
tions, and the Company does not challenge its relevancy . However , the Company
did not furnish this information to the Union until October 5, some 4 days after the
final meeting between the parties . Reber admitted he had this information or list
at the meeting of August 21 , but he did not give it to the Union since it was obsolete
and required revision . I can understand why this information may have been diffi-
cult to obtain during the period of the strike , but all the strikers returned to work
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on August 13, so the Company's employment records should have been stabilized
shortly thereafter, and the information readily available. The Company's refusal to
furnish this information for almost 2 months, which, in the circumstances, amounted
to an absolute refusal to supply the data, is additional proof the Company was not
bargaining in good faith with the Union. (Electric Furnace Company, 137 NLRB
1077; Oates Bros. Inc., 135 NLRB 1295.)
From the chronology of events, as set forth above, it is clear the Company en-
gaged in dilatory and stalling tactics, thereby indicating its lack of good faith in
its dealings with the Union. (Alberto Culver Company, 136 NLRB 1432; Inter-
national Powder Metallurgy Company, Inc, 134 NLRB 1605; Oates Bros., Inc.,
supra.)
By engaging in the acts and conduct found above, the Company has, on and after
June 15, 1962, failed and refused to bargain collectively with the Union and thereby
interfered with, restrained, and coerced its employees in the exercise of their rights
guaranteed in Section 7 of the Act, in violation of Section 8(a)(5) and (1) thereof.
E. The alleged violations of Section 8(a) (3)
The complaint alleges that on and after August 6 the Company discriminatorily
refused to reinstate Charles Tveidt, one of the strikers.
Tveidt went on strike July 2 and remained on strike until the morning of July 23,
when he and four other strikers (Stead, Saylor, Post, and Egan) went to the plant,
applied for reinstatement , and were put back to work in about 15 minutes. Tveidt
said that while working that morning some of the employees laughed at him and
made remarks the substance of which he did not actually overhear. Tveidt left for
lunch at the regular time, about 11:30, and met with the four other returning strik-
ers, who worked in different departments. Seemingly, Tveidt mentioned what had
happened that morning and he, Egan, and Post decided not to return to work at the
end of the luncheon period There is no evidence Tveidt complained of his treat-
ment by fellow employees to his foreman or any supervisor and, admittedly, he did
not inform any supervisor he was not returning to work and he did not punch out his
timecard. According to Tveidt employees did not punch out for their normal period,
but they were supposed to do so if they intended to stay out any length of time.
Tveidt joined the strikers, but did not apply for reinstatement with the other strikers
on August 6 because he was working temporarily for his father. However, the fol-
lowing Thursday, August 9, he went to the plant office where he spoke to a lady about
putting in his application for work and she told him the Company had all the
applications it needed. Tveidt did not mention he was a striking employee.
On August 13, Tveidt spoke to Reber about returning to work and Reber, in effect,
stated that he was not required to reinstate him since he had been reinstated once
and "walked back out" of his job
Reber testified that Tveidt was terminated for failing to report for work after the
lunch period, without punching out or telling his foreman he was leaving, in violation
of a company rule which prohibited employees from leaving the plant during working
hours without permission . Reber assumed Tveidt had quit his job and prepared and
signed a change of status report wherein he gave the foregoing reasons for his termi-
nation. While the report was dated July 23, Reber would have reemployed Tveidt if
he had reported for work the next day. In fact, Egan was reemployed when he
reported for work the next morning. Like Tveidt, Reber said the employees were
not required to punch out for their normal lunch period, only when they intended
to stay out for any extended period of time. Reber also stated he saw Tveidt on
the picket line the next day or several days after July 23.
The General Counsel contends that Tveidt engaged in concerted activity when he
left his job to join the strike and is entitled to reinstatement the same as other striking
employees, citing N.L.R.B v. Washington Aluminum Company, 370 U.S. 9, and
Giustina Bros. Lumber Co., 116 NLRB 700. In general, the Washington Aluminum
case stands for the proposition that employees do not necessarily lose their right to
engage in concerted activities merely because they do not present specific demand
upon the employer to remedy objectionable conditions The Giustina case (citing
Pecheur Lozenge Co., Inc., 98 NLRB 496, 499, footnote 7) holds that a group of em-
ployees who accepted reemployment for a few days during the strike and then joined
the strike were entitled to reinstatement, the same as other strikers. However, the
cases are readily distinguishable from the present case on a factual basis. Here the
undisputed evidence shows that Tveidt left his employment for purely personal
reasons, not because of any unfair labor practices on the part of the Company, or in
furtherance of the objectives of the strike. Accordingly, I find that irrespective of
KIT MANUFACTURING COMPANY, INC. 973
whether he voluntarily quit his employment or was terminated for leaving his job, he
was not thereafter entitled to reinstatement as a striking employee. (The W. T.
Rawleigh Company, 90 NLRB 1924, 1927.)
The complaint also alleges that on or about August 27 the Company discrimina-
torily discharged Pat Korn.
Korn was employed about May 28 and worked as a janitor until about the middle
of June when he was transferred to the stockroom. Korn went on strike and was
reinstated on August 13 as a janitor. At all times he worked under Foreman
Carter. About 2 weeks after his reinstatement, Carter, at the end of the shift,
handed Korn an envelope and said he was sorry but he had to let him go. When
Korn asked the reason for his discharge, Carter replied he had not been putting out
enough work and that he had observed Korn "standing on the broom." Korn
stated that same day, he, Blair, and another employee were cleaning up in prepara-
tion for a show that day, and about 4 o'clock he stepped outside the door, to let a
forklift pass through, and "was sort of leaning on the broom." Korn admitted he
had leaned on the broom "once in a while," but he had never been criticized for his
work.
Blair worked with Korn both before and after the strike and considered him "a
pretty good worker," but "a little on the slow side." Korn also told Blair, shortly
after his termination, that he had been discharged for not doing his work. The next
day Blair asked Carter the reason for Korn's discharge and Carter replied "he wasn't
putting out the work." Blair said that on the day in question, Foreman Howard
told him and Korn they were getting ready to show some new trailers and he wanted
the area cleaned up in a hurry, which they did.
Carter testified that from the very beginning of Korn's employment he was not
satisfied with his work and he put him in the stockroom to see if he would be more
adaptable to that type of work. Korn worked there only 10 days when the strike
occurred and later he was reinstated as a janitor. Carter observed the manner in
which Korn was performing his work on August 27, the day they were preparing for
the show, and decided to discharge him because he was too slow and "goofing off"
during working hours. He thereupon told Korn he was being discharged for these
reasons. Carter admitted he had never reprimanded Kom in the past, although he
had "boosted him along at different times."
The General Counsel argues that "Korn's protection as unfair labor practice
striker continued after the strike" and by discharging him "for an inadequate reason
and not for cause," the Company violated Section 8(a) (3) of the Act. I do not
accept this argument.
Although the Company clearly demonstrated its hostility and opposition to the
principle of collective bargaining, I am of the opinion its animus in this respect, and
nothing more, is insufficient to prove unlawful motivation on the part of the Com-
pany in dismissing Korn. Certainly, there is nothing in the record suggesting that
Korn had engaged in any unusual or outstading activities on behalf of the Union,
which might warrant the inference that, of all the strikers, he was selected for
termination in retaliation for his activities in order to discourage membership in
the Union. The testimony of Korn, Blair, and Carter shows that Korn was slow and
inclined to loaf on the job. I therefore find Korn was discharged for reasons other
than his union membership or activities.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, above, occurring in con-
nection with the operations of the Respondent, described in section I, 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 com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent engaged in unfair labor practices by aiding,
assisting, and encouraging an employee in the circulation of a petition to decertify
the Union, and by refusing on and after June 15, 1962, to bargain with the Union
as the exclusive representative of its employees in an appropriate unit, I shall recom-
mend that the Respondent cease and desist therefrom and, upon request, bargain
collectively with the Union, and, if an understanding is reached, embody such under-
standing in a signed agreement.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Kit Manufacturing Company, Inc., is engaged in commerce within the meaning
of Section 2(6) and ( 7) of the Act.
2. Sheet Metal Workers International Association , Local 213 , AFL-CIO, is a
labor organization as defined in Section 2(5) of the Act.
3. All production and maintenance employees employed by the employer at its
Caldwell , Idaho , plant , excluding office clerical employees , professional employees,
servicemen , and all supervisors as defined in the Act, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9(b) of
the Act.
4. The Union at all times material herein has been , and now is , the exclusive
representative of all employees in the aforesaid appropriate unit for the purposes
of collective bargaining within the meaning of Section 9(a) of the Act.
5. By refusing , on and after June 15, 1962, to bargain collectively with the Union
as the exclusive representative of the employees in the aforesaid appropriate unit, and
by interfering with , restraining , and coercing its employees in the exercise of the
rights guaranteed them in Section 7 of the Act, the Respondent has engaged in un-
fair labor practices affecting commerce within the meaning of Section 8(a)(5) and
(1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
7. The Respondent did not discriminatorily refuse to reinstate Charles Tveidt, as
alleged in paragraph XX of the complaint , and did not discriminatorily discharge
Pat Korn as alleged in paragraph XXI of the complaint.
[Recommended order omitted from publication.]
Artistic Embroidery , Inc. and International Ladies Garment
Workers' Union , AFL-CIO, Local No . 415. Case No. 12-CA-
2218(1-2). June 7, 1963
DECISION AND ORDER
On December 13, 1962, Trial Examiner Ramey Donovan issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had engaged in and was engaging in certain
unfair labor practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the at-
tached Intermediate Report. Thereafter, the Respondent I and the
General Counsel filed exceptions to the Intermediate Report and the
Respondent filed a supporting brief.
The Board 2 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 In-
termediate Report, the exceptions and brief, and the entire record in
1 The Respondent contends , inter olio, that the Trial Examiner 's Recommended Order
requiring It to execute the agreement reached by the parties does not indicate whether the
"renegotiability" clause is to be included or excluded from the contract. The agreement
reached on October 31 , 1961, was that the written contract would not contain a re-
negotiability clause, and we interpret the Trial Examiner 's order as requiring the Respond-
ent to execute the contract offered it on or about November 17, 1961, which excluded this
clause. As so interpreted , we are affirming the Trial Examiner 's Recommended Order.
2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[ Members Rodgers , Fanning, and Brown].
142 NLRB No. 111.