Local No. 423, Laborers

National Labor Relations Board - Board Decisions

Nov 13, 1969

179 N.L.R.B. 558 (N.L.R.B. 1969)

558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 423 , Laborers ' International Union of North
America, AFL-CIO, and Laborers ' International
Union of North America , AFL-CIO and Office &
Professional Employees International Union,
AFL-CIO, Local No. 333. Cases 9-CA-4525-1,
9-CA-4525-2, 9-CA-5083-1, and 9-CA-5083-2
November 13, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND ZAGORIA
On June 4, 1969, Trial Examiner George J. Bott
issued his Decision in the above-entitled proceeding
finding that Respondents had not engaged and were
not engaging in certain unfair labor practices alleged
in the complaint, and recommending that the
complaint be dismissed in its entirety, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the General Counsel and the Charging Party each
filed exceptions to the Trial Examiner's Decision
and supporting briefs. The Respondents then jointly
filed an answering brief.
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 these cases to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in these cases, 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 National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the complaint herein be, and it hereby is,
dismissed in its entirety.
In circumstances differing from those presented herein , we might well
decide that events characterized by the Trial Examiner as "other items or
acts" were , as the General Counsel contended , indicative of the
Respondents ' unlawful desire to frustrate agreement , thereby violating Sec
8(a)(5) of the Act Similarly, the validity of the Respondents ' position that
it had no legal obligation to offer a counter proposal on seniority could be
viewed in a different perspective were it not for other conduct of the
parties As pointed out by the Trial Examiner, it is not disputed that the
issue which prevented agreement was seniority , and as to this issue there
was full discussion For this reason , we agree with the Trial Examiner's
conclusion that the General Counsel has not sustained the allegations of
the complaint and that the Respondents ' conduct at the bargaining table
did not reveal that they were not conferring in good faith as required by
Sec 8 (d) of the Act
TRIAL EXAMINER'S DECISION
charges of unfair labor practices filed against the
Laborers' International Union of North America,
AFL-CIO, and its Local No. 423 (herein sometimes called
Respondents or Employer) on November 16, 1967, in
Cases 9-CA-4525-1, 2, by the Charging Party (herein
called Union or Office Employees) the General Counsel of
the National Labor Relations Board issued a consolidated
complaint and notice of hearing on November 25, 1968,
alleging that Respondents had engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (5) of
the National Labor Relations Act, herein called the Act'
On March 12, 1969, on charges filed by Office Employees
on March 6, 1969, in Cases 9-CA-5083-1, 2, the General
Counsel issued a complaint and notice of hearing alleging
that Respondents had violated Section 8(a)(1) and (3) of
the Act. Respondents filed answers admitting certain
allegations of the complaints but denying the commission
of any unfair labor practices All cases were consolidated
for hearing, and a hearing was held before me in
Columbus, Ohio, on March 25, 26, and 27, 1969, at which
all parties were represented. Subsequent to the hearing,
General Counsel and Respondents filed briefs which have
been carefully considered
Upon the entire record in the case' and from my
observation of the witnesses, I make the following
FINDINGS OF FACT
1. JURISDICTION OF THE BOARD
Respondent Laborers' Local No 423, during the
12-month period prior to the issuance of the complaints,
transmitted per capita dues and pension fund fees in
excess of $25,000 from its headquarters in Columbus,
Ohio, to Respondent International Laborers' at its
headquarters in Washington, D.C. Respondent concedes
and I find that it is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
Respondent International Laborers', is a voluntary
unincorporated association with offices and headquarters
in Washington, D C During the 12-month period prior to
the issuance of the complaints, Respondent International
received per capita dues and pension fund fees in excess of
$1 million at its Washington office from its various local
unions located in various States of the United States
Respondent International concedes, and I find that it is an
employer engaged in commerce within the meaning of
Sections 2(6) and (7) of the Act
II. THE LABOR ORGANIZATION INVOLVED
The Charging Party is a labor organization within the
meaning of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A The Refusal To Bargain
1 Background and Issues
The Charging Party, Office Workers, had contracts
covering Respondent Laborers' Local No. 423's office
employees for about 10 years when the last one expired in
STATEMENT OF THE PROCEEDING
GEORGE J BOTT, Trial Examiner Upon separate
The General Counsel issued an amended complaint in these cases on
February 24, 1969
'Respondent's motion to correct transcript is hereby granted
179 NLRB No. 100
LOCAL NO. 423, LABORERS 559
November 1967 The complaint in Cases 9-CA-4525-1 and
2, alleged that Respondents International and Local
(International had the Local under a trusteeship at
material times) refused to bargain with Office Workers in
good faith thereby causing an unfair labor practice strike.
Under General Counsel's theory of the case, the roots of
the alleged refusal lie very deep and so it is essential for
an understanding of the theory to return to 1966 and
conditions in Laborers' Local No. 423 at that time
The principal functionaries in a local union of the
Laborers' are the secretary-treasurer and the business
manager In 1966 Marshall Cobb was secretary-treasurer
of the Laborers' Local in Columbus, Ohio, but he and the
then business manager were deposed in a political
upheaval which took place in the Local. There were only
two office employees employed by the local just before the
movement in which Cobb was ousted and these positions
were filled by his daughters Geraldine and Marcella
Apparently as part of the political power play, the group
which succeeded Secretary-Treasurer Cobb immediately
fired Geraldine and Marcella Cobb declaring that their
jobs had been abolished ' This discharge action took place
on April 22, 1966, and on May 5, 1966, Office Employees
Local No. 333, the charging party in this case also, filed a
grievance under its existing contract with Laborers' Local
No 423 asserting a violation of the agreement in the
discharge of the two employees
The Employer Local Union of the Laborers' denied the
grievance and 'the cases went to arbitration in early
December 1966 In the meantime, however, a trusteeship
over the affairs of the Local had been imposed by the
Laborers' International on September 1, 1966, which was
after the Cobbs had been fired and had filed their
grievances, but before the cases were heard by the
arbitrator Robert Powell, International vice president,
had investigated the affairs of the Local and was
appointed trustee on September 1, 1966.
Powell testified that he found conditions in the Local
bad and notorious during his investigation. He mentioned
certain internal conditions and also noted that the United
States Department of Labor had been conducting an
investigation of the Local
Powell became aware that there were grievances
pending involving the discharge of Cobbs after he assumed
the trusteeship He stated that it was his position and that
of the International Laborers' that the Cobbs had been
wrongfully discharged and that the discharges "were
entangled with other internal" local problems He
conceded that he as a trustee had the authority to
withdraw the cases from arbitration and reinstate the
employees, but he explained that after discussion with
other higher officials it was decided that the arbitration
should proceed but that the International Union should
play a neutral role in it It was his opinion that those
officials involved in the discharges would lose the
arbitration case and this would be another weapon which
could be used against them to effect their removal
I he arbitration case proceeded and Local No. 423 of
the Laborers' (still in trusteeship) was represented by the
attorney who had handled much of the Local's affairs
prior to trusteeship. It also appears that a Laborers'
International Representative testified at the hearing, but
Powell said that he testified only with respect to the
condition in which he found the Local's records when he
investigated its affairs with Powell
On January 10, 1967, the arbitrator issued a decision in
the case awarding reinstatement and backpay to Geraldine
Cobb and Marcella Holland (Cobb) In brief, he found
that the jobs of the grievants had not been abolished,
that there was a valid and existing labor agreement,
contrary to the Local Union's contention, and that the
Employer was estopped to say that the grievants were
discharged for cause
The Cobbs were reinstated in April 1967. Attorney
Leonard Sigall, who represented Local No 333 of the
Employees on behalf of the grievants in the arbitration
proceeding, testified without contradiction that an
attorney who had been retained by the International
Laborers' to handle the case involving the Cobbs after the
award issued told him that the International Laborers'
Union would not reinstate the Cobb sisters in accordance
with the terms of the award He added that they were
actually reinstated with backpay after he told Counsel for
the International that he was prepared to file suit in
federal court to enforce the award Powell, on the other
hand, explained that reinstatement of the Cobbs was
delayed because he wished to be present at the Local's
office when it occurred because there had been opposition
expressed to reinstatement by a certain faction in the
Union. He said he wanted to assure that reinstatement
would be peaceably effected
It is General Counsel's theory that the bargaining with
the Office Workers, described below, was entered into by
Respondents with the fixed intention of precluding the
parties from arriving at an agreement, especially on
seniority, in order that Respondents could eventually
"dispose of the services of the Cobb sisters and abort the
results of the arbitration award " Respondent masked this
reason, the theory goes, thereby precluding the Union
from dealing adequately with the real issue in bargaining,
namely, "the contemplated discharge and replacement of
the Cobbs.", This course of conduct amounted to a refusal
to bargain in good faith, it is contended, and this is the
principal issue in the case A subsidiary issue is the failure
to reinstate two of the strikers after what is alleged to
have been an unfair labor practice strike In brief,
Respondents claim that they met and bargained with the
Office Workers on many occassions in good faith, but
came to an impasse on the seniority issue particularly.
2 Collective bargaining before the strike
With the Cobbs reinstated there were now four regular
office employees in the bargaining unit and a supervisor.,
The Office Workers' Union's contract was due to expire
in November 1967 and, after appropriate notice,
bargaining for a new agreement commenced in
September. During the negotiations which preceded a
strike which took place on November 16, the Respondents
were represented by Robert Powell, International
vice-president and trustee of the Local, Mrs. Williams, the
office manager, Lyle Rivers, then acting
secretary-treasurer of the Local, appointed to his position
by Powell, and John Scales, acting business manager
'Quotations from General Counsel's brief in which the theory is set out
more extensively
'Geraldine Cobb is Miss Cobb, but Marcella is Mrs Holland At some 'Supervisor Williams, Mrs Ferguson, Miss Geraldine Cobb, Mrs
points in the decision they will be referred to as the Cobbs Marcella Holland (Cobb), and Mrs Kathryn White
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
under the trusteeship.' Local 333 Office Workers was
represented in bargaining before the strike by Mrs.
Katherine Lewis, president of the local, accompanied
usually by Miss Geraldine Cobb or another employee
union member.
The first negotiating session took place on September
1 l and nothing of major significance occurred Powell did
make some comment to the effect that if he had been
present at the arbitration hearing the Office Workers
would not have been successful This remark was never
developed, and Lewis said she tried to avoid that subject
because it was controversial. There was also some
discussion about a possible change in Geraldine Cobb's
duties and some criticism of Marcella Holland's work.
Powell also said that the Cobbs could not perform cashier
work Lewis said she could not understand this because
both were bonded
Another meeting took place around September 15. By
this time the Union had presented its proposal to the
Employer containing a senioiity section which provided
that the Employer would recognize the "principle of
seniority for all employees, namely that the last person
hired shall be the first to be laid off, providing the
employees remaining can do the work that the employee
laid off can do " The article of the proposed contract
relating to seniority made other provisions to cover
various contingencies, but the basic problem in the case is
the parties' deadlock on the principle of seniority in
layoffs or other reductions in staff, for it is here where the
General Counsel and the Charging Party claim that the
employer bargained in bad faith Although seniority is the
key issue, there was no discussion of it on September 15
At a meeting held on or about October 24, 1967, the
Employer presented a contract proposal which did not,
however, contain any provisions of any kind relating to
seniority as it is commonly understood in this field
According to Lewis, Powell's replies to her many protests
that his proposal failed to make provision for an
employee's length of service were curt and laconic She said
that Powell noted only that the Laborers' Union contracts
had no seniority provisions and he did not intend to give
one to the Office Workers It does appear from her
testimony, however, that job classifications were discussed
and agreed to, and that Powell and Rivers voiced some
complaints about the quality of one employee's work.
Lewis also recalled on cross-examination that Powell
indicated that the Employer might face a layoff and did
not want to be required to retain an employee with many
years of service who was not able to perform as well or do
as many tasks as a less senior employee. Lewis said that
she assured Powell that under her proposal the Employer
would have ample protection in such a situation because
seniority would control only if the person retained was
able to do the work required.
Two more meetings between the parties took place
before a final one on the day before the strike, but the
dates of these earlier meetings were not clearly fixed by
the witnesses It appears that both were in November and
Powell was not present at either, but had delegated Lyle
Rivers, acting secretary-treasurer of the Local, to
'No attempt is made here to make the fine distinction between the Local
as a Local and the Local as a Local in trusteeship, or between Powell,
International vice president and his appointees as International
representatives and as trustees of the affairs of the Local They are all
collectively called "Respondents " it should be noted that not each person
named as a representative appeared at every bargaining session If he did
not and it is important , it will be noted
represent him Lewis recalled that Powell was not present
at a meeting which Rivers attended around November 14
I find that two meetings occurred in November, besides
the last session on November 15 before the strike. In any
case, the substance of these meetings as it relates to the
issues in this case is that Lewis again raised the seniority
question and insisted on her proposal Again, according to
her, Rivers, or Scales, acting business manager, told her
that the Employer had already granted a good deal, that
the employees should trust them, but they would not agree
on seniority She said that the extent of the discussion on
seniority on the Employer's part was just "No," or "The
Laborers' don't have it, you won't get it." In both of these
meetings she said she spent most of her time arguing for
seniority and pointing out that she could not take less on
this issue from the Laborers' Union than she had obtained
from other employers in the area It also appears that
other items in the proposals were discussed at these
meetings and resolved Wages, for example, were agreed
to on November 14
The last meeting before the strike, held on the night of
November 15, did not last very long Lewis said that when
Powell entered the meeting she immediately raised the
seniority issue and asked him if he was "ready to discuss
seniority and for the seniority provision in the contract"
His answer was "No," she said, and his only stated reason
was that the Laborers' had no such provision in their
agreements. She said she also asked him if he meant that
he was "not going to negotiate on a seniority clause," and
he answered "That's right " She qualified her description
of Powell's reply by adding that such was the "effect" of
it, and she also stated that "all we discussed that night
was seniority to the very end "
When it appeared to Lewis that Powell would not agree
on seniority, she reminded him that the contract was
about to expire and added "no contract, no work " Powell
asked if the employees would report for work the next
day, but she merely repeated "No contract, no work " On
the following morning all four employees in the unit
struck and picketed, but Mrs Holland and Mrs Ferguson
returned to work the next day
Powell and Rivers testified about the bargaining
sessions which they attended before the strike Rivers said
he attended two meetings in November at which Powell
was not present and claimed he had authority to sign a
contract if agreement had been reached Seniority was
discussed at these meetings and he told the Office
Workers that they must present the Employer with a
proposal it "could live with " The Charging Party's
proposal remained unchanged at these meetings, and he
said he did not feel he could rely on Mrs Lewis' oral
assurances that there would be no problem in the event of
a layoff because the Union's proposal included "ability"
to do the work as a limitation on straight seniority. He
also testified, and there is no question about this, that all
other issues were resolved before the strike.
During the last meeting which preceded the strike,
Rivers said Powell told Lewis that "she had a product to
sell but she hadn't sold him." This was after a discussion
of the Charging Party's proposal which remained
unchanged at the time When Lewis made her "no
contract, no work" statement, Rivers recalled that Powell
asked if it were possible to continue negotiations without a
strike
When Powell was preparing to go to Columbus for the
first bargaining meeting he asked the International
Union's associate counsel for suggestions and was
reminded that the International Laborers' Union operated
LOCAL NO. 423, LABORERS
under an agreement with Local 2 of the Office &
Professional Employees International Union, AFL-CIO,
negotiated on their behalf and a number of other
AFL-CIO unions by the AFL- CIO Powell obtained a
copy and used it as a guide in drafting his proposals to the
Charging Party in this case His proposal contains no
seniority provision, although it was stipulated that the
AFL-CIO agreement with Local 2 does
According to Powell, seniority was the stumbling block
in the negotiations with the Office Workers, and he
explained that he was opposed to seniority , particularly in
the situation in which he found the Local Laborers'
Union He said that the Charging Party ' s proposal on
seniority would , in his view , control all other relevant
provisions of any agreement negotiated , and if there were
a layoff in any area of the office , an individual with
seniority might have to be retained regardless of ability
He said he " frequently" expressed these views to the
Charging Party during negotiations and asked that he be
given some proposal which would assure " flexibility "
The bargaining session on November 15 lasted only
about 10 minutes , Powell said Lewis stated that the
Office Workers wanted a seniority clause , and he told her
to draft something that he could work with Lewis
announced " no contract , no work," and said she was
going to "embarrass " him with a strike Lewis then
walked out with her committee Prior to this time there
had been no change in the Office Workers ' seniority
proposal 7
3 Negotiations after the strike
The parties held another bargaining meeting on
November 22, 1967 Lewis said that Powell presented
written changes in his earlier proposals and informed the
Union's committee that he was "going to tighten up that
contract now, because we went on strike," and was going
to punish the employees because of the bad publicity
resulting from the strike Lewis said she questioned Powell
on a statement in his changed proposal which read
"Delete - fear re Seniority," but never got an
explanation then or later about what he had in mind.
The strike continued, and the parties arranged a
meeting for December 22 Lewis advised Rivers that she
would have an attorney present, and, as a result, Powell
arranged to have Attorney Arthur Schiller, from the
Washington office of the International, present. Most of
the evidence about what happened at this meeting and a
subsequent one on January 10, 1968, also attended by
attorneys for each side, is in the testimony of the lawyers,
but Lewis and Powell also had something to say about
them
According to Lewis, the January 10 meeting was very
brief and practically all of the discussion centered around
seniority She said that Schiller just kept telling her and
her committee that everything they offered on seniority
was "unacceptable." Apart from noting that there was a
meeting on December 22, 1967, she did not mention its
content.
Leonard Sigall, who had represented Local 333 of the
Office Workers in the arbitration case involving the
'Geraldine Cobb and Kathryn White, who struck and were denied
reinstatement later , testified briefly about some of the negotiations which
they attended In my opinion , they contribute little to this phase of the
case White recalled Powell saying at the November 15 that he was not
"buying" their "product" (Seniority ) Miss Cobb could not recall the
meetings vividly, and her statement that Rivers and Scales had no
authority to negotiate was credibly denied by Powell and Rivers
561
discharge of the Cobb sisters, was the chief negotiator for
the Union on December 22. The principal topic discussed
was seniority, and he made several proposals on it. He
said that the Employer's general reaction to all proposals
was manifold, in that the Employer expressed the position
that, (1), it wanted no provision on seniority in the
contract at all, (2), it would never agree to arbitrate a
grievance concerning seniority and (3), it would not make
a counterproposal in that area or tell the Union what kind
of a seniority proposal it might accept The Employer did
indicate, however, that it would listen to any proposal the
Union wanted to make Sigall recalled that Schiller
suggested that he use his inventive mind and come up with
something that Powell might accept
At one point, probably early in the negotiations, Sigall
proposed that seniority be confined solely to job
classifications of which there were only four Later he
proposed that the parties agree only that the Employer
recognized "the principle of seniority" and leave it at that
These proposals were rejected, and when he asked the
Employer for a counterproposal or a suggestion about
what kind of a seniority arrangement it would consider,
Schiller refused to make one and said there was no legal
obligation to do so
After a recess Sigall submitted two alternative
proposals which he had drafted during the break The first
proposal, as,it read after Schiller changed a word or two,
was'
"Employees shall be laid off and recalled in their
classification in accordance with their seniority and their
ability to do the work On questions of ability to do the
work the Employer's judgment shall be final except that
such judgment shall not be exercised arbitarily. A claimed
violation of this section shall not be subject to the
grievance procedure nor shall the employees' strike
concern the claimed violation of this section "
Sigall pointed out that there were no no-strike
proposals in the Employer's or the Union's proposals up
to this time and that the recently expired contract between
the parties did not contain a no-strike clause He said that
he made this proposal to meet the Employer's insistence
that it would never arbitrate a seniority grievance. He
explained to Schiller, however, that although the Union
would not grieve about a claimed seniority violation or
strike over it, it reserved the right to file a law suit for
breach of contract if it felt that the provisions were
violated
When Schiller had considered Sigall's proposal as just
set out, he told him that he wanted a no-strike clause in
the agreement Since the Employer had taken the position
that it would never submit a seniority grievance to
arbitration, Sigall said he saw no reason at that stage to
agree to a no-strike clause At that point Schiller stated
that a "no strike clause was the quid prod quo for the
grievance procedure," and Sigall responded that, in that
case, the Union would have to strike or sue the Employer
on every grievance, and if that was what the Employer
wanted that was what it would get
Because the Employer took the position that a no-strike
clause was a necessary concomitant to a grievance
procedure, Sigall said he withdrew part of the first
proposal he had just made to the Employer and proposed
as an alternative that the "Employer recognizes the
principle of seniority but the parties agree that so long as
only one employee is working in each classification,
seniority shall not apply to layoffs and recalls except that
an employee laid off from her job shall be recalled to her
job before a new employee is hired " Schiller responded
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that these proposals would be considered, and
arrangements were then made for a meeting on January
10, 1968
The meeting on January 10, 1968, was short. According
to Sigall, he told Schiller that the Office Workers would
agree to a broad no-strike clause if the Employer would
either make a counterproposal regarding seniority or tell
the Union generally what type of seniority it might accept
He said Schiller replied that the Employer had no duty to
make such a counterproposal. Sigall accused the
Employer of bargaining in bad faith, and the meeting
adjourned It was his view that seniority was the only
issue blocking agreement and that a no-strike clause and a
grievance procedure were unresolved only because
seniority was unresolved
Schiller's version of negotiations at the December 22
and January 10 meetings is not radically different from
Sigall's, although there may be some differences in
shading, emphasis and interpretation Schiller had not
been present at earlier meetings but he had consulted with
Powell who sought his advice after the strike 8 Powell told
Schiller about the seniority issue in bargaining and
explained what he thought he needed in that area Schiller
prepared the written proposed modifications to the
Employer's original proposal which Powell gave the
Charging Party in the November negotiations
The contract was reviewed on December 22 and
practically everything appeared to be resolved except
seniority and directly related issues Schiller asked that
any language in the contract which might by implication
indicate agreement on seniority be eliminated For
example, reinstatement of improperly discharged
employees "without loss of seniority" in a written
proposal was changed to read "reinstatement without
prejudice." He also proposed to withdraw the Employer's
original proposal that there would be no reduction in
benefits in the new contract on the theory that it could be
implied from such a proposal that there had been
agreement on seniority since it could be argued that
seniority was a benefit This issue was resolved later, but
passed for the moment to see what the parties could
decide about seniority as such
A few other matters, relatively minor, were discussed,
and then the parties went directly to the issue on which
they had been deadlocked - seniority. Schiller said that
Sigall stated that the Union needed a seniority clause, and
he explained why the Employer was against one. He
pointed out that the Local was in trusteeship, and when it
was lifted it would have to live with whatever was
negotiated in these sessions He explained, he said, that
the Employer needed freedom to move one employee from
one job to another, for there were only four of them, and
he emphasized that the Employer wanted to keep the best
employee in a layoff and feared that seniority would
restrict its choices There was also some discussion about
whether there really was a seniority problem, since there
was presently only one employee in each job classification,
and, if there was no work in a classification, the employee
occupying it would be laid off. This led Schiller to observe
that, if there were more than one person in each job
classification, problems could arise, and he commented
that in such a case the Employer might consider the
principle of seniority if seniority were not subject to the
grievance procedure and arbitration Schiller recalled that
Sigall asked at that point if the Employer would agree to
accept the principle of seniority in layoffs and discharges
if the employees could not strike over alleged violations
This suggestion was not pursued at the time
After further discussion of seniority and why the
Employer didn't want it, a luncheon break occurred.
Schiller said that during the recess Powell told him that
he insisted on being protected against having to lay off the
most capable person in a reduction in staff in order to
keep the most senior He said it also occurred to him at
lunch time that the Employer's proposal did not contain a
no-strike clause, and he advised Powell that the Employer
needed one.
Schiller agreed that Sigall made a proposal that
seniority should be recognized in layoffs only within
classifications and that the Employer's judgment would be
final unless arbitrary or capricious He countered this by
suggesting that under such a clause an arbitrator might
place the burden on the Employer of proving that its
action was not arbitrary, and he also argued that the
Union had ample protection against arbitrary discharge in
the Employer's "just cause" for discharge provisions of its
proposal Sigall disagreed on both counts
Schiller also agreed that Sigall made two alternative
proposals When the first one was read, he commented
that on its face it looked like something the Employer
could accept. It was then, however, that he proposed that
there should be a no-strike clause in the contract, and
when Sigall argued that there had been none in the
expired agreement, he took the position that a no-strike
clause was the "quid pro quo" for the grievance and
arbitration procedure Sigall refused to agree, and Schiller
continued to insist on a no-strike clause as "part and
parcel" of a "grievance and arbitration procedure "
As Schiller continued to maintain that there would be
no grievance and arbitration provisions if there were no
no-strike clause, Sigall made the second of his alternative
proposals as set out above in his testimony According to
Schiller, Sigall said if either of these proposals were
accepted by the Employer, the parties would then have a
complete agreement. There then occurred a discussion
about arrangements for the next meeting, during which,
according to Schiller, Sigall stated that "without a
no-strike clause we will be settling disputes in the streets
and that you will be hit with a strike this summer " Sigall
then insisted that he wanted a response from Schiller to
his alternative proposals by December 27 '
Schiller and Sigall lead the discussions in the January
10, 1968, meeting Schiller said that before the meeting he
conferred with Powell and told him that he saw nothing
basically wrong with Sigall's first alternative proposal and
suggested that it might be acceptable, if it were made
clear that it covered discharges as well as layoffs Powell
asked Schiller if he was saying that if there was a person
on the payroll who was more efficient than another but
who had less years of service he could retain her in a
reduction in force Schiller advised that he would not be
"tied in" by the proposal and he could rely on ability as
the controlling consideration, but he couldn't guarantee
that grievances would not be filed and that seniority would
not be a factor to be considered
'Powell had also asked Schiller for some ideas when the parties were
preparing for bargaining in September 1967 and that was when Schiller
referred Powell to the AFL-CIO contract with Local 2 of the Office
Workers
'Schiller wrote a four-page, single-spaced letter to Sigall on December
26 in which he turned down Sigall's alternative proposals with reasons and
suggested that the new agreement contain a grievance and arbitration
procedure and a broad no-strike clause
LOCAL NO. 423, LABORERS
As the meeting opened Sigall addressed himself to
Schiller's written reply to his proposals on seniority and
insisted that the Employer come forward with a counter
proposal Schiller said he asked Sigall if the Employer
could consider that they had agreement on a no-strike
clause, but that he never got an affirmative answer on that
point. The meeting was short, he said Sigall accused the
Employer of being adamant on seniority, and rose and
stated, "I declare an impasse." The meeting adjourned
Schiller twice stated that Sigall did not say that the Union
would agree to a no-strike clause if the Employer would
change its position by proposing a seniority clause or even
indicating what kind of a seniority arrangement it might
accept. He also said that he did not state at the January
10 meeting that the Employer would never agree to
submit any dispute on seniority to either the grievance
procedure or arbitration. He conceded that he had stated
the Employer's position "almost in those terms," however,
at the December 22 meeting."
Powell testified that the Office Workers' Union made
no changes in its seniority proposal until Sigall made his
proposals in the December 22 meeting He said that at
that point it appeared that an acceptable agreement might
be worked out, but Sigall's remark about a possible
summer strike injected strikes and a no-strike clause into
the bargaining. He then demanded a no-strike clause
because he did not want to have the Local Laborers'
Union face a strike in its busy season on the basis of some
grievance."
Powell had very little detail to offer about either the
December 22 or the January 10 meetings, his explanation
being that, since the lawyers were handling the
negotiations, he felt he could play a minor role. He
recalled that Schiller suggested the necessity for a
no-strike clause and also indicated that the Employer
might be able to get along with Sigall's proposal on
seniority. He also recalled that the January 10 meeting
was brief and that only seniority and a no-strike clause
had been mentioned when Sigall declared an "impasse."
Powell agreed that seniority had been the stumbling block
in the negotiations along with, as he put it, the "recent
no-strike clause hangup " Although Powell indicated that
after the attorneys took over bargaining he "was sort of
sitting there taking up space," he stated that it was for the
attorneys to "work out a settlement" of the dispute, if
they could
There were no more bargaining sessions until the
Charging Party called off the strike and asked for
reinstatement of Miss Cobb and Mrs. White on January
31, 1969. By this time the trusteeship had been dissolved,
and Mrs Lewis met with Rivers who had now been
elected secretary-treasurer of the Local Lewis opened the
meeting by asking that the employees be reinstated, but
Rivers replied that they should first settle the contract
issues. The parties then reviewed all contract proposals
and apparently had no problems with any of them until
they reached seniority. When they did there was little
-Whether Sigall 's position on a no-strike clause was as clear as he said
it was , or whether Schiller 's version was the more precise , is the kind of
conflict I think it unnecessary to decide , since the difference to me is
caused by the natural emphasis negotiators put on their own
interpretations of what is being said in bargaining It is a fact that the
Employer made no counterproposals or indicated what type of a seniority
proposal it might find palatable
"Whether Sigall said there "would" or "could" be a strike , or just how
he phrased it, is another example of how the parties recall what they say
motivated them and does not have to be resolved , for there is no question
that strikes were mentioned
563
discussion and no agreement There have been no
meetings since Miss Geraldine Cobb and Mrs. White
have not been reinstated, and it appears that their work is
now being done by others. This subject will be treated in
more detail in that section of this decision relating to the
alleged discrimination against them in violation of Section
8(a)(3) of the Act
4 Evidence of admissions of Respondent's motives
In support of the theory that Respondents pretended to
bargain on seniority, but never really intended to reach an
agreement in order that the Cobb sisters might be
eliminated from its employ, certain evidence of oral
admissions was introduced. Brief reference has already
been made to Powell's cryptic statement at the opening of
negotiations that, if he had been present at the arbitration
hearing, the Union would not have won the case. The
most damaging admission, however, is claimed to have
been made by Powell away from the bargaining table
before negotiations began, and it involves a serious
credibility problem
Mrs Kathryn White was hired by the Employer in
September 1966 after the trusteeship was imposed, and
she worked as Powell's secretary until the strike in
November 1967. She participated in the strike as a
member of the Office Workers' Union and has never been
reinstated She testified that she and her daughter
attended a conference in Portland, Oregon, in August
1967, at Powell's invitation, and was invited to dine with
him According to her, during dinner the names of the
Cobb sisters came up in the conversation and there was
some discussion about the quality of their work During
this discussion, or because of it, "Powell said he didn't
intend to sign a contract, he didn't intend to have a union
in there," she said Asked if Powell explained why he did
not intend to sign an agreement or have a union, she first
stated that he did not, but later in her direct examination
she added that Powell said "that he wasn't going to have a
union in there and he said he was going to get rid of the
Cobb girls." This conversation occurred approximately a
month before negotiations for a new agreement with the
Office Workers began. Mrs White said there was some
discussion about her work and her salary, but there was
no discussion about the proposed contract itself or about
"seniority proposals."
Ida Harper is Mrs. White's daughter and is presently a
first year student at Ohio State. She said she was present
at dinner with her mother and Powell in 1967 and that she
was 16 at the time Miss Harper testified that she had
seen Powell previously at the Local's office, but she did
not know Geraldine Cobb or Marcella Cobb (Holland)
She testified that during dinner her mother and Powell
discussed "the Office of Local 423 and . the
negotiations coming up" and Powell said "that he had no
intention of ever signing a contract because he didn't want
the Cobb sisters in there." This is all that Harper could
remember of the dinner conversation, although other
things were discussed, she said
Powell recalled having dinner with Mrs. White and her
daughter during an Urban League conference held in
Portland, Oregon, in late August 1967, but he denied that
during the course of dinner conversation he stated that he
did not intend to sign a contract with Local 333 or have a
union He also denied that he said at that time that he
intended to get rid of the Cobb girls. He added that at no
time during the conference did he discuss with Mrs White
or her daughter questions of seniority, current
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective-bargaining relations, job security, the Cobb
sisters, his attitude toward the Union or anything of that
nature
I was not impressed by Mrs White's uncertain, halting
recall of just what Powell said about signing a contract in
connection with the Cobb girls, and I was equally
unimpressed by Ida Harper's remarkable mental retrieval
of one gold nugget from a conversation that happened
almost 2 years before the hearing in this case and which
she said she had not discussed with her mother since it
took place Not only did Mrs. White need some leading in
order to explain that getting rid of the "Cobb girls" was
at the bottom of Powell's intention not to sign a contract,
but she also, unlike her daughter, added that Powell also
said that he did not intend "to have a union." On the
other hand, Ida Harper placed some emphasis on Powell
and her mother discussing "the Office of Local 423 and .
the negotiations coming up" as an introduction to
Powell's revealing comments about the Cobbs, but Mrs
White seemed to say that the statement was precipitated
by a discussion of the quality of the Cobb sisters' work
and that there was no discussion about the terms of the
new contract or about "seniority proposals." I credit
Powell's denials, and I find that the conversations with
him in Portland, Oregon, did not have the content that
General Counsel's witnesses recalled that they had
As bearing on Respondent's motives, Mrs. White also
testified that on the first day of picketing, acting Business
Manager Scales spoke to the pickets and told them there
would not be another bargaining meeting for a month
because Powell had gone to Florida Approximately a
week later, International Representative Calloway, who
had assisted Powell during the trusteeship, telephoned
White at her home and asked her if she intended to return
to work as two other office workers had done, Calloway
argued that it did not make sense for her to be striking
over seniority when she had the least seniority in the
office.
White also testified that Wilson, one of the Local's
business representatives, spoke to her as he passed the
picket line on his way into the office in December and
told her that Powell would be in Columbus on the 15th of
the month, but would leave on the seventeenth. He also
said that the way the Employer was "beating" the Union
was by not having bargaining meetings and that the
employees should give up their "nonsense" of picketing
because Powell was "too big" to beat
White's testimony about what Scales, Calloway and
Wilson said during the strike is uncontradicted, and I
credit it
B Analysis, Additional Findings and Conclusions
Regarding the Refusal to Bargain
General Counsel describes the circumstances in this
case as "admittedly unusual" and his theory "unique" and
concludes that disposition of the issues turns in large part
on credibility issues I agree. He also states that the
question of Respondents' motive is vital to explain that its
course of conduct was designed to achieve a
predetermined decision, and with this no one can quarrel.
I also feel, however, that if the theory of this case is that
Respondents entered into bargaining precommited to a
course of conduct that was designed to eventually enable
the Respondents to dispose of the Cobb sisters and hence
abort the results of the arbritration award, there ought to
be some substantial showing of hostility toward the Cobbs
evident, and Respondents' course of conduct in bargaining
ought to be more than equivocal and suspicious to support
a finding that such a long range aim was to be reached in
such a devious and complicated way
Trustee Powell, International Vice President Powell, the
Local in trusteeship, or its acting officers must first of all
be shown to have some hostility to the Cobb sisters and,
second, this hostility must relate, it seems to me, to some
protected activity in which they engaged or be bottomed
on some other invidious consideration Although the
totality of an employer's conduct may establish improper
motivation even if the acts which make up the total are
relatively unimportant in themselves, here, in my opinion,
the incidents which General Counsel argues reveal illegal
motivation are not only relatively minor but so equivocal
that they cannot establish that Respondents from the very
beginning never intended to sign an agreement because
they wanted to be free to dispose of the Cobb sisters
because they had gotten themselves reinstated through
arbitration under the old labor agreement
General Counsel relies heavily on Powell's alleged
admission to Mrs. White about what he had in mind for
the Cobbs, but I have found that he did not state that he
would never sign a contract in order to get rid of them I
also find that statements by certain business agents or
assistant business agents, or even International
Representative Calloway, to pickets or strikers during the
strike urging them to return to work or indicating that
their cause was lost cannot supply a foundation for
General Counsel's theory None of the remarks is alleged
as an independent violation of the Act None of the
remarks relates directly to seniority as a device to
eliminate the Cobbs and none of the remarks mentions the
Cobbs at all Business agents do not immediately
supervise office workers, indeed the Local had an office
manager supervisor It also appears that Respondent met
regularly with the Union even if one business agent
suggested that Respondents' tactic to beat the employees
was to delay meetings
There are no oral or verbal admissions of anti-Cobb
animus or hostility to reveal Respondents' motive, and, in
my opinion, the Respondents' conduct generally does not
circumstantially establish the basic ingredients of the
theory. Even if Local No 423 Laborers', before, during
and after the trusteeship was the same legal entity, and
even if Local No. 423 and the International Laborers'
Union was a single employer while the negotiations and
other relevant acts in this case were occurring,' 2 it would
still be necessary to show that the principal functionaries
or executives of Local No 423, or of any one who
controlled its affairs during trusteeship and bargaining,
were motivated by the same considerations as those agents
of Local No. 423 who discharged the Cobbs before the
trusteeship was imposed To rely on a continuing entity
theory in the circumstances of this case is unrealistic,
because it is motive which is crucial, and the motive to be
sought, discovered and analysized is that of the persons
who ran Local No. 423 Laborers' during the trusteeship
and bargaining. International Vice President and Trustee
Powell, acting Secretary-Treasurer Rivers and acting
Business Manager Scales were the main functionaries of
Local No 423 during that period, and Powell was the
"There really isn't any question that Respondent Laborers ' International
and Respondent Laborers ' Local No 423 were a joint employer during the
trusteeship , for Powell completely controlled the Local during that period
However , trusteeship was removed on May 8, 1968 , and I find on the
uncontradicted testimony that the Local controlled its own affairs after
that
LOCAL NO. 423, LABORERS 565
most important of them all on this record " Realistically,
therefore, it must be established by a preponderance of the
evidence that Powell's true motive in bargaining was to
ultimately replace the Cobb sisters. I find that
Respondents' course of conduct does not show that
Respondents, Powell, or any other policy making official
or executive of Respondents, were so motivated during
collective-bargaining negotiations
First of all, Powell testified that he had no hostility to
the Cobb sisters, their father, Marshall Cobb, or their
brother, who also is employed by the Local Laborers', and
he gave certain reasons why it should appear that he is
not The circumstances do not contradict or impeach his
declarations and in some cases support them Marshall
Cobb, who ran the Local for 20 years or more, was
unseated in some sort of a political uprising, and his
daughters, the only office employees employed by the
Local, were fired by the persons who ousted him This
was before trusteeship was imposed and before Powell had
anything to do with the Local When Powell became
trustee in September 1966, however, he fired Morrison
and Jennings, the leaders in the anti-Cobb movement and
the persons who fired the Cobb sisters If, as agreed by all
at the hearing, the Cobbs had been improperly and
unfairly fired by Morrison, and Powell fired Morrison, it
would seem that Powell's attitude toward the wrongdoers
and the victims was a least presumptively correct I find in
these circumstances powerful evidence that it was.'
As indicated, other circumstances, singly or together,
are not clear enough to reveal that Powell's aim was
ultimate elimination of the Cobbs When the International
Laborers' placed the Local in trusteeship the Cobbs had
already been discharged and had filed grievances, but
arbitration had not been scheduled. When Powell became
trustee he learned that the cases were going to arbitration,
and he admitted that he had authority to call off the
hearing and reinstate the employees He did not, and he
also permitted Calloway, an International Laborers'
representative, as well as lesser Local agents, to testify at
the arbitration In addition, after the arbitrator made his
award, Powell delayed reinstating the Cobbs for 3 months,
and retained an attorney to represent the Local Laborers'
in the cases. General Counsel argues that these
circumstances impeach Powell's stated reasons for acting
as he did and demonstrate that he really was trying to get
rid of the Cobbs
I find that the circumstances described in connection
with the Respondents' actions regarding arbitration and
the arbitrator's award are not so odd or unreasonable as
to overcome Powell's explanation for them Powell's
explanation that the discharges were part of the political
turmoil which he had inherited and that those who had
been instrumental in the discharges should have to defend
them in arbitration is not unreasonable, and neither is his
conduct of permitting Calloway to testify to factual
matters involving records only Powell said that the
International, with legal advice, had decided that it should
remain "neutral" in the arbitration cases, and I see
nothing in his acts of permitting the cases to go ahead or
letting certain persons testify at the hearing to convert this
"Unless someone in the International was guiding Powell ' s hand, but
there is not even a suggestion in this record that such was the case
"I think it is relatively unimportant that Powell kept certain business
agents on probationary appointments when he took over Business agents
function primarily in the field, and the Local had to continue functioning
Even if this indicated that Powell was not politically against all Local
functionaries , it would not fairly indicate that they had anything to do with
the Cobbs' discharge or that he endorsed or approved their actions
asserted "neutrality" into something else Similarly, with
respect to the delay in reinstatement, there was delay, but
there was also reinstatement and full backpay In
addition, the Cobbs worked without incident until the
strike, and one of them, Mrs Holland, who returned to
work during the strike, is still employed Hiring an
attorney to settle important litigation cannot overcome
these facts or Powell's uncontradicted testimony that he
wanted to be present in Columbus, Ohio, when the Cobbs
were actually reinstated to prevent any unpleasant
incidents because he had information that a certain faction
in the Local resented the Cobbs and might resist their
reinstatement
There remains for consideration Respondents' conduct
at the bargaining table for whatever light it may throw on
Respondents' state of mind. Preliminarily, two things
must be kept in mind in this analysis In effect, all parties
agree that the issue that kept the parties from reaching
agreement was seniority, and it also seems to be conceded
that, apart from seniority, Respondents conduct was
unassailable and that all economic issues were "resolved
between the parties so exemplary was the nature of
bargaining."15 But this agreement on all other issues after
"give-and-take, offer and acceptance or refection,
modification to proposals, counterproposals" having "all
the earmarks of true good faith bargaining."'° was really
the conduct of a sophisticated bargainer that did not want
its closed mind and predetermination on the seniority
issue to appear obvious, according to General Counsel.
Again we are on a search for a concealed motive based on
conduct "exemplary" on its face in many respects, but
because of these concessions, which are well supported by
the record, it will be unnecessary to review in any detail
anything other than the discussions regarding the seniority
issue during bargaining
There were six bargaining sessions before the strike on
November 16 Respondent would agree to no form of
seniority during these meetings or make any
counterproposals on it, and if it just sat still during the
sessions while seniority was being proposed, or merely
said "no," because the Laborers' International had no
seniority clauses in its agreements, as one witness testified,
then this might indicate bad faith, but that is not what
happened or all that happened before the strike. There
was more discussion of seniority, as I have suggested
earlier, than Lewis, president of the Charging Party, first
recalled Powell, for example told Lewis that in the event
of a cutback he did not want to have to keep the most
senior employee who could not do secretarial work, and
she said she explained to him at length why she wanted
such a clause and why it would not tie the employer's
hands. Job classifications, temporary help and fluctuations
in employment were discussed in connection with
seniority, and Rivers, who substituted for Powell at two
meetings, talked about seniority and its relation to an
increased staff caused by an increase in membership, and
he said that he was unwilling to take Mrs. Lewis' oral
assurances that her proposal would not handicap the
Employer in running the office efficiently The word
"flexibility" was used during the discussions, meaning, of
course, Employer freedom to select or transfer employees
without regard to years of service, and Mrs. Lewis
recalled that Powell once told her that she had a product
to sell but she had not sold it. This illustrates that the
parties knew what they were talking about, and since they
all were experienced and even sophisticated, as much
"G C br
'"Ibid
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discussion of this topic as might have been indicated in
another environment might not have been needed it also
must not be lost sight of in evaluating the Employer's
alleged taciturnity, that Lewis, too, was somewhat
unyielding The Charging Party made no change in its
seniority proposal before the strike, and insisted, in effect,
that seniority was a must because the Office Workers'
committee had a "feeling" that the Employer was trying
to get rid of Mrs Holland In addition, for what it is
worth, the Employer did not break off bargaining.
According to Powell's uncontradicted testimony, Lewis
announced "no contract, no work" at the last meeting
before the strike, and walked out with her committee after
stating that she was going to "embarrass" Powell
When the parties met after the strike there was
additional discussion of the seniority issue on which they
were deadlocked. At the meeting on or about November
22, Powell presented the Office Workers with revised
proposals, some of which were drafted to protect the
Employer's seniority position i' At the December 22
meeting, as set out earlier, the Employer took the
position, according to Sigall's credited testimony, that it
would agree to no proposal which would permit its
judgment in selecting employees for layoff to be tested in
arbitration involving a claimed violation of seniority in
addition, "flexibility" was mentioned as a consideration
by the Employer, and Sigall explained that in his view the
Employer had ample flexibility under the Union's
proposal Moreover, it appears that the Employer argued
that the Union did not need seniority, considering the way
the Employer was presently staffed, and contended that
other clauses in its proposal would give the Union the
protection it said it needed In sum and in short, I find
that the Employer did not reject the Union's seniority
proposals out of hand, but discussed them fully and stated
reasons for its position on the issue
Respondents' injection of a proposal that there be a
broad no-strike clause in the agreement after Sigall made
an offer on seniority, qualified by a clause that the
Employer's judgment shall be final if not exercised
arbitrarily, and including a proviso that claimed violations
would not be subject to the grievance procedure nor would
employees strike over claimed violations, is suspicious and
looks at first glance like a ploy to confuse the issues and
prevent agreement The parties had never had a no-strike
clause in their contracts and Sigall's proposal on its face
is as watered down as anything the Office Workers might
have been expected to take Acceptance of this proposal
would have meant agreement on an entire contract with
some sort of a seniority policy as part of it Rejection of it
completely by a Union-Employer would appear odd and
might be embarrassing, but this is conjecture, of course
On the other hand, Sigall agreed that after he made the
offer just set out he also stated that the Charging Party
reserved the right to file a law suit for breach of the
contract if it thought it was violated, even though it would
not resort to the grievance procedure He also agreed that
at some point in the afternoon session he refused to agree
to a broad no-strike clause since the Employer refused to
"Powell ' s "tightened" proposals , prepared with the aid of the
International's attorney, mentioned by General Counsel as a factor
indicating bad faith, neither add to nor subtract anything from
Respondents' position on seniority The proposals show no evidence of a
reduction in benefits already agreed to, and the elimination of the "no loss
of benefits clause" was adequately explained as a precaution to prevent a
claim of an implied agreement on seniority , although there was none, on
the ground that previous seniority was a "benefit " This issue was also
resolved later
agree to arbitration of seniority disputes, and that he
stated that if the no-strike clause were the quid pro quo
for the grievance procedure, as Schiller stated, then "the
Union would either have to strike or sue the Employer on
every grievance " It was these remarks about law
suits and strikes that bothered Powell, according to Powell
and Schiller, and caused the Employer to insist
throughout the December 22 and January 10, 1968,
meetings on a broad no-strike provision The no-strike
clause became a part of the seniority problem which had
not been resolved Although I am convinced that solution
of the seniority problem would have resolved the other, I
am not prepared to say that Schiller's and Powell's
explanation for their insistence on a no-strike clause even
when considered in connection with their refusal to agree
to any proposed seniority clause or make a
counterproposal on seniority was so unreasonable that it
clearly reveals that the Employer was concealing its real
reasons for failing to agree on a meaningful seniority
provision
Other items or acts, clearly indicative of Respondents'
desire to frustrate agreement either on seniority or the
whole contract, or both, according to the General
Counsel, are not such bright signals to the writer The
Union and the Employer had successful bargaining for 10
years without a no-strike clause and with a seniority
clause, and departure from these accepted policies shows
bad faith, it is argued. But the Employer in that period
had only a third of the membership it has now, only two
employees, both daughters of the man who ran the Local,
and no political turmoil on the horizon or in its past
Because it then felt that it could live with what it had,
does not mean that the Employer's position in changed
circumstances is other than it says it is Similarly, the
refusal of the Employer to tell the Union what kind of
seniority it might agree to is made much of, but this is not
like refusing to give a union even a vague idea of whether
any kind of a wage increase is in the cards, for the truth
may very well be that the Employer's chief negotiator
does not believe in seniority, as he stated, and did not
want a seniority clause which could possibly inhibit
administration of the office, and, if this is so, this is far
from proving that he was trying to get rid of the Cobbs
and frustrate an entire agreement to that end, rather than
just not wanting to agree that the principle of seniority
may control or affect management decisions This may
sound hard, but there is no case cited to me that holds
that you have to agree on seniority or make a
counterproposal on it, which, no matter how you look at
it, would have been tantamount to making a concession
on it.'s
There may be more in this case than meets the eye The
Cobb sisters were fired for political reasons and there was
some dragging of feet by the new regime in putting them
back to work When bargaining began, seniority became
the main stumbling block, and the Cobbs had the most of
it But on the other hand, General Counsel's theory leaves
more questions unanswered than resolved A few have
been mentioned and relied on in finding that equally valid
inferences could be drawn from various sets of
circumstances in the case The first was Powell's (the new
administration's) reinstatement of the Cobbs with a
disclaimer of any animosity towards them and the absence
of any explanation for why he should be considered to be
"Cf The New England Die Casting Company , 174 NLRB No 190, In
3 But see , Florida Machine & Foundry Company and Fleco Corporation,
174 NLRB No 170, fn 2
LOCAL NO. 423, LABORERS
part of the same faction or of the same view as those who
were involved in the Cobb cases And if Powell had
something against the Cobbs, which is not apparent, what
was it? Was it because they had engaged in concerted
activity - gone to arbitration, for example - or was it
something else9 Is it illegal for an employer to be against
arbitration of seniority disputes, providing he bargains
about it" The Employer in this case agreed on arbitration
of discharges or any other dispute that might arise under
the agreement, except perhaps disagreements hinging on
seniority If Powell was for arbitration in most areas, but
against it in the seniority section, how precisely would this
have enabled him to sever the Cobbs permanently when he
was willing to agree that discharges should be for "good
cause" only and be subject to the grievance procedure and
arbitration. There are other unanswered questions, like
why Rivers and other newly elected officials of the Local
Laborers' should be continuing to carry out the same
illegal plan that Powell devised, but finally, if the Local
No 423 administration that wrongfully discharged the
Cobbs was placed under a trusteeship and Powell was
made the trustee by the International, were the Local's
functionaries and their affairs actually subject to him or
was he their captive9 The logic of the General Counsel's
theory is that he was the latter, for the theory presupposes
no fracture in policy or administration in the affairs of the
Local Laborers' Union from 1966 to date
As stated at the beginning of this decision, the roots of
the case lie deep At the end it may be added that they
still lie deep and uncovered
I find on the basis of the whole record and for the
reasons given that General Counsel has not established by
a preponderance of the evidence that Respondents, as the
complaint alleged, entered into negotiations with a fixed
position not to accept seniority and masked and
misrepresented its true invidious reasons for its refusal to
agree to any form of seniority Respondents, therefore did
not violate Section 8(a)(5) of the Act, as alleged.
C The Alleged Discrimination Against the Strikers
All four employees in the unit struck on November 16,
but Mrs Ferguson and Mrs Holland returned to work
immediately, and Respondents continued to operate the
office with them only and the office manager for a
number of months As the construction season approached
and the work load increased, additional employees were
needed and Respondents hired Mrs Person and Mrs
Barkey in May and August 1968, respectively, thereby
restoring the unit to its original complement of four
Geraldine Cobb and Kathryn White remained on strike
during 1968, and the first request for their unconditional
reinstatement appears to have been made by Lewis in a
conversation with Rivers on January 24, 1969 On
January 27, 1969, she confirmed this request in writing,
and in a meeting with Rivers on January 31, 1969, she
567
reiterated it Miss Cobb and Mrs White have not been
reinstated, but Rivers testified credibly that they would be
reinstated when openings occurred and that Mrs Lewis
would be the first person notified of vacancies.
Miss Cobb and Mrs White have been replaced. Mrs
Holland, Mrs Ferguson, Mrs Barkey and Mrs Penson
are doing all the office work that was done by the strikers
before the strike Not every employee presently employed
is doing exactly the kind of work she did before the strike
or the same tasks as the person replaced, but basically
that is the case Penson does secretarial work for the
business manager and other business representatives as
required as well as clerical work in connection with the
hiring hall. This is essentially what Miss Cobb had been
doing before the strike." Mrs White, a striker, had been
hired before the Cobb sisters were reinstated after the
arbitration award to do some of their work In that sense,
Penson does some of the work that White did before the
strike, but it also appears that Mrs Holland, who
returned to work during the strike, now does some of the
tasks that White performed before the strike. Mrs Barkey
performs the functions that Holland did before the strike
Since the strike was not caused or prolonged by unfair
labor practices, the strikers could be permanently
replaced, as they were Respondents recognize that Mrs
White and Miss Cobb, although permanently replaced,
remain employees under the Act, and has taken the
position that it will offer them employment if additional
employees are needed or vacancies occur This is as much
as the Act requires 20 By refusing reinstatement to Miss
Cobb and Mrs. White in the circumstances, Respondents
did not violate Section 8(a)(3) of the Act as alleged in the
the complaint in Cases 9-CA-5083-1, 2.
CONCLUSIONS OF LAW
I Respondent are employers engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act
3. Respondents did not violate Section 8(a)(1), (3), and
(5) of the Act as alleged,in the consolidated complaints.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case,
I recommend that the complaints be dismissed in their
entirety
"Dispatching itself is done by business agents presently, although
apparently Miss Cobb also participated in that function at one time as well
as doing the related clerical work
S°N L R B v Fleetwood Trailer Co, 389 U S 75, The Laidlaw
Corporation, 171 N L R B No 175, C H Guenther & Son, Inc. 174
NLRB No 174