Mid-America Machinery Co.

National Labor Relations Board - Board DecisionsDec 28, 1979

246 N.L.R.B. 1176 (N.L.R.B. 1979)

DECISIONS OF NATIONAI. LABOR RELATIONS BOARD Mid-America Machinery Company and Metal and Machinery Workers Industrial Union No. 440, af- filiated with Industrial Workers of the World. Case 14 CA-1 1867 December 28., 1979 DECISION AND ORDER By CHAIRMAN FANNIN; AND MEMBHIRS JNKINS ANI) PENEIL.O On August 15. 1979, Administrative Law Judge Richard L. Denison issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions' of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the Respondent, Mid-America Machinery Company. Virden, Illinois, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order. ' We note the following inadvertent error made by Administrative ;aw Judge Denison. In sec. III of his Decision, he stated that the parties received the Board's Decision in the earlier case- Mid-America Machinen, Compan. 238 NLRB 537 in May 1978. Hlowever, the Board's Decision in the earlier case did not issue until September 27. 1978. Thus, Administrative L.aw Judge Denison must have been referring to the fact that the parties in May 1978 would have received the Administrative L.aw Judge's [)ecision in the earlier case. That Decision-of Administrative Law Judge Robert Mullin issued on April 27. 1978. We conclude that this inadvertent error of Admin- istrative Law Judge Denison does not warrant or lead to an) modification of' his ultimate findings and conclusions. DECISION SIAI I1MN'I oUF 111: CASE Ri(lARI) I.. DI)INISON, Administrative .aw Judge: This case was heard in Carlinville, Illinois. on January 10. 1979. based on a charge filed by Metal and Machinery Workers Industrial Union No. 440, affiliated with Industrial Work- ers of the World. on September 28. 1978.' The complaint. All dates are in 1978 unless otherwise specified. issued on November 14, alleges that following the Board's Decision in Mid-America Machinerv ('ompan v. 238 NLRB 537. in which the Respondent Company was found to have violated Section 8(a)( I), (3), and (5) of the National Labor Relations Act, as amended, and ordered to bargain with the Charging Party, Respondent failed and retfused to reinstate employee Robert Swaggerty on or about September 8. fol- lowing an unconditional offer to return to work from a strike protesting Respondent's unfair labor practices in con- tinuing to refuse to recognize and bargain with the Union as ordered by the Board. Respondent's answer denies the allegations of unfair la- bor practices alleged in the complaint. Upon the entire record in the case, including my consid- eration of the briefs and observation of the witnesses, I make the following: FINI)IN(;S () FA(I I. JRISDI(TIO()N As alleged in the complaint and admitted in the answer. I find that. at all times material herein, Respondent is and has been an Illinois corporation whose sole office and place of business is located in Virden, Illinois, where Respondent engages in the business of the nonretail repair, sale, and distribution of used construction machinery and parts. Dur- ing the calendar year ending October 31, a representative period. Respondent, in the course and conduct of its busi- ness operations, repaired, sold, and distributed from its shop in Virden, products valued in excess of $50.000 which were shipped directly to points outside the State of Illinois. I find that Respondent is an employer engaged in com- merce within the meaning of Section 2(2). (6). and (7) of the Act. II. I AllOR ()R(iANIZATIO()N Metal and Machinery Workers Industrial Union No. 440. affiliated with Industrial Workers of the World. hereaf- ter referred to as the Union or the Charging Party. is a labor organization within the meaning of Section 2(5) of the Act. ii. 111 UNFAIR AB()R PRA(II('ES This case arises from a union organizational drive which began among Respondent's employees in mid-July 1977. and was the subject of a previous unfair labor practice pro- ceeding wherein the Board found that Respondent violated Section 8(a)( I). (3), and (5) of the Act and ordered Respon- dent to recognize and. upon request. to bargain collectively with the Union. Among the various discriminatees the Board ordered to be made whole were James D'Aunoy. who wlas discharged and ordered reinstated, and Robert Swaggert., who was awarded backpay as compensation for a temporary layoff. The facts relating to the instant matter before me are, for the most part. undisputed. The parties received the Board's I)ecision in Mid-America Machinery (Comnpan. 238 NLRB ' Respondent's motion to correct the transcript is granted. 246 NI.RB No. 153 1176 MID-AMERICA MACHINERY COMPANY 537, in May. On Sunday, June 4, Respondent's manager, Larry Jabusch, who testified in the earlier case, received an unexpected visit at his home from Dean Noland. a member of the Union's executive board, and Richard DeVries, a member of the Union's organizing committee. The two union officials referred to the Board's Decision, and re- quested that Jabusch recognize and bargain with them as ordered. Jabusch responded by referring them to his attor- ney, James P. Baker, and asked them to leave. On June I Jabusch received a telegram from the Union giving notice that the Union would be "conducting informational picket- ing . . . because of continued unfair labor practices." The strike began on Monday, June 12. At that time DeVries conferred with Jabusch at the Company's office, and stated that a strike could be averted by recognizing the Union. DeVries said that the pickets would be there for a long period, and Jabusch reminded him of the restrictions placed upon the Union during an earlier strike in 1977. Picketing began on June 12. Among the participants were Robert Swaggerty, the only union activist remaining in the plant and the only employee union leader still ac- tively employed, and James D'Aunoy, as yet not reinstated. Among the picket signs utilized were signs stating "On strike-Negotiate Now Mid-America." A few days there- after Jabusch received a letter dated June 19 from Michael J. Hargis, the Union's general secretary and treasurer, stat- ing, in relevant part, that the Union had been striking since June 12 over the unfair labor practices of the Company "settled" by the Board's Decision, and that the strike was fully sanctioned by the International Union. Also on June 19, Respondent's attorney, James P. Baker, met with Rob- ert Swaggerty and Patrick Murphian of the Union at a res- taurant in Springfield.' On September 8 Robert Swaggerty left a signed and dated note, in evidence, with Jabusch's secretary, Nancy Cole, at Respondent's office. In the note Swaggerty offered to return to work "without conditions or stipulations." Jabusch read the document upon his return to his office that evening. Since Jabusch did not respond over the weekend to his offer, Swaggerty returned to the Company's office on the afternoon of Monday, September II, and talked with Jabusch. Swaggerty asked, "Larry, I wanted to see if I could have my job back." Jabusch re- minded Swaggerty that at the outset of the strike DeVries had come in and said it was going to go on indefinitely, and that he had no need for labor. Jabusch said he had hired another laborer and did not have another opening. Swag- gerty answered, "Fine. Thanks, I hope we can always re- main friends." Then he left.4 3 The date of this meeting is the only significant fact in dispute in this case. Robert Swaggerty's testimony, unsupported by records, placed the date of the meeting at approximately I or 2 weeks before the commencement of the strike. Attorney James P. Baker testified that the meeting took place on June 19, and offered to prove the accuracy of the date by the post-hearing produc- tion of his office time records, which were not physically present at the heanng. I am persuaded that June 19 was the actual date, but in so finding I draw no adverse conclusions concerning the otherwise credible testimony of Robert Swaggerty. 4 Jabusch and Foreman Fred Schroeder testified that Swaggert) appeared for this interriew in an intoxicated condition, staggering and smelling of alcohol. Schroeder describes Swaggerty as "stoned," and slurring his speech. Swaggerty candidly testified that he could not remember but did not dens Other than Jabusch's brief observation during the course of their conversation on September II. Respondent made no response whatsoever to Swaggerty's offer which I find to have been clearly an unconditional offer to return to work. I also find on the basis of the clear and undisputed evidence summarized above that the strike which began on June 12 was, from its beginning. a strike caused by Respondent's failure and refusal to remedy the unfair labor practices found to have occurred by the Board in Mid-America Mlu- chinery Compaun, supra. As such, it is an unfair labor prac- tice strike, and under the law Robert Swaggerty is entitled to the rights accorded unfair labor practice strikers by the law. including immediate and full reinstatement, unless Re- spondent's failure and refusal to comply is excused by a meritorious affirmative defense. Jabusch testified that in addition to the remark he made to Swaggerty during their September II conversation "there were a number of other contributing factors" con- cerning his reason for not reinstating Swaggerty. There were "his attitude, his conduct on the picket line, and the comments that he made in the shop about me and about the Company before the strike went on, as well as the fact that we didn't have an opening at the time." No evidence was presented concerning Swaggerty's "attitude." 5 Also, there is no evidence concerning comments made about Ja- busch before the strike, and Jabusch admitted that any in- formation he possessed in this area was based on hearsay. Thus. in the final analysis. Respondent's defense condenses to the contention that Swaggerty engaged in strike miscon- duct. There are four incidents upon which this contention is based: () Swaggerty was intoxicated on September II at the time he orally requested reinstatement, (2) Swaggert) was among a group of pickets who "blocked" trucks at the entrances to company premises, (3) Swaggerty was among those who engaged in target practice with a slingshot adja- cent to one of the Company's facilities which was being picketed. and (4) Swaggerty threatened a company em- ployee on the picket line and the boss of the construction crew at the jobsite of Respondent's new plant, which was also being picketed. There is clearly no merit to Respondent's contention in- sofar as it reT'rs to Swaggerty's intoxicated condition on September I 1. Although one might observe that attempting to discuss a matter of serious concern with his employer in such a state did not demonstrate sound judgment. there is no evidence that Swaggerty either engaged in misconduct or did anything to revoke or otherwise cloud his original written and clear unconditional offer. To the contrary, Ja- busch's account of the interview demonstrates that Swag- gerty was courteous and simply renewed his original offer. During the period of the strike Respondent had three locations in Virden. The first, described as the "old site." consisted of Respondent's trailer office on the south edge of the town. Directly across the street from this facility was Respondent's shop, which occupied the rear portion of the making a visit to the company offices. He conceded that earlier that da he had had a few beers with a friend In Springfield. after conducting his busl- ness at the state unemploment agency where he signed up foIr unemploy- ment compensation I However. a significant reference to Swaggerts's attitude hby Jabusch is set forth and discussed in Mid-.4merica. supra at 542. 1177 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fiesta Restaurant. One-half mile to the south on Route 4 was the construction jobsite for the Company's new facility. All three locations were picketed during the strike. On the morning of June 13 Respondent planned to move some equipment from the Fiesta shop to its new facility. Respon- dent had employed Cemco to do the job. There is no evi- dence that the Cemco truck, driven by Cemco employee Ivan Stanley, had any difficulty entering upon its arrival at the Fiesta shop. When the machinery was loaded on the truck Respondent's foreman, Fred Schroeder, assigned an unidentified Mid-America employee to ride with Stanley in the cab. Respondent's dump truck, driven by Mid-America employees, was to follow. As the Cemco Truck started to leave and approached the exit of the Fiesta premises, a group of pickets headed by DeVries engaged Stanley in a conversation at the entrance. When Schroeder noticed that the truck was not proceeding farther he asked Stanley what had happened, and Stanley replied that the pickets had told him he could not take the truck outside, since there was a strike and the Teamsters were not supposed to cross the picket lines. After Schroeder assured Stanley that he had cleared the matter with the Teamsters in Springfield, Stan- ley still was not satisfied and attempted to reach his em- ployer on the truck radio. These efforts were unsuccessful, but after further assurances by Schroeder that the matter had been cleared with the Teamsters, Stanley and the dump truck left the premises without incident. At the entrance to the new site the truck was greeted by another group of about seven pickets including DeVries and Robert Swag- gerty. There is no direct evidence concerning what the pick- ets said to driver Stanley. However, it is clear that Stanley was reluctant to cross the picket line and reported to Schroeder, when he arrived on the scene, that they would not let him in. Schroeder answered, "Ivan, I don't see how they can stop you. All you've got to do is pull in. You've got the right to do so. It is our property, and you've got permis- sion to pull in there and unload the equipment." Stanley said that he did not want to lose his job. After Schroeder assured Stanley that he would not lose his job because his employer had already cleared the matter with the Team- sters, Stanley still was not satisfied because he could not reach his employer on the radio. Only after Schroeder went back to town and obtained reconfirmation of the clearance from Stanley's boss did Stanley agree to enter the new site. Schroeder returned to the office. Shortly after Schroeder left Stanley changed his mind, and drove the truck back to the Fiesta shop without unloading. There is no evidence that the pickets interfered with his reentrance to the Fiesta premises. Later that morning, with a police escort, the truck returned to the new site, entered past a group of pickets without incident, and unloaded. Re- spondent contends that this evidence shows that pickets, including Robert Swaggerty, "blocked" the truck and pre- vented it from entering, and thus Swaggerty engaged in strike misconduct. I find that this contention is not sup- ported by the evidence. Swaggerty denied blocking en- trances to Respondent's premises. In my view, the evidence supports his denial. The record establishes that driver Stan- ley's statement to Schroeder that the pickets "would not let him in" stems directly from Stanley's concern that any crossing of the picket lines might not have been cleared either with the Teamsters or his employer, and conse- quently might cost him his job. This conclusion is rein- forced by that portion of Schroeder's remarks to Stanley to the effect that all he had to do was pull in, and the fact that each time Stanley crossed the picket lines without difficulty. There is no evidence of any physical blocking of the truck by either Swaggerty or any of the pickets with him. I find that Respondent has failed to prove any strike misconduct by Robert Swaggerty with respect to this incident. No evi- dence was presented concerning any other such incidents. It is undisputed that on another occasion, concerning which no date was established, Swaggerty and other un- identified pickets entertained themselves during picketing at Respondent's Fiesta facility by engaging in target practice with a slingshot while standing about 50 feet south of the Fiesta shop. Swaggerty and the other pickets were firing rocks at some cans in an adjacent field. At no time did Swaggerty or any of the other pickets fire any missiles or point the slingshot in the direction of the plant. Based on this undisputed evidence I find that Robert Swaggerty did not engage in strike misconduct with respect to this inci- dent. Donald R. Caudle, employed by Respondent as a "learner mechanic" for 3 years, testified that, while driving a forklift truck across the street to the Fiesta shop one day, Swaggerty, who was picketing, yelled that he would see Caudle in jail next. Further testimony by Caudle revealed that Swaggerty's remark obviously stemmed from the fact that Caudle had lost his driver's license for a year and spent a night in jail after being convicted for driving while under the influence of alcohol. Caudle and Swaggerty are friends. I find, under the circumstances presented, that Swaggerty's remark constitutes only innocuous banter of the type in which employees normally engage, and not strike miscon- duct. Moreover, the record discloses that this incident could not have been part of Respondent's considerations in refus- ing to reinstate Swaggerty, since Caudle first reported the incident to Respondent only 2 or 3 months before the hear- ing in this case. Eugene Miller worked for Mayco Construction Company on thejobsite of Mid-America's new facility. One day while the picketing was in progress he had conversation with Robert Swaggerty, as Miller and some members of the con- struction crew were coming onto the jobsite. Although Miller could not pinpoint the date, he stated that the inci- dent occurred early in the strike. As Swaggerty cleaned his fingernails with his knife, he told Miller that they would appreciate it if the men did not go into work, and honored the picket lines. Miller answered that they were going to go in and go to work regardless, whereupon Swaggerty an- swered that they were cleared to cross the line and go to work. Swaggerty added that they would probably be better off if they did not go in. Miller and his men then entered the site and worked without incident. There is no evidence that the pickets ever made any effort to stop the Mayco employ- ees from working. Miller testified that he first reported this incident to Company Attorney James Baker at the Macou- pin County Courthouse in September, immediately before the last state court proceeding concerning the dispute be- tween Respondent and the Union. Since there is no evi- dence that Swaggerty or any group of pickets including 1178 MID-AMERICA MACHINERY COMPANY Swaggerty ever physically attempted to deter Miller's crew from entering the jobsite and since the conversation in question is at most ambiguous, particularly in view of Swaggerty's statement that the construction crew was cleared to cross the line, I find that Swaggerty's involve- ment in the incident does not constitute strike misconduct. Since I have found that none of the incidents offered by Respondent in support of its affirmative defense with re- spect to Swaggerty constitutes strike misconduct which would excuse Respondent's failure and refusal to reinstate him as an unfair labor practice striker following his uncon- ditional offer to return to work, I find, in accordance with established Board precedent, that Respondent violated Sec- tion 8(a)(1) and (3) of the Act by failing and refusing to reinstate Robert Swaggerty pursuant to his unconditional offer.6 CONCLUSIONS OF LAW I. Respondent is an employer engaged in commerce within the meaning of Section 2(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. The strike of Respondent's employees which began on June 12 was caused by the unfair labor practices of Respon- dent and is and has been at all times since that date an unfair labor practice strike. 4. By failing and refusing to reinstate unfair labor prac- tice striker Robert Swaggerty pursuant to his September 8 unconditional offer to return to work, Respondent violated Section 8(a)(1) and (3) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to order that Re- spondent cease and desist therefrom and take certain affir- mative action designed to effectuate the policies of the Act. Respondent having discriminatorily failed and refused to reinstate unfair labor practice striker Robert Swaggerty. I find it necessary to order that Respondent offer him imme- diate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, discharging, if necessary, any replacements in order to provide work for him. I shall also order that Respondent pay him backpay computed on a quarterly basis, plus interest as prescribed in F. W. Wool- worth Company, 90 NLRB 289 (1950), and Florida Steel I In the alternative I would find that, even if any of the incidents offered by Respondent in support of its contention were found to constitute strike misconduct, none of said incidents constituted misconduct of a degree which would warrant barring Swaggerty from reinstatement as an unfair labor practice stnker. Furthermore, I would find that Manager Larry Jabusch's reference in his testimony to Swaggerty's "attitude," as a factor in his deci- sion not to reinstate Swaggerty, considered in the context of Jabusch's testi- mony in Mid-America. supra, and his reminder that the current strike was supposed to last a long time. proves that Respondent's failure and refusal to reinstate Swaggerty was motivated in substantial part b a desire to retaliate against Swaggerty because of his union sympathies anti activities Corporation. 231 NLRB 651 (l977).W Since I find Respon- dent's unfair labor practices herein to be of a serious nature. considered in the background of the Board's previous deci- sion, I find that a broad cease-and-desist order is warranted. I shall also order Respondent to post an appropriate notice with respect to the violations of Section 8(a)(1) and (3) of the Act found to have occurred. Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERs The Respondent. Mid-America Machinery Company, Virden. Illinois, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Discriminating against employees with regard to their hire or tenure of employment, or terms and conditions of employment, because of their union activities or con- certed activities for their mutual aid or protection. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights to self-or- ganization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing. and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. except to the extent that such right 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 amended. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer Robert Swaggerty immediate and full reinstate- ment to his former or substantially equivalent position. without prejudice to his seniority' or other rights and privi- leges, dismissing, if necessary, any person hired on or after June 12, 1978, and make him whole in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying. all pay- roll records, social security payment records, timecards. personnel records, and all other records necessary to ana- lyze the amount of backpay due under the terms of this Order. (c) Post at its facility, or facilities, at Virden, Illinois. copies of the attached notice marked "Appendix."9 Copies of said notice, on forms provided by the Regional Director for Region 14. after being signed by an authorized repre- sentative of Respondent, shall be posted by Respondent im- 'See, generally. Ists Plumbing & Healing Co., 138 NLRB 716 (1962) E In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, and recommended Order herein shall. as provided in Sec. 102.48 of the Rules and Regulations, be adopted b the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 9 In the event that this Order is enforced bh a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nalonal Labor Relations Board." 1179 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are customar- ily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, and cov- ered by any other material. (d) Notify the Regional Director for Region 14, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. APPENDIX NotIICEi To EMPLOYEES POSTED BY ORDER OF TIIE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all parties had the opportunity to present their evidence, it has been decided that we violated the law, and we have been ordered to post this notice. We intend to carry out the order of the Board and abide by the following: WE WILL NOT discriminate against our employees with respect to the hire and tenure of their employ- ment, or any term or condition of their employment, because they have engaged in union activities or con- certed activities for their mutual aid or protection. WE Wll.l NOT in any other manner interfere with, restrain, or coerce employees in the exercise of the rights to self-organization, to brm, join. or assist labor organizations, to bargain collectively through represen- tatives of their own choosing, and to engage in other concerted activities for the purposes of collective bar- gaining or other mutual aid or protection, or to refrain from any and all such activities. except to the extent that such right may be affected by an agreement re- quiring membership in a labor organization as a condi- tion of employment, as authorized in Section 8(a)(3) of the Act, as amended. WE Wiu.1. offer Robert Swaggerty immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, dismissing, if necessary. any per- son hired on or after June 12. 1978. and WIE wii.i make him whole for any loss of earnings he may have suft: fered as a result of our discrimination against him. MID)-AlERI( A MA(IIINERY COMPANY 1180