R.C. Can Co.

National Labor Relations Board - Board Decisions

Jan 11, 1963

140 N.L.R.B. 588 (N.L.R.B. 1963)

588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations described in section I, above , have a close, intimate, and
substantial relation to trade , traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices by refusing
to bargain collectively with the Union as the exclusive representative of its employees
in an appropriate unit, I will recommend that the Respondent , upon request, bargain
collectively with the Union.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Employer is engaged in commerce and the Union is a labor organization
within the meaning of the Act.
2. All production and maintenance employees at the Respondent 's plant in
Evansville , Indiana, exclusive of office clericals , plant clericals, foremen , guards,
professional employees , and supervisors as defined in the Act, constitute a unit ap-
propriate for the purpose of collective bargaining within the meaning of Section
9(b) of the Act.
3. At all times since July 24, 1961, the Union has been the exclusive representative
for the purposes of collective bargaining within the meaning of Section 9(a) of the
Act of all the employees in the aforesaid appropriate unit.
4. By refusing to bargain in good faith with the Union , by refusing to meet and
bargain with the Union from January 17, 1962, until after March 16 , 1962, by
illegally conditioning bargaining with the Union on its renunciation of unauthorized
conduct of its members, and by refusing to bargain in good faith with the designated
representatives of the Union since July 24 , 1961 , the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8(a)(5)
of the Act.
5 By said acts the Respondent has interfered with, restrained , and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby
engaging in unfair labor practices within the meaning of Section 8 ( a)(1) of the
Act.
6. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication I
R.C. Can Company and United Steelworkers of America, AFL-
CIO. Case No. 16-C_A-1610. Janiwary 11. 1967
DECISION AND ORDER
On August 15, 1962, Trial Examiner James T. Barker issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Fanning, and Brown].
140 NLRB No. 56.
R.C. CAN COMPANY 589
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 Inter-
mediate Report and the entire record in the case, including the excep-
tions, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
ORDER
The Board adopts as its Order the Recommendations of the Trial
Examiner.2
MEMBER RODGERS, concurring :
I concur in the result.
i Interest on backpay shall be computed in the manner set forth in Isis Plumbing &
Heating Co , 138 NLRB 716
2 Insert the following paragraph in the notice immediately below the signature,
NOTE -We will notify any of the above -named employees presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act after discharge from the Armed
Forces.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed on February 1, 1962, by the United Steelworkers of America,
AFL-CIO, herein called the Union, and an amended charge filed on February 12,
1962, by said Union, the Regional Director of the National Labor Relations Board
for the Sixteenth Region , on March 13, 1962, issued a complaint against R.C. Can
Company, herein referred to as Respondent , alleging violations of Section 8(a)(1)
and (3) of the National Labor Relations Act, herein called the Act. In its duly
filed answer Respondent admitted certain allegations of the complaint but denied
commission of any unfair labor practice.
Pursuant to notice , a hearing was held before Trial Examiner James T. Barker at
Fort Worth, Texas, on April 23 and 24, 1962. All parties were represented at the
hearing and were afforded full opportunity to be heard , to introduce relevant evi-
dence, to present oral argument , and to file briefs with me. The parties waived oral
argument and thereafter the General Counsel filed a brief.
Upon consideration of the entire record and briefs of the parties , and upon my
observation of the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is and has been at all times material herein a Missouri corporation
maintaining its principal office and place of business in the city of Arlington, Texas,
where it is and has been at times pertinent continually engaged in the production and
sale of fiber cans. During the calendar year immediately preceding the hearing
herein, Respondent in the course and conduct of its business operations manufac-
tured, sold, and shipped goods and materials valued in excess of $500,000 , of which
goods and materials valued in excess of $50,000 were shipped by Respondent di-
rectly to States other than the State of Texas; and , during the same period, goods
and raw materials valued in excess of $50 ,000 were sold and shipped to Respondent
directly from States other than the State of Texas. Upon these admitted facts I find
that Respondent is engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America , AFL-CIO, is admitted by Respondent to be a
labor organization within the meaning of Section 2(5) of the Act and I so find.
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
The complaint alleges, in substance, that on January 31, 1962, at 10 a.m. seven
named employees ceased work concertedly and remained on strike until 3:45 p.m. the
same afternoon; 1 that on the same day at approximately 3 p.m. afternoon shift em-
ployee Gerald Williams observed the picket line and joined the strike and remained
on strike until February 1, 1962, that seven of the named strikers applied uncondi-
tionally for reinstatement at 3:45 p.m. on January 31 and Gerald Williams similarly
applied unconditionally for reinstatement at 3 p m. on February 1; and that Re-
spondent refused until February 19 to reinstate the eight employees named in the
complaint because they had engaged in union or concerted activities.
The Respondent's contention appears to be that the employees removed them-
selves from the protection of the Act by engaging in an unprotected "wildcat" strike
in derogation of the exclusive authority they had conferred upon the Union to bar-
gain in their behalf. I comprehend Respondent's further contention to be, in sub-
stance, that, in any event, production and manning adjustments made solely to meet
the exigencies of the strike were such, in view of a sufficiency of inventory, to ren-
der unnecessary, until February 19, the service of the eight alleged discriminatees.2
Background Facts
In Respondent's Arlington, Texas, plant on January 31, 1962, were employed 47
production and maintenance employees working in the (1) refrigerated, (2) spiral
tube and can, (3) convolute, or (4) general janitor and maintenance departments.
At times pertinent, Lloyd Smith was production manager; 3 Verne Hargraves was
plant superintendent; and George Tekell and Richard Cargill were foremen. The
parties stipulated to the supervisory capacity of each.
Pursuant to a stipulation for certification upon consent election, the Union on
May 29, 1961, was certified as collective-bargaining representative of Respondent's
production and maintenance employees 4 Respondent and union representatives met
initially for purposes of collective bargaining in June 1961 and again in July. There-
after, until January 8, 1962, there appear to have been other collective-bargaining
meetings, but the record does not reflect when. At all contract negotiations the
Union had been represented by an agent of the International, there not having been
at times pertinent a local to which the employees belonged and through which they
were represented. There has been, however, at all times pertinent an employee bar-
gaining committee of three, consisting fo Milford Scott, Martin Brewer, and Paul
Huffman who have attended bargaining sessions. At an undisclosed juncture in
1961 the parties agreed to invoke the services of the Federal Mediation and Con-
ciliation Service and a commissioner of the service arranged and presided at the
bargaining meetings. One such meeting was held on January 8 when representatives
of the parties met. An additional meeting was scheduled for the next day, but
weather conditions prevented it from taking place.
Between January 8 and 30 no further negotiations took place, and as of January 30
no date for a meeting had been set. In the meantime, on January 25, a leaflet had
been prepared in the office of the International which Staff Representative Lee on
January 28 delivered to the home of employee Scott 5 The leaflet, addressed to "All
Employees-R.C. Can Co." and designated as being from the United Steelworkers
of America, urged employees to attend "a meeting at the UAW Hall in Arlington,
at 7 p m. Tuesday, January 30." In pertinent part it stated further:
We have been in negotiations with the Company since June 13, 1961, trying
to reach an agreement on a contract covering hours of work, working condi-
tions, wages, and etc.
The Company will not meet with us unless they have their well-paid attorney
with them and the result is meetings have been held only at the convenience
of the attorney.
1 The evidence establishes that eight employees joined in the walkout. However, James
Galley subsequently entered the military service and the complaint does not name him as
an alleged discriminatee
2 The Respondent made no closing argument, filed no brief, and its answer was essentially
a general denial of the allegations of the complaint
8 On March 1, 1962, Smith became plant manager and held that position at the time of
the hearing herein.
Case No 16-RC-2909 (not published In NLRB volumes).
General Counsel's Exhibit No. 3, see Appendix A.
R.C. CAN COMPANY 591
The following day, January 29, after he had clocked out for the day, Scott stood
by the plant exit and handed the leaflet, and others that he had prepared, to each
departing employee, and left a copy of the leaflet in the automobiles of night-shift
employees parked on the plant parking lot. Production Manager Smith came on to
the parking lot and entered his automobile while Scott was thus engaged, but Scott
did not deliver a leaflet to him. Scott also left a leaflet in the automobile of Fore-
man Tekell.6
On January 30, as scheduled, a union meeting was held at the UAW hall in
Arlington, Texas. Present was J. A. Lee, staff representative of the Union, whose
decision it had been to call the meeting. Lee had participated on behalf of the
Union in the initial June 1961 bargaining sessions and in subsequent negotiations
Also present were Milford Scott and Martin Brewer of the employee negotiating
committee, and employees Robert Turner, Andrew Hendley, Alva Lynch, Steve
Giva, and Marcellus Threlkeld, as well as the wives of some of them.
At the meeting Lee reported that he had encountered difficulty in scheduling
collective-bargaining meetings with the Respondent and further stated that the Union
had made many concessions in order to reach an agreement, but that "the Company
had given very little." He further stated to the employees that, in negotiating, the
parties had "worked from principles entirely" and did not have an agreement on
seniority and had had no discussions as to wages. Lee further stated that in his
opinion the "Company was not actually interested in reaching agreement."
As had been the case at previous meetings of the employees, some of the employees
present expressed a desire to strike but Lee endeavored to discourage them and ad-
vised them that "we wanted to do everything possible before we did have a walkout."
Lee recommended against the strike. No strike vote was taken 7 and no understand-
ing was reached as to a future course of action to be taken.
The following morning, January 31, at 10 a.m. at the completion of the third hour
of the morning shift and when the customary 10-minute work break commenced,
eight employees walked out of the plant and met at a nearby bowling alley pursuant
to a word-of-mouth arrangement that had that morning been made. The plan of
action originated with employee Milford Scott who at approximately 9 a.m. talked
with Martin Brewer, a fellow member of the employee negotiating committee. He
enlisted Brewer's support and assistance in the plan. Brewer agreed to walk out at
10 a.m., to meet at the bowling alley, and to, in the meantime, ask other employees
to join them. Scott contacted approximately five employees in the plant asking them
to attend a "meeting" at the bowling alley at 10 a.m To some he stated the purpose
of the meeting as being "to discuss plans to get the Company to negotiate with us "
Brewer similarly contacted two employees asking them merely to attend a "meeting"
at the bowling alley.8
At 10 a m. when the customary 10-minute morning break commenced, employees
Milford Scott, Martin Brewer, Robert Turner, Marcellus Threlkeld, Alva Lynch,
Steve Giva, Andrew Hendley, and James Galley left the plant and met together at
a bowling alley, some 11/2 miles from the plant premises. They did not punch out
on the timeclock The employees made their exit from the working areas of the
plant through a corridor or passageway which led to the employee cafeteria to which
many employees normally and routinely retired to spend their l0-mintue break.
Employees customarily do not leave the plant premises during the rest period, and
when they do, they do not punch out After some of the eight employees had passed
the cafeteria entrance and were moving toward the plant exit, they passed and were
observed by Plant Superintendent Hargraves There was no exchange of conversa-
tion Employee Robert Turner was carrying his lunch box. Before leaving the
building the employees stopped while Scott returned to speak to Foreman Tekell in
the plant.9 Scott credibly testified that he told Tekell that "(w)e were holding a
meeting at the bowling alley and that we were going to try to get some pressure on
the Company to meet with us." He further remarked, in effect, that by this course
of action he would probably get Production Manager Smith's "blood pressure up."
As employee Andrew Hendley was leaving the plant he spoke to Foreman Carg.11
telling him without further explanation that he was "going to a meeting" and "would
be back after while." 10 Upon leaving the plant the employees went in three or four
automobiles to the nearby bowling alley.
u The foregoing is predicated on the credited testimony of Scott and Lee.
The credited testimony of J A Lee
s The credited testimony of Milford Scott and Martin Brewer
e A composite of the credited testimony of Milford Scott, Robert Turner, and Martin
Brewer. Tekell was foreman of the convolute and the spiral tube and can departments
10 The uncontradicted and credited testimony of Andrew Hendley.
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At .the bowling alley the eight employees sat in a booth and over coffee engaged
in an informal discussion of the alleged "stalling" tactics of Respondent in negotiating
with the Union. The January 8 bargaining session and the concellation of the
session scheduled for January 9 was discussed. The group considered the progress
or lack thereof in bargaining and:
What we should do to make the Company be with us more often, try to get
them to negotiate with us.
what we could do to get the Company, you know, to meet with us more
often, get continuous meetings and everything like that, get this contract settled."
The entire conversation lasted approximately 30 minutes and at this juncture Scott
telephoned Union Staff Representative Lee. He informed Lee that approximately
eight employees had "walked off the job" and "were holding a meeting in the bowling
alley and ... would like to have him come out." 12
Without awaiting Lee's arrival, seven of the eight employees returned to the plant
premises where they fashioned makeshift picket signs on which were printed only
the words "On Strike" and picketing commenced at approximately 11 a.m.13 Em-
ployee Lynch soon departed for his home where he secured materials from which,
upon his return to the plant 30 minutes later, were constructed additional signs of
the sandwich board variety bearing the same inscription, "On Strike." These signs
were worn by the patrolling pickets who also carried one of the original signs.
Picketed were the shipping and receiving entrance on the southwest side of the
plant, and the entrance to the parking lot from which access is gained to the separate
management and employee entrances on the southeast side of the plant. Each of
the two stations was patrolled at any given time by one pair of pickets only throughout
the picketing which lasted continuously for nearly 41/2 hours, or from 11 a.m. until
approximately 3:30 p in., the same afternoon. Each of the eight individuals who
departed the plant at 10 a m. engaged in some picketing, and except for instances
otherwise described herein or for a brief interval spent at the bowling alley for
refreshments and discussion, each remained across the road from and in close prox-
imity to the plant while not picketing.14
In the meantime, after the picketing had commenced, Staff Representative Lee,
in response to Scott's telephone call, had driven to the bowling alley. He had passed
the plant en route and had observed the picketing. Not recognizing anyone at the
bowling alley as an employee of Respondent, Lee drove to the plant arriving there
soon after 11 a in. He conversed with Milford Scott and Robert Turner in an effort
to learn what had transpired.15 In conversing with Scott, Lee expressed a "wish" that
the group "hadn't walked out" but stated to Scott that their activity was "protected"
and advised that the individuals offer themselves for work "unconditionally." 16 The
employees refused to return to work at this time.17 Lee who had decided to return
to the bowling alley further told Scott to send "the other boys . . on down" to the
bowling alley so that he could "discuss the situation with them." Lee left, accom-
panied by Robert Turner. and went to the bowling alley 18 Lee again talked briefly
with Scott, Brewer, and Galley who directly followed him to the bowling alley, but
the record does not reflect the substance of the discussion. At different times until
approximately 3:30 p in , Lee talked "the situation" over with several of the eight
strikers.19
At 2:30 p.m. Milford Scott again left the scene of the picketing and returned to
the bowling alley where he saw Staff Representative Lee and striking employee
Turner, as well as four afternoon shift employees, who were scheduled to commence
work at 3.30 p m., including Paul Huffman, a member of the employee bargaining
committee. During the 20-minute period that followed, Lee again advised the
employees to cease picketing and return to work. It was decided that the pickets
11 A composite of the credited testimony of Milford Scott , Martin Brewer, and James
Turner.
12 The credited testimony of Milford Scott.
is Andrew Headley stayed at the bowling alley until 11:45 a . m., when he returned to
the plant and picketed for approximately 15 minutes.
14 A composite of the undisputed and credited testimony of the employee witnesses.
15 The credited testimony of J. A. Lee.
11 The credited testimony of Andrew Hendley.
17 The credited testimony of Milford Scott.
18 Turner credibly testified that he picketed from 11 a.m. to 12 in., and upon leaving with
Lee did not return to the vicinity of the plant until approximately 3 p.m.
19 The foregoing is based on a composite of the credited testimony of Lee and Scott.
R.C. CAN COMPANY 593
would be withdrawn and the strikers, through a committee of three, including Scott,
Brewer, and Paul Huffman, the employee bargaining committee members, would
meet with Production Manager Smith and offer to return to work 20 Upon returning
to the plant at approximately 3.30 p in , Scott observed waiting on the roadside across
from,the plant two other afternoon shift employees who had not been present at the
bowling alley. The pickets and the employees present were informed that picketing
would cease at 3:30, and at the appointed time picketing did stop.21
At approximately 3:45 p .m., the committee consisting of Scott, Brewer, and
Huffman entered the plant and met with Production Manager Smith. Milford Scott
advised Smith that he had been selected as spokesman for the group "and that
they would like to come back to work." Smith credibly related the incident as
follows: 22
I told Milford that we would have to make an investigation and he asked
how long would this take and I stated that it would take time to complete the
investigation and that I would notify them when for them to return and Milford
asked about the second shift and Paul Huffman was in the group and I asked
Paul did he want to come back to work and he said, "Yes, sure," and I told
him to come on in and Milford asked about some of the boys' personal things
and I said I didn't see any harm in them coming and getting those.
When the employees requested permission to obtain their personal belongings, Smith
expressed surprise that they would cross their own picket line. Scott explained
that the picketing had ceased. Upon the completion of the conference, Milford
Scott reported its substance to those employees of both the day and afternoon
shifts who were waiting outside the plant.
Paul Huffman, who was scheduled to commence work at 3:30 p.m., returned
to work as did other afternoon shift employees who had remained out of the
plant After obtaining personal belongings from within the plant, the eight employees
who had picketed left the plant premises.23
The following morning, February 1, commencing at approximately 6:30 a.m.,
seven of the employees named in the complaint began assembling at the employee
entrance to the plant, and all had arrived before their scheduled worktime, which
was 7 a.m. for some and 8 a.m. for others Gerald Williams was not among
them.24 From a vantage point outside the plant entrance, they observed through
the glass entrance door that none of their timecards were in the rack where such cards
are kept. While the employees were assembled near the entrance, two employees
who had not struck entered the plant and soon thereafter Foreman Cargill came
out of the plant and spoke to the group. Milford Scott credibly described the
incident as follows:
Richard Cargill come out and told us we weren't supposed to be on the com-
pany premises, and at that time I asked him why we weren't supposed to be
on company premises unless we were fired. And he said no, we weren't fired,
we were under investigation. And he said that we couldn't be out there block-
ing the doorway or threatening them, and we told him that we weren't doing
either one of the two and that we just come to see if our timecards was there
so we could punch in and go to work. And he said, "No, your cards aren't
there," and that we were still under investigation. Someone asked how long
it would be and he said, "Your lawyer will have to contact our lawyer.
The seven employees remained until 8 a.m., and when their cards were not placed
in the rack they left the premises 25
Thereafter, on the same day, each of them executed separate letters prepared by
Staff Representative Lee of the Union , addressed to Production Manager Smith
applying unconditionally for reinstatement . 26 The letters were mailed and were
received by Respondent the following day.27 Later that day, Lee telephoned Smith
20 The credited testimony of Scott, Turner , and Lee.
31 The credited testimony of Scott.
23 The facts relating to this episode are not in dispute and the testimony of Scott and
Brewer corroborate Smith's
13 The credited testimony of Milford Scott
24 The evidence relating to his participation in the strike and a resolution of the validity
of the complaint's allegations relating to Gerald Williams is discussed below
25 A composite of the undisputed and credited testimony of employee witnesses.
20 The undisputed credited testimony of Lee and the employee witnesses
27 General Counsel's Exhibits Nos 2 ( a) through 2(h).
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and asked him if he were going to reinstate "the employees who had walked out "
Smith answered that they were "under investigation." 28
Subsequently, on February 5, at approximately 8 a.m., seven of the eight employees
in question went to the plant premises. Gerald Williams was not present. Milford
Scott and Martin Brewer entered the plant and spoke with Production Manager
Smith while the other employees waited outside. Scott informed Smith that the
employees had been advised by a representative of the Board's Regional Office to
contact him Scott told Smith that the employees were ready to return to work.
Smith, who had received and perused Scott's application for unemployment com-
pensation, asked Scott, "Is this true, that he had quit?" 29 Scott said that it was not
true. Smith informed Scott and Brewer that the employees were still under inves-
tigation. Scott and Brewer left and reported to the other employees the substance
of the conference.
By separate letters dated February 12, the eight employees named in the complaint
were advised that Respondent "would again have need of [their] services com-
mencing Monday, February 19, 1962." Pursuant to the letters, each of them
returned to work on February 19 (except Gerald Williams who returned on Feb-
ruary 20) and were reinstated without loss of benefits or seniority.30
Gerald Williams
Gerald Williams was on January 31, employed as a bag sealer on the 2-inch
refrigerated line on the second or afternoon shift, scheduled to commence work at
3.30 p in At approximately 2:45 p.m. on January 31, Williams arrived at the plant
premises. He observed the picketing and asked Milford Scott "what was going on."
Scott explained that the group had "held a meeting and decided to see how many
of the other men would stay out with us." Williams said that he was not going
to cross the picket line.31 He remained on the premises until shortly after 3 p.m.
and left The next morning he spoke with Milford Scott who informed him that
the employees who had "walked out that morning" were under investigation and
advised him to go to the plant and to see "what had happened" and if his card was
not in the rack to contact Lee. He returned to the plant that afternoon at approxi-
mately 3:30 p.m. but found that his timecard was not in the rack. He went into the
plant but not seeing any supervisory personnel spoke to an employee who informed
him that the second shift had been discontinued. Williams left the plant and
reported the incident to Staff Representative Lee by telephone. On February 5 or 6
he executed and mailed a letter which had been prepared for him by Lee in which
Williams made unconditional application for reemployment.32 Subsequently, as
above found, he received a notice to return to work on February 19. He returned
to work on February 20 and was thereafter employed as a bag sealer on the 2-inch
biscuit line until he voluntarily terminated his employment on or about March 1.33
Conclusions as to the Status of Strikers
The threshold determination essential to be made is whether, as Respondent con-
tends, the strike was unprotected; for if this issue is resolved favorably to Respond-
ent, the complaint fails and a consideration of the Respondent's other defenses would
be rendered unnecessary.
The credible evidence of record establishes that contract negotiations with
the Respondent on behalf of the Union had at all times been conducted by an
agent of the International. While a three-man employee negotiating committee
was extant and members thereof attended bargaining sessions, the evidence does not
reveal affirmatively the extent of the committee's participation in the bargaining, or
if it possessed actual authority and power to advise, modify, or delimit the bargaining
actions or decisions of the International representative. But as I comprehend the
General Counsel's case the complaint is not premised upon the existence of authority
on behalf of the bargaining committee to act separately and bind the Union, but
upon a theory that the employee strike which took place was consonant with and
28 The credited testimony of Staff Representative Lee.
20 The unemployment compensation application contains on its first page a statement, "I
quit due to a dispute over wages and contract negotiations "
30 James Galley did not return to work, having, on February 7, informed Production
Manager Smith that he was entering the military service.
a A composite of the credited testimony of Gerald Williams and Milford Scott
33 The letter stated prefatorily that Williams had reported to work on his regular shift
on February 1 but was denied employment.
11 The credited testimony of Gerald Williams.
R.C. CAN COMPANY 595
solely in support of the union bargaining efforts as carried on by the International
and not in derogation thereof.34
Employee strike action herein occurred against a background of inability on the
part of Respondent and the Union to reach agreement on terms of a collective-
bargaining agreement. In the context of rumors concerning the status of bargaining,
Union Representative Lee upon the advice of employee members of the negotiating
committee and other plant employees held the January 30 meeting to "explain to
the membership the progress or lack of progress on negotiating a contract." The
leaflet prepared in Lee's office and delivered by Lee to Scott for distribution clearly
depicts union dissatisfaction with the progress of bargaining, including the infrequency
of the meetings. Lee's statement to the employees assembled at the January 30
meeting was an amplification of the same theme.
In its inception, the walkout which occurred the following day was understood by
its participants to relate to the unsatisfactory progress of negotiations, attributable,
in the view of Lee and the striking employees, to the Respondent. Thus, in initiating
the action, Scott, chairman of the negotiating committee, envisaged a meeting "to
discuss plans to get the Company to negotiate with us" and he communicated this
purpose to Martin Brewer, a fellow member of the negotiating committee and to
other employees he contacted during the hour before the walkout. I am convinced
that those employees who were requested merely to attend "a meeting at the bowling
alley" deduced its essential purpose from their awareness of the status of bargaining
or from their attendance at the union meeting the previous night. Moreover, they
would not normally have departed the plant premises in midmorning nor have
jeopardized their employment status for a trivial purpose.
The precise course of action to be taken to carry out the walkout's objectives
crystallized during the discussion which followed at the bowling alley, and the
evidence relating to those discussions shows clearly that the employees were
motivated solely by the uniform desire to force the Company to meet more frequently
for the purposes of collective bargaining. The Board and courts have long held
employees who cease work to force correction of grievances relating to a term
or condition of employment, or, as here, to discuss settlement of collective-bargaining
negotiations are engaged in protected concerted activity. And protection extends
to employees who concertedly engage in this activity even though it is carried
on by a minority of the employee contingent.35
However, Respondent's contention that the instant walkout was unprotected
appears to rest upon the doctrine of the Draper case,36 wherein the court stated:
It is perfectly clear not only that the "wild cat" strike is a particularly harmful
and demoralizing form of industrial strife and unrest, the necessary effect of
which is to burden and obstruct commerce, but also that it is necessarily destruc-
tive of that collective bargaining which it is the purpose of the act to promote.
Even though the majority of the employees in an industry may have selected
their bargaining agent and the agent may have been recognized by the employer,
there can be no effective bargaining if small groups of employees are at liberty
to ignore the bargaining agency thus set up, take particular matters into their
own hands and deal independently with the employer. The whole purpose of
the act is to give to the employees as a whole, through action of a majority, the
right to bargain with the employer with respect to such matters as wages, hours
and conditions of work.
Minority groups must acquiesce in the action of the majority and the bargain-
ing agent they have chosen; and, just as a minority has no right to enter into
separate bargaining arrangements with the employer, so it has no right to take
independent action to interfere with the course of bargaining which is being
carried on by the duly authorized bargaining agent chosen by the majority.
The proviso to section 9 above quoted, preserving to individuals or groups
of employees the right to present grievances to the employer, negatives by nec-
is Rejected for this reason was Respondent's offer into evidence of the Union's constitu-
tion for the purpose of showing the highly centralized nature of the Union and that em-
ployee committees have no authority thereunder to bargain on behalf of or bind the
International Union.
35 See Vogue Lingerie, Inc, 123 NLRB 1009, 1011, enfd as modified in other respects
280 F 2d 224 (C.A. 3) (30 out of 200 employees).
sa N L R B v. Draper Corporation, 145 F. 2d 199 (C A 4), denying enforcement of
52 NLRB 1477
681-492-63-vol 140 39
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
essary inference the right on their part to call strikes for the purpose of in-
fluencing the bargaining being carried on by the chosen representatives of all
the employees.
In the Draper case, as in other leading court cases applying its principle, the
employee strike action found unprotected was dissident action to achieve a stated
purpose contrary to and at odds with a bargaining decision of the chosen and
exclusive employee bargaining representative.37 Except that the instant strike
was carried out in disregard of the "advice" and "wish" of Union Representative
Lee, there is a total lack of evidence herein supporting a conclusion that the strike's
purpose or effect was to derogate from the Union's bargaining status or, to cause
the Respondent to bargain separately with the strikers.
Pertinent in the instant matter is the statement of the Board in the recently
decided Sunbeam case.38
This is not a case where the designated bargaining agent has taken some
final action which is within its sole authority and the strike action of the em-
ployees is the result of dissatisfaction with their chosen bargaining representative
and is taken for the purpose, or has the effect, of bringing pressure upon their
representative to take some different action . [Footnote citation deleted ]
The group of employees who struck and picketed was not a dissident group but,
rather, gauging from the bargaining committee membership of Scott and Brewer
and the group's support of the union-called meeting on the night previous, was
one comprised of the core supporters of the Union. The avowed and expressed
purpose of the walkout and subsequent picketing was to cause Respondent through
concerted economic pressure directed against it, to modify its approach to bargaining,
which the Union had, in effect, labeled in its leaflet and in Lee's oral report on
January 30 as dilatory and lacking in good faith. Entirely absent is evidence
of employee dissatisfaction with the Union's conduct of bargaining negotiations or
of an intention to usurp its bargaining functions or status by forcing the Company
to bargain directly with the employee group. Although the employees' action was
contrary to Lee's advice, they immediately apprised Staff Representative Lee of
their action and sought his counsel. Although they refused Lee's advice to return to
work, it appears that the group was hopeful of achieving success in their original
objective by having other employees particularly from among the night shift join
the strike. This does not suggest a rejection of the collective-bargaining authority
of the Union, but rather a desire to augment it . Lee's reservation concerning the
walkout appears to relate to its tactical wisdom and not to its legality, for he
expressed the opinion that the walkout was "protected." In the circumstances, it
would stretch matters to say that the strikers were endeavoring "to take particular
matters into their own hands and deal independently with the employer." 39 Rather
than having the effect of undermining the Union in its representative bargaining
capacity, the action was designed to support and strengthen the Union's bargaining
position. That the action may have been ill-advised and ineffectual does not render
it unprotected.
The walkout came speedily to the attention of Foreman Cargill, Superintendent
Hargraves, and Production Manager Smith and its objectives ("to discuss plans to
get the Company to bargain with us") was made known in its inception to Foreman
Tekell. Accordingly, any contention that Respondent was unaware that the walkout
related to the status of the collective-bargaining negotiations is tenuous indeed.
Moreover, if Respondent harbored any doubt as to the Union's support of the strikers
it was dispelled on February 1 when Lee contacted Manager Smith seeking their
reinstatement. Further the failure to notify an employer in advance that a strike
may occur does not render the strike unprotected if it is otherwise protected acivity?°
sr See Harnischfeger Corporation v N L R B , 207 F 2d 575 (C A. 7), denying enforce-
ment of 103 NLRB 47; and Plasti-Line, Inc, et al, d/b/a Sign Fabricators v N L R B,
278 F. 2d 482 (C A. 6), denying enforcement of 123 NLRB 1471 NLRB v American
Manufacturing Company of Texas, 203 F 2d 212 (C A. 5), denying enforcement of 98
NLRB 226,
m Sunbeam Lighting Company, Inc., 136 NLRB 1248, Members Rodgers and Leedom
dissenting.
30 Cf. N.L R B v. Draper Corporation. supra, at 203
40J. A Bentley Lumber Company, 83 NLRB 803, 811, footnote 13, enfd. 180 F 2d 641
(C A. 5) ; N L.R. B. v. Cowles Publishing Company, 214 F 2d 708 (C A. 9) ; cf N L R B
v Ford Radio & Mica Corporation, 258 F . 2d 457 (CA. 2), setting aside and remanding
115 NLRB 1046.
R.C. CAN COMPANY 597
As the strike was not for an improper objective, but for the sole purpose of lending
support to the Union and strengthening its bargaining position, I conclude and find
that the conduct of the employees constituted "concerted activities for the purpose of
collective bargaining" expressly protected by Section 7 of the Act,41 and, as the
strike was economic in nature, the employees who engaged in it were entitled to
reinstatement rights accorded economic strikers.
The Refusal To Reinstate
On Friday, January 26, the 21/4-inch can line in the refrigerated department was
closed down because of a sufficiency of inventory in that size of container. The
employees thus made available for assignment were transferred on January 29 to
the 2-inch refrigerated can line on the newly resumed second or afternoon shift 42
On the day shift on January 31, when the walkout occurred, the Respondent was
operating a machine in the spiral tube and can department; one in the convolute
department; and the 2-inch can line in the refrigerated department In addition, the
2-inch refrigerated can line operated as scheduled on the afternoon shift on
January 31 Three strikers, Andrew Hendley, James Galley, and Alva Lynch, were
assigned to the 2-inch refrigerated can line on the day shift. Robert Turner worked
in the spiral tube and can department; Milford Scott and Marcellus Threlkeld worked
in the convolute department; while Martin Brewer and Steve Giva were employed
in the general and maintenance department. Gerald Williams was assigned to the
2-inch refrigerated can line on the afternoon shift
After having been apprised by Superintendent Hargraves shortly after 10 a.m.
of the identity of the strikers, and after observing the picket line that had been set up,
Production Manager Smith conferred with Superintendent Hargraves and Foreman
Cargill in order to schedule operations for the following day. The plan, which had
been completed before noon on January 31 called for cessation of the afternoon
shift scheduled for the next day and the assignment of those employees to the day
shift commencing at 7 a.m., February 1.
As the result of some reshuffling of assignments, production was carried on during
the period February 1 to 19 by the employee contingent as it was constituted when
the strike commenced, reduced by the services of the eight strikers and by James
Galley who had entered the military service. No new hires were made.
During the pertinent period, Leadman James White assumed additional duties in
the convolute department that he had not previously performed; and a personnel
department employee with previous shipping and receiving experience assisted the
employee inexperienced in these duties, who had replaced Martin Brewer. During
the same period employees assigned to the 2-inch refrigerated can line worked a
total of 6 hours overtime per employee 43 Shutdowns of the 21/4-inch can line are
not uncommon. The 2-inch refrigerated can line is seldom shut down. It has been
Respondent's practice during previous shutdowns to assign the affected employees
to other plant tasks 44
Conclusions
It is beyond dispute that the Respondent is under no obligation to rehire economic
strikers who have been replaced or whose jobs have been abolished during the strike.45
Likewise, Respondent is entitled to have its business conditions immediately after
the strike taken into consideration in connection with its obligatons to reinstate
strikers.4e
The facts reveal, however, that when at 3.45 p.m the employees abandoned the
strike and offered unconditionally to return to work, no replacements had been hired
and the arrangements that had been made for the following day's operations were
emergency and temporary in nature designed solely, as Smith concedes, to meet the
uncertainties of a strike of unknown duration. The revised work schedule was not
intended and did not have the effect of abolishing the strikers' jobs in the normal
41 See Sunbeam Lighting Company, Inc, supra
42 The second shift had not operated on January 26 or for some days prior thereto.
43 The foregoing is predicated on the credited testimony of Production Manager Smith,
as amplified , in part, by Respondent ' s Exhibits Nos 4 and 5.
44 A composite of the credited testimony of Andrew Headley, Alva Lynch, and Produc-
tion Manager Smith.
45 N L R.B. v . Mackey Radio & Telegraph Co , 304 U S 333 ; United Grinding Service,
Inc, 118 NLRB 67, 76.
4° See, e.g, N L.B B v Bell Oil & Gas Co , 98 F. 2d 405, 409 (C A 5), rehearing denied
99 F. 2d 56 (C.A. 5).
59S DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sense.47 The strike was short-lived; and the strikers' unconditional offer to return
to work was so soon made as to convincingly negative any assumption that business
conditions had been affected by the strike.
Respondent through Smith advances two explanations for not immediately
reinstating the strikers Initially, Smith contends that he desired to investigate "why
[the strikers] had walked out" and to consult with counsel who was out of the city.
Arguendo from the facts determined from the investigation Respondent could then
conclude whether the strike was unlawful or unprotected, and if there had been strike
violence or misconduct (although the record suggests the strike was carried on
without strife or overt hostility).
Of course the right of an employee, who has engaged in a lawful economic strike
and who has not been replaced, to reclaim his job-unless he forfeited the right by
strike misconduct-is well established. For an employer to deny reinstatement to
an employee who on all the aforesaid grounds qualifies for reinstatement, is to engage
in conduct violative of the Act.48 The Board and courts have held that when em-
ployees are in fact engaged in protected activities an employer's mistaken observation
or beliefs, as well as his motives in discharging or refusing to reinstate him, are
immaterial as a defense.49 Thus the reason advanced by Smith would appear to
lack validity as a defense to his refusal to reinstate the strikers in the circumstance.
But in any event, this consideration aside, I am convinced from the evidence that
Smith was aware of the strike's purpose virtually from its inception. Further, it is
noteworthy that if doubt lingered in Smith's mind concerning the objective of
the strike, he made no effort to inform himself by seeking information from the
strikers themselves, from the three-man committee who met with him at the
termination of the strike, or from representatives of the International. Rather, after
the passage of 5 days he found explanation, readily accepted, in the unemployment
compensation claim statements of the very individuals whose verbal explanation he
refrained from soliciting. Augmented by statements of some nonstriking employees
Smith rested his investigation. His conduct, in the circumstances, appears inconsistent
with a sincere effort to apprise himself of the strike's causal factors and its purpose;
and suggests a search for a pretext in which to cloak a discriminatory act.
Smith's assertion that he desired to consult with counsel is equally unconvincing.
It is doubtful that Smith remained long uninformed concerning his legal rights
or recourse for within 2 hours of the strike's commencement he had twice conferred
with counsel, the senior partner of the attorney Smith asserts he desired later to
consult.50 Thus, when the strike ceased and the strikers offered their services, I am
convinced Smith had been apprised of his essential legal rights 51 and his delay
in reinstating the strikers for the purpose of additional consultation with counsel,
who, in any event, returned to the city on February 2, while perhaps personally
desirable to him did not remove his continuing obligation to recall the strikers.
Accordingly, I find that these reasons advanced by Respondent in defense of
the complaint' s allegations lack merit, and as it has been found and concluded that
the strike was a protected concerted activity and further, as the record is devoid
of evidence even suggesting strike misconduct, it follows that the strikers were entitled
to be reinstated upon their unconditional request unless Respondent was excused
from doing so on some legally valid ground.
This ground, contends Respondent, derives from a sufficiency of inventory render-
ing the services of the strikers unnecessary until February 19 when they were rein-
stated. Obviously, this contention is without merit as a defense to Respondent's re-
fusal to give employment to the strikers on February 1 after the brief walkout of some
41/2 hours had ended, for, as has been found, Smith revised the work schedule after
47 Smith testified that upon observing the picket line he met with assistants to "work out
a schedule for the next day," and thereafter on the morning of the walkout informed
counsel that under the revised work schedule supervisors "would have to plug in on their
breaks and what-have-you and help out "
49 Smith admits he understood the employee reinstatement request to be an uncondi-
tional one and no contention is made that it was not a valid one
40 See Cusano d/b/a American Shuffleboard Co v N L R B , 190 F 2d 898, 902-903
(C.A 3), enfg 92 NLRB 1272 ; Salt River Valley Water Users' Association v N L R B ,
206 F 2d 325, 329 (C A 9), enfg. 99 NLRB 849 ; N L R B v Industrial Cotton Mills
(Division of J P Stevens Co ), 208 F 2d 87, 91-93 (C.A. 4) Cf. N L R B v Ford Radio
& Mica Corporation, 258 F 2d 457 (CA 2).
60 In this respect of Wheatland Electric Cooperative, Inc v N L R B , 208 F 2d 878,
882-883 (C A. 10)
51 Smith's testimony on cross-examination concerning the substance of his telephone
conversations with counsel on the day of the strike was evasive and unconvincing.
R.C. CAN COMPANY 59 ^Y
the strike commenced solely to maintain production in face of the strike and not
because of inventory considerations. Moreover, as late as February 5, Respondent
still advanced the "investigation" as the reason for not recalling the strikers No
mention was then made of inventory or production justifications.
Nor does it avail Respondent to contend that production levels were rendered suffi-
cient under the revised manning schedule adopted on January 31 to meet inventory
demands, thus rendering unnecessary the service of the strikers. This defense is
deficient because the legal obligation to reinstate the strikers (save Gerald Williams,
discussed separately hereinafter) had accrued before Respondent acquired experience
under its revised production scheduled; and this plea cannot relate back to excuse
an earlier dereliction. Moreover, while it is always open to Respondent to show in the
compliance stage of a proceeding, circumstances in mitigation of backpay, it is
pertinent here to observe there is nothing in this record to suggest that, had Respondent
in fulfillment of its legal obligation reinstated the strikers effective February 1, their
subsequent layoff for inventory reasons would have been imminent. Past practice
in giving employment to the employee contingent affected by the shutdown of the
21/4-inch roll line suggests otherwise. Further in having just 3 days earlier commenced
a two-shift operation of the 2-inch can line it is most unlikely that Respondent would
suddenly, in the absence of the strike, have curtailed operations. Moreover even if
some reduction in force had later taken place it is purely conjectural to assume that
the fortuities of the situation would have been such as to include each or any of
the strikers. I am persuaded and find that the emergency revision in work assign-
ments and scheduling was retained in effect after 3.45 p.m on January 31 as a
retribution against the striking employees and that the economic defense advanced
by Respondent is a mere pretext. I conclude and find moreover that Respondent
visited this retribution upon the employees because they had engaged in protected
concerted activities. I further find that Respondent's failure to reinstate the employees
herein had the natural consequence of discouraging union membership and activity
and violated Section 8(a) (3) and (1) of the Act.52
I shall accordingly recommend Respondent remedy its unfair labor practices
in the manner prescribed below, including the payment of backpay for the entire
period from February 1 to and including February 18 to each employee named in
the complaint, except Gerald Williams.
As to Gerald Williams Respondent's obligation to reinstate him did not arise until
February 7. I conclude and find that in refusing to cross the picket line pursuant to
his conversation with Scott, and by thereafter voluntarily withholding his services for
a brief period after the commencement of the afternoon shift at 3.30 pm. on
January 31, to which he was assigned, he joined the strike, and, consequently, assumed
the status of an economic striker.53
Williams made no effective unconditional request for reinstatement until on or
about February 7 when Respondent in due course of the mails received his letter.
I am unable to conclude that the committee which met with Manager Smith at the
termination of the strike possessed the authority to seek Williams' reinstatement for
he was not present when the decision to end the strike was made and he did not
specifically or tacitly authorize the committee to act for him. Neither did he later
in any way ratify the committee's blanket application 54
Nor does the futility doctrine excuse Williams from making earlier application.
True, the afternoon shift had been abolished as the result of Respondent's discrimina-
tion, but Smith had permitted afternoon shift employees who had remained out of the
plant after their shift had commenced on the day of the strike to enter the plant and
62 The Radio Officers' Union of the Commercial Telearapheis Union, AFL (Bull Steam-
ship Company) v V L R B , 347 US 17, 45 Whether the discharges be regarded as a
violation of Section 8(a) (1) or 8(a) (3), or both, it is found necessary to effectuate the
policies of the Act to order backpay for the employees named in the complaint as provided
in the section entitled "The Remedy "
G4 Clearly, Williams' status as a striker ended, if not contemporaneously with the abandon-
ment of the strike by the other strikers, at least when he indieated his intention no longer
to withhold his services by reporting to work at the plant ready to assume his duties on
the afternoon of February 1
64 See David G Leach and Doyle H Wallace d/b/a Brookville Clove Company, 114 NLRB
213, 214 , footnote 9 Williams was not mentioned by name during the reinstatement dis-
cussions with Smith Staff Representative Lee's inquiry of Manager Smith on February 1
if he were going to reinstate the "employees who walked out" did not constitute an un-
conditional request to reinstate the strikers Cf. California Cotton Cooperative Associa-
tion, Ltd , also known as Calcot Cotton Compress , 110 NLRB 1494 , 1501 , and cases cited
at footnote 11 therein.
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assume their duties. Further , Respondent had held a place on the revised day shift of
February 1 for Williams. I conclude on the facts of this case that Williams was not
warranted in assuming that his individual application for reinstatement would have
been futile . In failing to act earlier he did so at his own risk
When on February 7 Respondent received Williams' letter, I am convinced that by
the "reinstatement" terminology it incorporated and its similarity to the earlier
written reinstatement requests of the strikers , Respondent , in the circumstances that
then prevailed , was placed on notice that Williams was seeking reinstatement as a
former striker . Thus alerted , Respondent did not contact Williams nor otherwise,
so far as the record reveals, seek to inform itself of his status. Respondent was re-
quired to do more than ignore the application , and its failure thereafter until
February 19 to reinstate Williams constituted a rejection of it 55
Respondent was legally obliged after receipt of Williams ' letter to reinstate him
and its failure to do so cannot be excused on economic grounds. While the job
intended for him on the day shift on February 1 had been filled, the revised produc-
tion schedule eliminating the afternoon shift was continued in effect after the day
of the strike solely in support of Respondent 's discriminatory design. Respondent
cannot excuse its failure to reinstate Williams by invoking as a defense , a manning
scheme perpetuated in effect for discriminatory reasons . Accordingly , I find that
Respondent refused to reinstate Gerald Williams after February 7 because he joined
the January 31 strike , which I have found to have been a protected concerted ac-
tivity. Accordingly I find that Respondent thereby violated Section 8 ( a)(3) and
(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with its operations described in section I, above, have a close , intimate, and
substantial relation to trade, traffic , and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the Trial
Examiner will recommend that it cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
It has been found that the Respondent unlawfully refused to reinstate the em-
ployees listed in Appendix B on February 1, 1962, and continued to refuse to do
so until February 19, 1962. It has further been found that during the period
February 8 to 18, 1962 , inclusive , Respondent refused to reinstate employee Gerald
Williams It will therefore be recommended that the Respondent make whole Gerald
Williams and each employee listed in Appendix B for any loss of earnings they may
have suffered during the periods, as found, that they were denied reinstatement by
payment to each of them of a sum of money he would have earned as wages absent
the discrimination , less his net earnings during such period , in conformity with
Board policy set forth in F. W. Woolworth Company, 90 NLRB 289, and Crossett
Lumber Company , 8 NLRB 440. It will also be recommended that the Respondent,
upon request , make available to the Board and its agents , all payroll and other records
pertinent to the analysis of the amounts of backpay due.
Since the violations of the Act which the Respondent has committed are related
to other unfair labor practices proscribed by the Act , and the danger of their com-
mission in the future is reasonably to be anticipated from its past conduct, the pre-
ventive purposes of the Act may be thwarted unless the recommendations are co-
extensive with the threat. To effectuate the policies of the Act, therefore , it will be
recommended that the Respondent cease and desist from infringing in any manner
upon the rights guaranteed employees by the Act.
Upon the basis of the foregoing findings of fact , and upon the entire record in the
case , the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. By discriminating in regard to the tenure of employment of Gerald Williams
and the other employees listed in Appendix B thereby discouraging membership in
and activities on behalf of a labor organization , the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the
Act.
es See California Cotton Cooperative Association . Ltd, also known as Cabot Cotton
Compress , supra, at 1501
R.C. CAN COMPANY 601
2. By interfering with, restraining , and coercing employees in the exercise of
rights guaranteed by Section 7 of the Act , the Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
3. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 ( 6) and ( 7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, and upon the
entire record in the case , the Trial Examiner recommends that the Respondent R.C.
Can Company , its officers , agents, successors , and assigns , shall:
I Cease and desist from:
(a) Discouraging membership in the activities on behalf of United Steelworkers
of America , AFL-CIO, or any labor organization , by refusing to reinstate or in any
other manner discriminating in regard to hire, tenure , or any term or condition of
tmp'oyment of its employees.
(b) In any other manner interfering with, restraining , or coercing employees in
the exercise of the right to self-organization, to form labor organizations , to loin or
assist any labor organization, to bargain through representatives of their own choos-
ing, and to engage in any other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection , or to refrain from any or all such activities
2 Take the following affirmative action which the Trial Examiner finds will effec-
tuate the policies of the Act:
(a) Make whole Gerald Williams and the employees listed in the attached Ap-
pendix B, for any loss of earnings they may have suffered by reason of the discrim-
ination against them, in the manner set forth in the section above entitled "The
Remedy."
(b) Preserve and, upon request , make available to the Board or its agents , for ex-
amination and copying , all payroll records, social security payment records. time-
cards , personnel records and reports, and all other records necessary for the de-
termination of the amounts of backpay due and the right of reinstatement under
these Recommendations.
(c) Post at its plant in Arlington , Texas, copies of the attached notice marked
"Appendix C." 56 Copies of said notice , to be furnished by the Regional Director for
the Sixteenth Region , shall, after being duly signed by the Respondent, be posted by
it immediately upon receipt thereof and be maintained by it for a period of 60 con-
secutive days thereafter in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken to insure that
said notices are not altered , defaced, or covered by any other material.
(d) Notify the Regional Director for the Sixteenth Region, in writing, within
20 days from the date of the receipt of this Intermediate Report, what steps it has
taken to comply herewith 57
It is also recommended that unless within the prescribed period the Respondent
notifies the said Regional Director that it will comply with the foregoing Recom-
mendations , the National Labor Relations Board issue an order requiring compliance.
"If these Recommendations are adopted by the Board , the words "A Decision and
Order" shall be substituted for the words "A Recommendation of a Trial Examiner" in
the notice If the Board ' s Order is enforced by a decree of a United States Court of
Appeals, the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing
an Order" shall be substituted for the words "Pursuant to a Decision and Order "
67 If these Recommendations are adopted by the Board , this provision shall be modified
to read: "Notify the Regional Director for the Sixteenth Region , in writing , within 10 days
from the date of this Order , what steps the Respondent has taken to comply herewith "
APPENDIX A
TO- All employees-R C. Can Co.
FROM: United Steelworkers of America
You are urged to attend a meeting at the U . A.W. Hall in Arlington , at 7.00 P.M.,
Tuesday, January 30th.
We have been in negotiations with the company since June 13, 1961, trying to reach
an agreement on a contract covering hours of work , working conditions , wages, and
etc
The company will not meet with us unless they have their well-paid attorney with
them and the result is meetings have been held only at the convenience of the attorney.
A worker's life is valuable Everytime the clock ticks , there goes a second off his
life to make a profit for someone He is entitled to all he can get for those precious
hours . As the Bible says . "The laborer is worthy of his hire "
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To protect himself, the worker tries to get as much as possible for his life. By
himself this is difficult with employers organized. He can be broken like a stick. But
breaking a bundle of sticks is not so easy. Men are forced by circumstances to
organize. Unionism has brought about better working conditions, more leisure
for the worker to enjoy his life, reasonable pay, more job security, vacations, pen-
sions and many other benefits. It is an ignorant man who values his life cheaply, sells
it cheaply and works long weeks to make his employer rich to the extent that he
keeps himself poor.
Well-paid organized labor is good for business in any town or city. The more
the worker earns, the more he has to spend on his needs. The more he has to spend,
the better for the merchant, the farmer and everyone else.
Come to the meeting Tuesday and let us reason together.
1/25/62
UNITED STEELWORKERS OF AMERICA
APPENDIX B
Martin J. Brower Andrew Hendley Marcellus H. Threlkeld
Steve J. Giva Alva T. Lynch Robert B. Turner
Milford Scott
APPENDIX C
NOTICE TO ALL EMPLOYEES
Pursuant to a recommendation of a Trial Examiner of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National Labor Relations
Act, as amended, we hereby notify you that:
WE WILL NOT discourage membership in or activities on behalf of United
Steelworkers of America, AFL-CIO, or any other labor organization, by refusing
to reinstate or in any other manner discriminating against employees in regard
to their hire or tenure of employment or zany term or condition of employment.
WE WILL NOT in any other manner .interfere with, restrain, or coerce employees
in the exercise of the right to self-organization, to form labor organizations, to
join or assist the above-named or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to engage in any
other concerted activities for the purpose of collective bargaining or other
mutual air or protection, 'or to refrain from any or all such activities.
WE WILL make whole the following named individuals for any loss of pay
they may have suffered by reason of the discrimination against them:
Martin J. Brewer Alva J. Lynch Robert B. Turner
Steve J. Giva Milford Scott Gerald Williams
Andrew Hendley Marcellus H. Threlkeld
R.C. CAN COMPANY,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Sixth
Floor, Meacham Building, 110 West Fifth Street, Fort Worth 2, Texas, Telephone No.
Edison 5-5341, if they have any question concerning this notice or compliance with
its provisions.
International Woodworkers of America, AFL-CIO (Region 5)
and Pioneer Lumber Corporation. Case No. 6-CB-922. Janu-
ary 1/f, 1963
DECISION AND ORDER
On August 9, 1962, Trial Examiner Sidney Sherman issued his
Intermediate Report in the above-entitled proceeding, finding that
140 NLRB No. 61.