R.C. Can Co.

National Labor Relations Board - Board Decisions

Aug 26, 1963

144 N.L.R.B. 210 (N.L.R.B. 1963)

210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions. If the foundation is deemed to be skills and/or functions
within an administrative unit, there are still employees in this so-
called appropriate unit who do not belong because of their diverse
skills and functions.
As the unit found appropriate cannot be supported on any rota-
tional basis, I dissent from my colleagues' refusal to set aside the
Regional Director's unit determination.
R.C. Can Company and United Steelworkers of America, AFL-
CIO. Case No. 16-CA-1651. August 26, 1963
DECISION AND ORDER
On March 18, 1963, Trial Examiner John P. von Rohr 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. The General Counsel also filed exceptions, a
supporting brief, and a reply brief.'
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].
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 In-
termediate Report and the entire record in the case, including the
exceptions, brief, and reply brief, and hereby adopts the findings,'
1 On April 24, 1963, the General Counsel moved for leave to file a reply brief. By letter
dated April 29, 1963, General Counsel 's motion was granted and the reply brief was re-
ferred to the Board for consideration . Thereafter, on June 5, 1963 , Respondent moved
for leave to file a response to General Counsel's reply brief . Respondent also moved to
strike part of General Counsel's reply brief . On June 10, 1963, the General Counsel filed
an opposition to Respondent 's motion for leave to file a response to General Counsel's
reply brief and the motion to strike a part thereof . By wire dated June 10, 1963, Re-
spondent 's response to General Counsel's reply brief was accepted and referred to the
Board for consideration . In addition , Respondent 's motion to strike a part of the reply
brief and General Counsel ' s opposition thereto were referred to the Board for a ruling
thereon. In essence, Respondent contends that that portion of General Counsel ' s reply
brief whereby General Counsel "objects and excepts to the Trial Examiner ' s failure to make
a specific finding . . that Respondent violated Section 8 ( a) (5)" constitutes a late excep-
tion We agree . The last day for filing exceptions was April 15. General Counsel's brief
was dated April 24. As these exceptions are clearly late, we will grant Respondent's mo-
tion to strike that portion of the reply brief relating to these belated exceptions.
2 Respondent excepted to the Trial Examiner 's reliance on Lee's testimony as to the
efforts of Lee and U S. Conciliator White to arrange further negotiating sessions after
February 26, 1962. Lee testified in great detail as to his contacts with White during this
period and as to what White reported to him. Inasmuch as Lee's testimony as to what
White told him was received in evidence without objection by Respondent's counsel, we find
no merit in this exception.
144 NLRB No. 26.
R.C. CAN COMPANY 211
conclusions, and recommendations of the Trial Examiner with the
following modifications:I
We agree with the Trial Examiner that Scott was discriminatorily
laid off on April 26, 1962, because of his union activity and for giving
testimony under the Act. However, we do not agree with the Trial
Examiner that Scott should not be reinstated because of the altercation
between himself and Plant Manager Smith.
In our opinion, Scott's expression on May 7, advanced belatedly by
Respondent as a cause for discharge, does not warrant the withhold-
ing of the customary remedy. Whenever there is a discriminatory
discharge for the foregoing reasons, the remedies of reinstatement
and backpay must be provided to effectuate the purposes of the Act,
except in those instances where the dischargee has engaged in such
aggravated and gross misconduct which renders him unfit for further
employment 4 Scott's spontaneous utterance under the extreme prov-
ocation present in this case hardly meets this test.' Moreover, it seems
clear that the incident was seized upon by Respondent long after its
occurrence as a pretext for its unlawful failure to recall him.
Having been employed by Respondent for approximately 31/2 years,
Scott had established a near perfect employment record. Plant Man-
ager Smith, himself, had highly praised Scott's work and conduct and
Plant Superintendent Hargrave concurred in this appraisal. In seek-
ing an interview with Smith on May 7, Scott, by enlisting the presence
of the other union committee members, made it clear he was acting as
chairman of the Union's grievance committee. Needless to say, Scott
was then under the stress of his discriminatory treatment by Smith
and it is also quite evident that Smith had no intention of discussing
the merits of the layoff with Scott. This is manifest by Smith's state-
ment that there was nothing to talk about and his order for Scott to
leave, purportedly because Scott used the word "hell." By peremp-
8 Members Fanning and Brown agree with the General Counsel that Respondent violated
Section 8(a) (5) when it failed to bargain with the Union over the decision to move the
21! -inch line from Arlington to Denison , Texas . These members find that the removal of
a segment of the production process involves a matter pertaining to "terms and condi-
tions of employment" and is a mandatory subject of collective bargaining concerning
which Respondent could not, with impunity , act unilaterally . See Town ci Country Mania
facturing Company, Inc , et at, 136 NLRB 1022 , enfd 316 F 2d 846 ( C.A 5) ; Fibreboard
Paper Products Corporation, 138 NLRB 550 , enfd 322 F . 2d 411 (C A D C ). However,
in the absence of any exception by the General Counsel or the Charging Party to the
failure of the Trial Examiner to recommend a return of this production line to Denison,
or any request for such remedial order, Members Fanning and Brown will not direct such
action in this case.
4 See Georgia Rug Mill, 131 NLRB 1304 , enfd in pertinent part 308 F 2d 89 ( C.A. 5) ;
Schott Metal Products Company, 128 NLRB 415; Stewart Hog Ring Company, Inc.,
131 NLRB 310.
5 N L R B . v. Thayer Company and H . N. Thayer Company , 213 F. 2d 748 ( CA. 1), cert.
denied 348 US 883 ; N.L.R B v. Local 833, International Union , United Automobile,
Aucraft and Agricultural Implement Workers of America ( Kohler Co ), 300 F 2d 699
(CA.D C.), cert denied 370 U S 911
727-083-64-vol. 144-15
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
torily ordering Scott to leave, Smith thus further provoked Scott by
making it clear that Respondent was persisting in maintaining Scott's
unlawful layoff status. Scott reacted to this additional provocation
with an utterance which was contrary to his normal behavior pattern,
but it is apparent that Smith neither resented nor took the statement
seriously. Furthermore, as Smith is no longer employed at this plant
by Respondent and as current supervisors have stated they have no ill
feeling toward Scott, reinstatement of Scott would not militate against
a harmonious plant relationship.
In these circumstances, we find that Respondent's failure to rein-
state Scott is but a continued expression of its unlawful motivation
leading to his layoff; and the incident of May 7, 1962, was a pretext
for, and in any event does not excuse, its failure to reinstate him.
Accordingly, we shall direct that Respondent reinstate Milford Scott
and make him whole for any loss of pay he may have suffered.'
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner with the following modifications :
1. Paragraph 2(b) shall be amended to read as follows :
Offer to Milford Scott immediate, full, and unconditional rein-
statement to his former or substantially equivalent position, with-
out prejudice to his seniority or other rights and privileges, and
make hull whole for any loss of earnings that he may have suffered
as a result of the discrimination against him from the date of
his discharge to the date of his reinstatement in the manner set
forth herein in the section entitled "The Remedy."
2. The Appendix attached to the Intermediate Report is modified
by amending the eighth substantive paragraph to read as follows :
WE WILL OFFER Milford Scott reinstatement to his former or
substantially equivalent position, without prejudice to his senior-
ity or other rights and privileges, and we shall make him whole
for any loss of pay suffered as a result of our discrimination
against him.
6 As, in his view , a nondiscriminatory layoff decision is not a mandatory subject of bar-
gaining, .Member Rodgers would not adopt the Trial Examiner ' s finding that Respondent
violated Section 8(a) (5) by failing to bargain with the Union concerning its April 26 lay-
off Further, Member Rodgers would find no violation with respect to either Respondent's
decision to move the 2% -inch line , or Respondent 's failure to bargain as to the effect of
that move. See his dissenting opinions in Town & Country Manufacturing Company, Inc.,
et at, supra, and Fibreboard Paper Products Corporation , supra. Member Rodgers also
disagrees with the majority' s ordering the reinstatement of Scott. In his opinion, the
record adequately demonstrates that Scott was justifiably denied reinstatement because of
his abusive conduct toward an official of management in the presence of other representa-
tives of management as well as rank -and-file employees , and that such conduct was not
"provoked" or "further provoked " by Smith , for in Scott ' s own words , " the first thing I
said . . I asked him if he had guts enough to talk to me alone "
R.C. CAN COMPANY 213
3. The Appendix attached to the Intermediate Report is modified
by amending the ninth substantive paragraph to read as follows :
WE WILL NOT in any other manner interfere with our employees'
rights as guaranteed in the Act.
4. The Appendix attached to the Intermediate Report is modified
by adding the following paragraph immediately below the signature
line :
NoTE.-We will notify the above-named employee if presently
serving in the Armed Forces of the United States of his right
to full reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed
Forces.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge and an amended charge filed on May 1 and 16, 1962, respectively,
the General Counsel for the National Labor Relations Board for the Regional
Director for the Sixteenth Region (Fort Worth, Texas ), issued a complaint on
October 19, 1962, against R.C. Can Company, herein called the Respondent or
the Company, alleging that it had engaged in certain unfair labor practices affecting
commerce within the meaning of Section 8(a)(1), (3), (4), and (5) of the Na-
tional Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Dur-
ing the hearing the General Counsel added a number of allegations to- the com-
plaint, all of which he incorporated in an undated , amended complaint which was
received in evidence as General Counsel Exhibit No I-T. The Respondent's answer,
as amended , denies the allegations of unlawful conduct alleged in the complaint,
as amended.
Pursuant to notice, a hearing was held in Fort Worth, Texas, on October 17, 18,
and 19 and November 12, 13, 14, and 15, 1962, before Trial Examiner John P.
von Rohr. All parties were represented by counsel and were afforded full op-
portunity to adduce evidence , to examine and cross-examine witnesses , and to file
briefs. Briefs were filed by the General Counsel and by the Respondent and they
have been carefully considered . Subsequent to the close of the hearing , the Re-
spondent filed a motion to correct record. The General Counsel filed a motion in
opposition in which he objected to 52 of the 163 proposed corrections. Having
reviewed the proposed corrections, I am satisfied that none of them would have
any effect upon the merits of the case or any of the matters in dispute. Accord-
ingly, the Respondent 's motion is granted.'
Upon the entire record in this case , and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
R.C. Can Company is a Missouri corporation , with plants located in various
States , where it is engaged in the manufacture and sale of fiber cans , containers,
and related products. The sole plant involved in this proceeding is its plant lo-
cated at Arlington, Texas. During its past fiscal year, the Company in the course
of its operations at the Arlington, Texas, plant produced products valued in excess
of $500,000, of which products valued in excess of $50,000 were shipped from the
Arlington plant to customers outside the State of Texas In the same period it
purchased goods and materials valued in excess of $50.000 from places outside
the State of Texas. The Respondent concedes and I find that it is engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
'The Respondent's motion and the General Counsel's motion in opposition thereto are
hereby received in evidence as Trial Examiner 's Exhibits Nos 1 and 2 , respectively
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, AFL-CIO, hereinafter referred to as the Union
or the Charging Party, is a labor organization within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The layoff of Milford Scott
1. Background
The complaint alleges that Respondent discharged and/or laid off Milford Scott
on April 26, 1962, in violation of Section 8(a)(1), (3), and (4) of the Act. The
8(a) (4) violation is predicated upon Scott's giving testimony in R.C. Can Company,
140 NLRB 588, where he appeared on April 23 and 24, 1962, as the General Coun-
sel's principal witness. The parties stipulated that the entire record in that proceed-
ing be incorporated and received in evidence in the instant case. However, the
Board decision cited above having issued in the meantime, it will suffice to sum-
marize the following Board findings which I regard as pertinent to the issue involv-
ing the alleged discrimination against Scott in this case.
The Charging Union was certified by the Board as the collective-bargaining agent
of Respondent's production and maintenance employees on May 29, 1961.2 Milford
Scott became chairman of the employee bargaining committee and remained such
until the time of his layoff on April 26, 1962.3 On January 29, Scott stood by
the plant exit just after work and passed out leaflets which, in effect, protested that
no contract had been reached since the negotiations began on June 13, 1961. On
January 31, Scott organized and led a walkout of eight employees which began at
10 a.m. and ended at 3:30 p.m. At approximately 3:45, the employee bargaining
committee entered the plant and met with Plant Manager Lloyd T. Smith. Scott
advised Smith that he had been selected as spokesman for the group and indicated
"that the striking employees would like to return to work." It is sufficient to note
here that the employees were not reinstated at this time. On February 5, Scott and
Brewer met with Smith at the plant for the second time. Scott again acted as spokes-
man and again advised Smith that the employees were ready to return to work. On
February 19, the employees who had walked out on January 31 were reinstated
without loss of benefits or seniority. While the foregoing does not purport to
detail all of the facts involved, the Board found that Respondent violated Section
8(a)(1) and (3) of the Act by failing and refusing to reinstate the striking em-
ployees upon their request to return to work. Of particular pertinence to the in-
stant case is that the findings and conclusions of the Board in the foregoing case
show that Scott unquestionably was the most militant employee to engage in union
activities at Respondent's plant and that the Respondent clearly had knowledge that
such was the fact.
2. The April 26 layoff
Four female and two male employees were laid off at Respondent's plant on
April 26, 1962. These included Mary Lowry, Joyce Ewton, Lila Mae Bracheen,
Alva Lynch, and Milford Scott. The General Counsel does not challenge the
testimony of Plant Manager Smith to the effect that a layoff of some employees
was necessitated due to the loss of a contract for 2-inch biscuit cans. Rather, it
is the General Counsel's position that some other employee should have been laid
off in Scott's stead, i.e., that the selection of Scott for layoff at this time was dis-
criminatorily motivated. As noted more fully hereinafter, Respondent contends
that Scott was laid off in accordance with its seniority policy
Scott was hired by the Respondent as a floorman on October 2, 1958. In
September 1960, Scott was given a position in Respondent's commercial department
where he learned the work of operating and setting up convolute winders .4 There-
after, and for the 21/2 years preceding his layoff on April 26, Scott was classified
as a convolute setup man. As contrasted to production work, this job principally
2 Case No. 16-RC-2909 (not published in NLRB volumes).
Unless otherwise indicated, all dates hereinafter referred to are in 1962.
' Respondent's brief, as in accord with the testimony, describes the basic structure of
the commercial department as follows : "The commercial department embraced the con-
volute winders on which fibre cans of various shapes and sizes were wound, the crimpers
which were used in affixing the metal bottoms to such fibre bodies, and two spiral winders
which were used in making spirally wound fibre bodies for cans or tubes of various diame-
ters and lengths."
R.C. CAN COMPANY 215
was that of maintenance and repair.5 Thus, Scott was responsible for the maintenance,
repair, and adjustment of 3 convolute winders, 12 crimpers, a stitching machine,
and a threader. On occasion Scott's duties also included welding and the making
of parts in the machine shops. I note here that the General Counsel in his brief
characterized Scott's work as a "highly skilled job," while Smith for the Respondent
described it as a "simple job." Without belaboring this report with all the testi-
mony on the subject, I am satisfied, and I find, that the convolute setup job in reality
was a semiskilled job. In this connection, I credit Scott's testimony that it took
him about 4 months to learn the skills which this job required.
On April 26 all employees to be affected by the layoff were called into the office
as a group about 15 minutes before quitting time (3:15 p.m.). There, and in
the presence of the negotiation committee,6 these employees were notified of their
layoff by Lloyd Smith, the plant manager, Verne Hargrave, the plant superintendent,
and Richard Cargill, assistant plant superintendent. We need have no further con-
cern about Alva Lynch and the five female production employees who were laid
off at this time for the General Counsel does not contend any discrimination as to
these employees.
On the early shift of the following day Scott' s job was taken over by Robert
Turner, an employee who had greater plant seniority than Scott.7 Turner previously
had operated one of the two spiral winding machines in the commercial depart-
ment. The other was operated by employee Paul Huffman. One of these was shut
down on April 26, thereby eliminating one of these jobs. Turner was senior to
Huffman, but Huffman had only 3 days greater seniority than Scott.
Turner was first apprised that he would be transferred from his spiral winder job
shortly after the group meeting in which the layoffs were announced. According
to Turner's unrefuted and credited testimony, Hargrave at this time called him into
his office and advised him that one of the spiral winder jobs was to be abolished
and that this would afford him the "opportunity" to transfer to the convolute setup
job because Scott was to be laid off. Turner further testified , also without con-
tradiction, that "He [Hargrave] told me that even though I had more seniority than
Paul Huffman he would appreciate it if I didn't move Huffman." Although Turner
first told Hargrave that he was not "too hot for the idea," he finally agreed to try
the convolute set-up job. After spending only 5 hours on this job, Turner told
Foreman George Tekell that he did not like the work and that he never would be
satisfied with it. When Hargrave was so advised he told Turner that he could return
to his old department and bump Huffman. Turner, however, indicated that he
would prefer to go to another department and operate the 2-inch biscuit winder.
Hargrave assented and Turner that same day went to the biscuit line where he was
permitted to bump employee Billy R. Murphy. Murphy, in turn, was assigned to
Scott's convolute setup job which Turner had just abandoned. At this point we
must digress to note that Murphy himself had just been transferred to the biscuit
line on the preceding day. Until April 26, Murphy's regular job, one which he had
held for 31/2 years, was that of spiral winder operator on the cinnamon line. It was
shortly after the general layoff announcement on April that Cargill took Murphy
aside to tell him that the cinnamon line was to be shut down and that his seniority
entitled him to bump employee James Harris, a biscuit winder operator on the 2-inch
biscuit line.8 Murphy took Harris' place on the morning of April 27. As noted,
Murphy worked on this job for but a few hours when he was replaced by Foster and
transferred to the convolute setup job. In the meantime, Harris was advised by
Cargill that he would be bumped back to floor work.9 Concerning his status after
April 26, it was Harris' unrefuted testimony that for the following several weeks he
relieved several other male production employees who were on vacation and that
he then took his own vacation. He testified that upon returning to work, "I done
several different jobs . . . I loaded out trucks , cinnamon cans, biscuit cans, and
I did floor work, clean up around the biscuit line and [relieve] label men that was
absent." Thus completes the numerous personnel moves from one job classification
to another as a result of the April 26 layoff.
6 The convolute machines were operated by female employees As occasion necessitated
Scott would fill in an relief.
9 The negotiating committee was called into the office at the time of the layoff In addi-
tion to Scott, the other members were Martin Brewer and Paul Huffman
7 Turner was hired as a floorman on August 24, 1954.
s The biscuit winder is also a type of spiral winder
0It does not appear that Harris bumped anyone out of a job
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Additional facts; conclusions as to Scott 's layoff
That Scott was competent , well qualified , and in all other respects a satisfactory
employee is not open to question . Respondent concedes this to be the fact. Re-
spondent 's sole defense to the issue of Scott 's April 26 layoff is predicated upon
the assertion that Scott was laid off in strict accordance with its seniority policy and
not for any other reason.
Respondent 's layoff policy is expressed in its brief as follows: "The force reduc-
tion was accomplished in accordance with the agreed upon procedure of laying off
employees having least seniority with due regard for qualifications ." [ Emphasis
supplied.] 10 With Respondent 's defense in mind, we turn to a further consideration
of the facts.
As has been noted, the end result of the various job maneuvering described in the
preceding section was that Billy Murphy wound up by replacing Scott on the convolute
setup job. Murphy, it will be recalled , was a production worker who for 31/2 years
had operated the spiral winder on the cinnamon line. It is undisputed that Murphy
had no experience whatsoever in convolute setup work or in any other type of
maintenance and repair work. In his job as spiral winder on April 26, Murphy's
hourly rate was $2.05. As of the same date , Scott received the hourly rate of $2.10
on his convolute setup job. Murphy testified without contradiction that upon being
assigned to the convolute job he was given "at least six weeks" training as to the
duties which this job required.il
At this point certain conclusions are in order. First , to me the incongruity of
replacing an employee engaged in maintenance and repair work with a production
employee is apparent on its face . This is particularly true where , as here, the re-
placement was inexperienced in this type of work and required a considerable amount
of training to learn the duties and skills of the new job . Secondly, the implausibility
of this action is further emphasized by the fact that the new job merited Murphy a
5-cent hourly wage increase, this nothwithstanding his lack of qualification for this
work.12 Thirdly, and equally significant , it is apparent and I find that Respondent's
action in replacing Scott with Murphy was made in patent contravention of its own
policy that layoffs be made on a seniority basis, but with due regard for qualifications.
As has been noted , the latter consideration was completely disregarded in the in-
stance under discussion.13
But Respondent 's motives become all the more suspect when, by carrying the situa-
tion one step further , it is revealed that Respondent did not accord the same con-
sideration or treatment to Scott as it did other employees when effectuating the
April 26 layoff. Thus, the evidence reflects that on April 26 the Respondent retained
in its employ four employees who had less seniority than Scott . These were Walter
Dunn , Rufus Kevil, Lloyd Holland , and Martin Brewer. Since Dunn was a supervisory
trainee I shall eliminate him from further discussion . But as to the other three,
Respondent asserts that these were retained in lieu of Scott because Scott allegedly
was not qualified to perform the work in which these employees were engaged. For
the purposes necessary to this discussion it will suffice to consider the case of Lloyd
Holland . After being first employed in July 1955, Holland quit his job in Octo-
ber 1961. He was reemployed on February 19, 1962, but at that time admittedly
lost his seniority because of his voluntary break in service . 14 Between 1955 and 1961
Holland was principally engaged in the setup , maintenance , and repair of spiral
winders. Between the time of his return to the Company in February 1962, and the
11 This is in accord with the following unrefuted testimony of Scott concerning a state-
ment of layoff policy made by Plant Manager Smith at one of the bargaining meetings:
"Lloyd Smith said that he would follow seniority , plant seniority , where there was a job
that was discontinued , the senior man could buck back in if he was gvahfied." [ Emphasis
supplied ]
11 Murphy was thus trained by Bobby Foster , an experienced maintenance employee
Additionally , the maintenance foreman, George Tekell , continued to render him assistance
when necessary.
za When first approached by Hargrave , Murphy stated that he did not want the con-
volute job. At this point, according to the unrefuted testimony of Murphy , Hargrave in-
duced him further by stating that he would be "better off" if he took it and that "it
would he more money."
la All of the discussion as concerns Murphy is equally applicable to Turner . Turner, it
will be recalled , first replaced Scott but remained on the job for only 5 hours before being
replaced by Murphy . Like Murphy , Turner was a production emplovee who had never
worked in the convolute job He also lacked any experience in maintenance and repair.
14 This was in accordance with Respondent's '.eniority poli cy.
R.C. CAN COMPANY 217
April 26 layoff, Holland was assigned to various miscellaneous work. This prin-
cipally included operation of the spiral winders, biscuit winders, and paper-slitter
machine, in addition to which he also performed some part-time maintenance work.
In arguing that Holland possessed greater skill than Scott, Respondent stresses that
Holland had 1 year's schooling as a welder. However, not only does the record show
that Scott was able to perform some welding work while in Respondent's employ, but
it appears that Holland did very little welding work during the period prior to
April 26.15 In any event, and even if it be assumed that Holland had greater general
maintenance and repair experience than Scott, the fact remains that Respondent
did not permit Scott to exercise his seniority and bump Holland even if it meant that
Scott require some additional training. As noted heretofore, the exact reverse was
true when Respondent permitted Murphy to bump Scott. In my opinion the only
explanation for this obvious disparity in the treatment of employees-as well as
the discriminatory application of its layoff-seniority policy-is that Respondent de-
sired to be rid of Scott.16 As previously noted, Scott was by far the most aggressive
union adherent among all Respondent's employees. Furthermore, his layoff on
April 26 was effected only 2 days after a Board hearing in which he gave testimony
that was decidedly adverse to the Respondent's interests. Any doubt of Respondent's
antipathy toward the union activities of its employees is dispelled when it is considered
that but a few months prior to the events herein Respondent engaged in other unfair
labor pracices which were clearly demonstrative of such antipathy. Thus, in finding
that on January 31, 1962, the Respondent discriminated against employees in violation
of Section 8 (a) (1) and (3) of the Act, the Board in the prior proceeding 17 adopted
the following finding of the Trial Examiner:
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 assignments and scheduling was retained in effect
after 3:45 p in. 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 activities. [Emphasis supplied.]
In addition, Respondent engaged in further unfair labor practices, including
threats to get rid of Scott, as hereinafter found. Accordingly, and for the reasons
cited above, I find that Respondent laid off Milford Scott on April 26, 1962, because
of his union activity and for giving testimony under the Act, thereby discriminating
against him in regard to his hire and tenure of employment, discouraging member-
ship in the Union, and committing an unfair labor practice within the meaning of
Section 8 (a) ( 1), (3),and (4) of the Act.
4. The May 7 incident ; Respondent bars Scott from further employment
The Respondent asserts that on May 7, 1962 , Scott engaged in certain conduct
which has barred him from any further employment with the Company. It is
Respondent 's position that for all practical purposes Scott was discharged at this
time.is
There is no dispute as to the facts , Scott having admitted what occurred. On the
day in question Scott drove to the plant by himself and asked to see Plant Manager
Smith When advised that Smith would see him , he requested and was granted per-
mission to be accompanied by employees Huffman and Brewer, these being the
16 Note Holland's following testimony on the subject:
Q (By Mr ECKHARDT) Do you recall any specific welding you did before April 26
while working at the R C. Can Company5 [Question repeated.]
A No, nothing big.
15 This conclusion is further buttressed by the following: Thus, it will be recalled
again that Holland lost all seniority when he quit his employment with the Respondent
in October 1961 Accordingly, Respondent's alleged seniority policy was rendered meaning-
less when it did not permit Scott to exercise his seniority to bump Holland As a matter
of fact, and as the General Counsel points out, this course of action in any event would
have been rendered unnecessary if Respondent had followed the normal industrial pro-
cedure of having Murphy (or Foster) bump into a production job rather than into the
area of maintenance and repair.
17 R C Can Company, supra
18 During the hearing Respondent asserted that but for the May 7 incident Scott would
have been recalled to the position of bag sealer or floorman on May 28.
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
members of the bargaining committee. After a few minutes wait in the outer
office, and without Scott's telling the others the purpose of this visit, all three were
ushered into Smith's office. What happened then can best be described in Scott's
own words:
And the first thing I said to Mr. Smith was, I asked him if he had guts enough
to talk to me alone. And he said he didn't have anything to talk to me about
since the lay-off. And at that time I said I thought I had a hell of a lot to talk
about. And in response he told me that I couldn't curse in his office like that
and to come on out. And at that time I went outside and waited, and Mr. Smith
stayed inside. And then I went back [in about 5 minutes] . I came back
and asked him if he didn't have enough guts to finish what he started. And he
again stated he didn't have anything to say since I had been laid off. And I
believe I stated then that it may not be that night or the next night, but I would
kick hell out of him the first chance I got.
Smith's version of the above incident was substantially the same as Scott's but he
elaborated to say that Scott prefaced his outburst upon returning to the office the
second time by stating that he wanted "everybody to hear this," including Huffman
and Brewer who were still present. Smith's testimony to this effect is credited.
The General Counsel contends that Scott's conduct on May 7 was not so serious
as to render him unfit for future employment or to constitute a bar to his reinstate-
ment. I disagree. The cases cited by the General Counsel in support of his position
are readily distinguishable on their facts. Except for actual physical assault, I can
perceive of no conduct more serious than Scott's threat of physical violence made
to the head of the Company in the presence of two employees. Indeed, since nothing
of a provocative nature occurred upon his return to the plant one might reasonably
conclude that Scott's acts and conduct on this occasion were deliberate and pre-
meditated. Granted that Scott may have been the victim of an unfair labor practice,
a lawful remedy was provided therefor under the Act. In fact such remedy already
had been elected when the Union filed a charge on his behalf on May 1. Accord-
ingly, and in view of all the foregoing, I shall recommend that Respondent not be
required to reinstate Scott.
B. Interference , restraint, and coercion
The General Counsel adduced evidence , the entire testimony concerning which is
unrefuted , of the following incidents alleged to be in violation of Section 8(a) (1) of
the Act:
1. Concerning a statement made to Scott by Foreman Charles Tibbs 19 in Novem-
ber 1961 , Scott testified : "And then at that time he stated that I'd be better off without
a union, that after the contract was signed , that the Company could take all our
privileges , our smoking privileges . Said there wouldn't be any more of that sneaking
in the cafeteria and smoking or running out in the shipping dock."
2. Foreman Tibbs was transferred to Respondent 's Dennison plant during the
month of December 1961. Scott testified that on the day of his transfer Tibbs came
up and told him, "I had better watch myself, that Lloyd Smith was out to get some-
thing on me and get rid of me."
3. Robert Turner testified concerning a conversation he had with Acting Super-
visor James White in November or December 1961, as follows : James White came
to my window . and told me that Verne Hargrave 20 had instructed him to learn
all he could about the convolute setup job. They were going to get rid of Milford
Scott." Turner 's testimony concerning this incident was corroborated by employee
Martin Brewer who was present and overheard the conversation.
4. Employee Alva Lynch testified that on about November 15, 1961, Acting
Supervisor White told him: "This damn bunch is never satisfied . Well Mr. Hargrave
wants me to learn Milford Scott's job . They are going to lay him off or do some-
thing with him."
With respect to incident ( 1), above, it is well settled that a threat to remove em-
ployee privileges in the event of employee unionization is unlawful and violates
Section 8 (a) (1) of the Act , and I so find. As to incidents (2), (3), and (4), it is
11 Although Respondent initially took the position that Tibbs was not a supervisor
within the meaning of the Act after September 1, 1962, it appears to have abandoned this
position when the evidence revealed that Respondent never notified the employees as to
any change in Tibb's status and that Tibbs, in fact, continued to exercise supervisory
functions up to the time he was transferred from the Arlington plant
20 The transcript here incorrectly refers to Hargrave's first name as James (Page 339,
line 4 ) It is hereby corrected accordingly.
R.C. CAN COMPANY 219
true that the threats against Scott did not include specific reference to his union
activities. Nonetheless, Scott was known to be the chairman of the negotiating
committee at the time such threats were made. In view of this and Respondent's
entire conduct throughout the period involved in this case, the inference is in-
escapable, as I am sure it was to the employees involved, that the threats against
Scott related to his union activities. Certainly, there is no evidence that Tibbs or
White had anything else in mind. Accordingly, I find that the statements in question
were unlawful under Section 8 (a) (1) of the Act.
C. The alleged refusal to bargain
1. Introduction
As noted at the outset of this report, the Union was certified by the Board on
May 29, 1961, as the bargaining agent of Respondent's production and maintenance
employees. Thereafter, to and including a meeting held on February 26, 1962, the
parties participated in a total of 14 bargaining sessions. The February 26 meeting
was the last time the parties met.
Preliminarily, it is pointed out that the General Counsel does not contend, nor
does the complaint allege, that the Respondent refused to bargain in good faith during
the negotiations which were conducted during the period prior to and including the
February 26 meeting. Thereafter, however, the Respondent is charged with having
engaged in various acts and conduct, all of which are alleged to constitute, indi-
vidually and collectively, a refusal to bargain within the meaning of Section 8(a) (5)
of the Act. While each of the items thus alleged are considered below, I shall begin
with those which I regard as being the most serious alleged violations of Section
8(a) (5), these being that- (1) Respondent refused to meet with the Union at reason-
able times; and (2) Respondent unilaterally granted its employees a general wage
increase in excess of its last wage offer to the Union.
2. The alleged refusal to meet at reasonable times
Notwithstanding that the parties had held 13 prior negotiating meetings, a sub-
stantial number of issues about which the parties were concerned remained unre-
solved at the time of the February 26 meeting. These included wages, strike and
lockout clauses, checkoff, work by supervisors, automatic progression for beginners,
shift differentials, and jury-funeral pay. Rather surprisingly, the matter of wages
had been left aside and it was not until the February 26 meeting that the parties made
their first wage proposals. With respect to wages, the Respondent at this meeting
proposed the following: a 10-cent hourly wage increase to all employees in the unit
to be effective March 1, 1962; thereafter, hourly wage increases of 5 cents and 6
cents to be added on March 1, 1963, and March 1, 1964, respectively; the contract
to be effective for 3 years. The Union countered with the following: a 12-cent in-
crease to be effective on March 1, 1962, and a 7-cent increase to be effective on
March 1, 1963; the contract to be effective for 2 years.
Commissioner White, a representative of the Federal Mediation and Conciliation
Service who was present at this meeting, was unsuccesful in getting the parties to
reach any wage agreement. In view of its importance to the underlying issues of the
case, I must here stress what the evidence discloses to be, and which I find was the
agreement or understanding reached at this meeting with respect to the holding of
future bargaining meetings. Thus, according to the unrefuted and credited testimony
of J. A. Lee, staff representative and the Union's chief negotiator, Karl Mueller,
Respondent's attorney and its chief negotiator, replied in response to his request for
a definite meeting date that he (Mueller) was committed up to the week of March 5,
but that he (Mueller) would communicate with Commissioner White during that
week and arrange a date with the commissioner for further negotiations. It was
with this understanding that the meeting of February 26 ended.
During the week of March 5, Commissioner White called Lee to check his under-
standing as to whether he (White) was to call Mueller or vice versa with respect to
arranging the next meeting. Lee advised White that Mueller had agreed to call
him, to which White replied, "That is the way I understood it and I wanted to check
it with you." 21 Before closing the conversation, White stated that he had not yet
heard from Mueller, but that he would call him to see if he could arrange for a
meeting.
a The credited testimony of Lee. Lee also indicated that a check of notes he had taken
at the February 26 meeting confirmed that this had been the arrangement.
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As already has been indicated, no further bargaining meetings took place between
the parties. But what happened subsequent to the above telephone conversation be-
tween Lee and Commissioner White? Concerning this the evidence is also un-
refuted. Thus, Lee testified that between February 26 and July 10, 1962, he called
Commissioner White's office at least once each week in an effort to arrange for
further bargaining meetings. The frustration of Lee's efforts is described in his
own testimony as follows:
I called Commissioner White's office, I would say at least once each week.
Sometimes I talked to Mr. White and other times I would talk to his secretary,
Mrs. Jones, to try to find out, to find out if the date had been set up, or what
was being done about getting a date set up. And I was always told that no
date had been set.
Karl was, Mr. Mueller was either out of town or was tied up on some other
case. And Mr. White said he had been having trouble even getting in touch
with Mr. Mueller. On one occasion I remember Mr. White did say that he
had talked to Harold Mueller, and Harold had told him that Mr. Karl Mueller
was due in town some certain week, I don't remember what week it was, at
which time Karl Mueller would be in touch with Commissioner White
And Mr. White said that week that I referred to, that Mr. Mueller had not
called. But Mr. White had called Karl's office, and Mr. Mueller was not in
his office. He was unable to set up a date during that period for negotiations.
While the above in itself is indicative of Respondent's uncooperative and negative
approach to its bargaining obligations, Respondent's failure in this respect is further
emphasized when it is considered in conjunction with the other unlawful conduct
herein found, including, as hereinafter pointed out, various unilateral action taken
by Respondent in derogation of its duty to bargain.
I have difficulty in perceiving Respondent's defense to the allegation under dis-
cussion. In its brief, the Respondent states only as follows:
An impasse was reached in the fourteenth contract bargaining session on
February 26, 1962. The commissioner of conciliation did not call or fix a
date for another meeting in view of the intransigence of the parties.
I would first note that the second statement in the quoted portion above is erroneous
as to fact. As I have heretofore found, the evidence establishes that White in fact
did contact Respondent's attorney but was unable to arrange a meeting due to the
latter's engagement in other affairs.22 Furthermore, it will be recalled that at the
February 26 meeting Mueller had agreed to call White during the week of March 5
for the purpose of fixing a further meeting date This he failed to do. The record
is devoid of any evidence that Mueller made any attempt to contact White until
about July 27, a matter which is discussed hereinafter and did not involve a request
for a general bargaining meeting.
Returning to the quoted portion of Respondent's brief, I also am unable to agree
that "an impasse was reached ... on February 26 " If it is Respondent's assertion
that it was justified in refusing to meet any further with the Union because an
impasse was reached at the February 26 meeting, such contention is negated by
the very fact that Respondent's attorney agreed to fix a date for further negotiations
before leaving that meeting. But in any event, the status of the negotiations at the
conclusion of this meeting are hardly indicative of an impasse. It will be recalled
that it was on February 26 that the parties for the first time made their respective
wage proposals. Certainly, it cannot be assumed that the processes of collective bar-
gaining contemplate immediate and final acceptance or rejection of the other party's
first proposal I would think this particularly true where the proposal in question
relates to such a vital matter as wages There must be some opportunity for either
party to yield from its original position or to modify its initial demands A true and
bona fide impasse exists only when it becomes apparent that further negotiations
would be futile. Such, I find, was not the case here.
I regard Lee 's testimony concerning his conversations with White admissible for two
purposes First , it is admissible as showing the steps taken by Lee to arrange for a
negotiating meeting Second, I also regard as admissible the reports which Lee received
from White as to the efforts he (White ) made to arrange a meeting with Mueller. Thus,
the credited and unrefuted testimony of Lee reveals that all parties had agreed to the
designation of White to act as the third party to arrange future meetings Since White
was vested with such authority , it is reasonable to assume that he thereby also was
authorized to make reports to either party concerning whatever actions he took in this
regard.
R.C. CAN COMPANY 221
Accordingly, and in view of all the foregoing, I find that the Respondent, by failing
and refusing to make itself available to meet and bargain with the Union during the
period subsequent to February 26, 1962, unlawfully refused to bargain within the
meaning of Section 8(a)(5) of the Act.23
3. The unilateral wage increase of July 27
On July 10, 1962, the Respondent sent a letter to the Union, signed by Plant
Manager Smith, advising of its intention to grant an hourly wage increase of 15 cents
to its production and maintenance employees to be effective on July 16. The letter
concludes as follows:
We assume that your organization will not object to the employees receiving
this increase or to the increased rates set out in the enclosed schedule. This
communication is in recognition and satisfaction of such rights as you may have
as the bargaining representative of the employees affected. Should you have
any objections to the employees receiving these increases, please let us hear
from you promptly.
We propose to make an announcement to the employees concerning the
matter on Monday, July 16, 1962, and we would be glad to report that your
organization has no objection to the Company giving these increases.
On July 11, upon receipt of the above letter, Union Representative Lee called
Smith and announced his surprise at the proposed 15-cent wage increase. In this
connection Lee credibly testified that he told Smith "That [the wage increase] is
much more than we agreed to settle the contract with you at our last negotiations
on February 26th. It is quite a bit more than you offered at our last meeting. Why
can't we get together in a meeting and settle the whole contract." The conversation
continued. Lee next proposed to meet with Smith without the presence of Respond-
ent's attorney, but Smith refused. Smith then proposed that they meet on July 13
in his attorney's office. Lee was agreeable to the date, but stated he would meet
any place other than the Attorney's office. It was finally agreed that Lee would
contact Commissioner White and let White arrange the time and place for a meeting.
It appears, however, that the date of July 13 remained tentatively agreed upon. In
the afternoon of the same day, July 11, Lee called White's office. In the absence
of White, who was out of town, Lee advised White's secretary of his conversation
with Smith, adding that although he objected to the scheduling of any meeting in
Mueller's office, he would as a last resort be agreeable to waiving this objection.
Lee was in contact with White's office on several occasions between and including
July 12 and July 16 or 18. He spoke personally to White on two occasions and
each time White advised that he was unable to contact Mr. Mueller.24 On the last
occasion, according to the credited testimony of Lee, White advised Lee that he
had left word with Mueller's office for Mueller to call him but that his calls were
never returned.
A rather puzzling aspect of the situation occurred on July 26, at which time Lee
received a call in his Dallas office from Commissioner Ted Morrow 25 asking him
why be was not present at Mueller's office in Fort Worth for a meeting with Mueller
and the company committee. Lee told Morrow that he had no knowledge of any
such meeting being scheduled. Harold E. Mueller, Karl Mueller's brother and legal
associate, testified concerning the July 26 arrangements. It was the testimony of
Harold Mueller that he called White on July 22 and advised him that his brother,
who had been out of town, would be back in Fort Worth on July 26, and that he
would be agreeable to holding a meeting in his (Mueller's) office on that date I
do not deem it necessary to detail Harold Mueller's testimony further except to
say that due to a series of misunderstandings Karl Mueller was present in his office
with the company committee on July 26 to meet with the Union and Commissioner
White. As indicated, Lee did not appear. Neither did Commissioner White 26
23 As closely parallel to this case, see Exchange Parts Company, 139 NLRB 710
24 On July 12, White advised Lee that he attempted to arrange a meeting with Smith
but that Smith would not meet without his attorney
=6 Mr Morrow was attached to the Dallas, Texas, office of the Federal Mediation and
Conciliation Service as was Mr. White
26 According to the testimony of Harold Mueller, he later learned from White that White
did not appear because the Union would not agree to meet in Mueller's office and White
therefore assumed that the April 26 meeting would not take place Mueller also testified
that White later advised him that he (White) had overlooked calling him to advise him
to this effect.
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Whatever misunderstanding may have taken place, I am convinced that Lee was
never led to understand that a meeting was scheduled for July 26 27 In any event,
and for the reasons noted hereinafter, I do not deem the circumstances of the ap-
parent July 26 misunderstanding as a determinative factor as to the issue under
discussion.
On July 27, the Respondent announced to its employees that it was granting them
a general 15-cent hourly wage increase to be effective on July 28. The notice to
employees concerning the increase stated as follows:
To All Production and Maintenance Employees:
The company wants to increase your hourly rates of pay 150.
On July 10, 1962, I wrote a letter to the union about this. A copy of my
letter and the proposed new wage schedule is enclosed for your information.
On July 11, 1962, Mr. Lee, the union representative, called and said he wanted
a meeting. I agreed to meet. I also tried to get Mr. Lee to say that the union
would not object to this increase but he would not do so. Mr. Lee wanted the
Conciliator to meet with us and I agreed. A meeting was scheduled for July 26,
1962 at 2: 00 p.m.
I was present for the meeting, along with other company representatives, but
the union did not show up or call. The union still has not answered my letter
of July 10, 1962.
Under these conditions, we do not feel that you should any longer be denied
the increases we want to give you. Therefore, the increases outlined in our letter
of July 10th will be made effective July 27, 1962.
In defense of the allegations pertinent to the July 28 wage increase Respondent states
in its brief, "Respondent did all it could do reasonably in respect to the wage increase
in July 1962, in notifying and giving the Union an opportunity to bargain." This
argument, however, is not in keeping with the facts as disclosed by the entire record
in this case
To begin with, the very language utilized in Respondent's July 10 letter to the Union
belies any bona fide willingness on Respondent's part to discuss the proposed wage
increase with the Union. Thus, Respondent merely stated that it "assumed" that the
Union would not "object" to the increase, but that if so the Union should promptly
notify the Company. Indeed, it is evident that Respondent was extremely reluctant
even to admit that it owed any obligation to bargain with the Union. This is disclosed
by the statement in this letter that, "this communication is in recognition and
satisfaction of such rights as you may have as the bargaining representative of the
employees affected." [Emphasis supplied.] As is apparent on its face, Respondent's
July 10 letter is completely devoid of any offer to meet and discuss its proposed
increase with the bargaining representative. This in itself is a strong indication of
Respondent's lack of good faith in the matter. That Respondent never intended to ful-
fill its bargaining obligations was finally evidenced by its failure to ever give the Union
any real opportunity to discuss the wage increase before placing it into effect on
July 28. Assuming that Respondent was ready to meet on July 26, I find that Re-
spondent was not thereby relieved of its obligation to discuss the proposed increase
with the Union prior to its taking unilateral action on July 28. There is absolutely
no evidence to indicate the necessity of announcing the increase on July 27 and
putting it into effect on the following day. From the evidence in this case, there is
no question in my mind but that Respondent very easily could have arranged to meet
with the Union prior to placing the wage increase in effect if it had any good-faith
intention to fulfill its bargaining obligations in this respect.
The law is well settled that an employer may not unilaterally put into effect a wage
increase without first consulting with the Union. Only in the event of an impasse may
such an increase be granted, and then it cannot be any greater than that offered to the
employees through the Union. N.L.R.B. v. Crompton-Highland Mills, Inc., 337 U.S.
217. Having heretofore found that an impasse did not exist in the instant case, I would
therefore hold that Respondent's unilateral wage increase of July 28 violated the Act
even if it was no greater than that previously offered the Union. Respondent's
action here is all the more serious when it is considered that the July 28 increase ex-
ceeded that of its last offer to the Union. Indeed, the Supreme Court has held that such
27 Not only do I credit Lee's testimony in this respect, but the evidence shows that Lee
took all steps possible to push for a meeting with Respondent throughout the entire period
following the February 26 meeting Lee was available to meet at all times between the
latter date and the instant hearing except for two periods, these being May 21 through 25
and April 24 through 27.
R.C. CAN COMPANY 223
conduct "conclusively manifested bad faith in the negotiations . . . . An employer
is not required to lead with his best offer; he is free to bargain. But even after
an impasse is reached he had no license to grant wage increases greater than he has
offered the Union at the bargaining table, for such action is necessarily inconsistent
with a sincere desire to conclude an agreement with the Union." N.L.R.B. v. Benne
Katz, etc., d/b/a Williamsburg Steel Products Co., 369 U.S. 736, 745. In concluding
this aspect of the case, I find that Respondent's unilateral wage increase on July 28,
under the circumstances herein found, constitutes a per se violation of Section 8(a)(5)
of the Act.
4. Respondent's refusal to notify or discuss the April 26 layoff with the Union
The occasion and circumstances of the April 26 layoff have been set forth previously
herein under the heading of the same name. Additionally, the following facts are
pertinent to the allegation that Respondent violated Section 8(a) (5) of the Act
by unilaterally laying off employees on April 26.
Plant Manager Smith testified that the decision to lay off certain employees was not
made until the actual day of the layoff, i.e., April 26. Recalling that the layoff took
place about 3:15 p.m., it was Smith's testimony that earlier in the day he called Harold
Mueller and advised him of the contemplated layoff. Smith testified that Harold
Mueller thereupon "suggested that we contact Mr. Lee and let Mr. Lee know about
the layoff." Smith testified that after this conversation Harold Mueller called him back
and advised that he was unable to contact Lee. The layoff was then effected as
heretofore related.
Union Representative Lee first learned of the April 26 layoff when Scott reported
it to him on April 28, a Saturday. Lee called Smith on the following Monday,
April 30, and requested a meeting to discuss the April 26 layoff. Smith replied that he
would check with his attorney to see when they could meet and that he would call
back.28 On May I Lee participated in the filing of the first unfair labor practice charge
herein. Lee testified that when he returned to his office on May 2 he found that Smith
had left a message for him to call. Upon calling Smith, Smith advised that he had
arranged to meet with Lee and the negotiating committee at 4 p.m. that day.
When Lee thereupon replied that he would be over for the meeting Smith stated
that since he had been unable to reach him the preceding day he had made other
commitments and could not meet that day.29 Lee called Smith on May 4 and again
requested to meet with respect to the layoff. Lee testified, as Smith conceded, that on
this occasion Smith refused to meet and discuss the matter on the ground that the
Union had filed charges relative to the layoff with the Board. Smith's position was
that from there on "let the Board make their ruling on it." 30
It will be recalled that Respondent predicates the necessity of the April 26 layoff
upon the loss of a contract for certain biscuit cans. Smith testified that the Company
first learned of the loss of this account about the middle of April. He said that the
layoff was not actually decided upon until April 26 because some employees had been
on vacation and until that time he held hopes of preventing a layoff.31 In this con-
nection, the record reveals that Smith and Harold and Karl Mueller participated in a
Board hearing at which Lee was present on April 23. During this hearing Lee an-
nounced that he was leaving for Pittsburgh on April 24 and would be gone for the rest
of the week.32 Aside from the coincidence of the timing of the April 26 layoff, oc-
curring as it did while Lee was absent from the area, Smith's own testimony reveals
that on April 23 he was fully aware of the prospect of an impending layoff. With
knowledge that Lee would be absent for the next few days, it seems to me that Smith
at least might have mentioned the possibility of a layoff to Lee at the April 23 hearing.
In any event, the evidence does not convince me that Respondent has shown the
sudden need for a layoff on April 26 without any prior consultation with the union
^ Actually, Lee held two telephone conversations with Smith on April 30, but the sub-
stance of both conversations are as set forth above. During these conversations Lee in-
dicated he would like the opportunity to work out a plan whereby none of the layoffs, but
particularly Seott's, would not be necessitated.
29 All the foregoing is Lee's unrefuted testimony.
30 On May 7 Lee by letter again requested Smith, inter ataa, to meet with respect to the
layoff Smith made no reply to this letter which he acknowledged receiving
n One reason for making the layoff on a Thursday (April 26) was because according
to Smith, this was the last day of the weekly pay period.
33 Smith conceded hearing Lee say that he was leaving for Pittsburgh that day but said
that he did not recall Lee's stating how long he would be in Pittsburgh
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative.33 But assuming arguendo that there was such a need, Respondent well
well might have cured this deficiency if, at the very least, it had afforded Lee the
opportunity to meet and discuss the situation, as Lee had requested, within a few
days after the layoff. Smith's refusal to do so on the ground that the Union had filed
unfair labor practice charges is legally without merit.34 Accordingly, I find that in
laying off employees on April 26, 1962, without notice to or consultation with the
Union, the bargaining representative, Respondent has violated Section 8(a) (5) and
(1) of the Act. The Board, under analogous circumstances, has found such conduct
to be unlawful under the Act. Exchange Parts Company, 139 NLRB 710.
5. The refusal to furnish information
The complaint alleges that on and after March 8, 1962, Respondent refused to
furnish to the Union data relating to wages, classifications of employees, and related
matters.
In a letter to Plant Manager Smith dated March 8, 1962, Union Representative Lee,
inter alia, made the following request: "Please furnish me a list of the employees, their
classifications and rates of pay who have been hired since the Union was certified as the
bargaining agent." 35 Followup letters which included requests for the same informa-
tion were sent to the Respondent on April 12 and May 7, 1962. It is undisputed
that Respondent made no reply to any of these letters, all of which it acknowledged
receiving, and that it never furnished the Union with the information requested.
Apparently recognizing its obligation to furnishing the foregoing data, Respondent
bases its defense upon the undisputed facts that on July 11, 1961, it had already
provided the Union with the information in kind. However, the Board has also
held that "the employer must make every reasonable effort to supply the Union
with the requested relevant information, and that it must be as precise and current
as is available. [Emphasis supplied.] John S. Swift Company, Inc., 133 NLRB
185, enfd. 302 F. 2d 342 (C.A. 7). Here approximately 8 months had elapsed be-
tween the initial furnishing of this information and the Union's latest request. The
record indicates that during this period Respondent hired new employees and that
several others were given merit increases. The Union was entitled not only to have
this information, but is was also entitled to know whether there was any change
in the classifications or rates of pay of the other employees during this 8-month
period. Certainly, it would have been a simple matter for the Respondent to bring
the Union up to date with this information. I find that Respondent's failure to
fulfill its statutory obligations in this respect not only constitutes an independent
violation of Section 8(a)(5) and (1) of the Act, but it is further evidence that
Respondent did not have a good-faith intention to honor the bargaining process
throughout the period subsequent to February 26, 1962.
6. The transfer of the biscuit line to the Denison plant
The complaint alleges that in September 1962, the Respondent moved its 21/4-inch
cinnamon line from its Arlington plant to its Denison plant, at the same time trans-
ferring some employees from one plant to the other, "without giving the Union an
opportunity to bargain in connection therewith."
The cinnamon line consists of specialized machinery which produces a type of can
used by the larger baking companies for the packaging of rolls and biscusits. The
Pillsbury Baking Co. is the principal customer of this product in the area of Re-
spondent's Arlington plant. Plant Manager Smith testified that as early as 1960
Pillsbury had plans for the erection of a new plant in Denison, Texas, and that these
,plans included space to be leased to the Respondent for an in-plant operation 36 It
also appears that Respondent did not keep secret from its employees the fact that the
biscuit line ultimately would be transferred to the Denison plant as an in-plant
operation. Thus, the testimony of employee James Harris reveals that Assistant
Plant Superintendent Cargill approached him in February 1962 concerning his de-
sire to transfer to Denison in view of the fact that this would be close to his home.
While the testimony is somewhat confused in this respect, it appears that the shutting
33 The fact that the bargaining committee was called in at the last minute and told of
the layoff does not in my opinion satisfy Respondent's obligation to give the Union an
opportunity to discuss the matter. This was not an attempt to bargain with the Union,
but merely an announcement to the committee of a fait accompli.
34 See Automotive Supply Co., Inc, 119 NLRB 1074, 1095, and cases cited therein
35 The letter also requested certain specific classification and pay information regarding
employees Dunn and Ruth Lloyd.
as Denison is located approximately 50 miles from Arlington
R.C. CAN COMPANY 225
down of the cinnamon line was mentioned by Smith at the time of the April 26 layoff
announcement . In any event , during the previously noted telephone conversation
which Lee held with Smith on May 4, Lee mentioned to Smith that he heard one
of the production lines was to be transferred from the Arlington plant to Denison and
that he would like to discuss the possibility of some of the employees transferring to
the new plant . According to Lee, Smith at this time stated that he did not know
exactly when the line would be transferred , but that none of the Arlington employees
would be transferred to Denison . In his letter to Smith dated May 7 (also referred
to earlier ), Lee requested a meeting to discuss "the question of transferring produc-
tion and maintenance employees along with any production lines that may be moved
to Denison and the rates of pay and other working conditions of the employees
affected." Respondent did not reply to the foregoing letter. However , on August 22,
1962, Smith wrote to Lee as follows:
As you know , we are discontinuing the operation of our 21/4 inch line at the
Arlington plant.
The discontinuance of this operation will not result in the layoff or termina-
tion of employment of any of the persons presently employed at Arlington.
The actual transfer of the cinnamon line from Arlington to Denison was made on
September 18, 1962.37 Four Arlington employees were transferred to the Denison
plant at about this time without Respondent 's giving the Union any prior notice or
opportunity to discuss this action . Employees Reese and Harris were transferred as
spiral winder operators , while employees Foster and Dunn were transferred to super-
visory positions.38
It should be made clear that the transfer of the cinnamon line to the Denison plant
does not involve the type of situation where the move was made for purposes pro-
scribed by the Act. Clearly , the move here was based upon economic considerations
and belonged in the area of management prerogative . The issue here rather is
whether Respondent had a duty to bargain concerning the effect of moving upon
the tenure or other conditions of employment of the Arlington employees whom
the Charging Union represented. The Board has answered this question in the
affirmative . Bickford Shoes, Inc., 109 NLRB 1346. From the facts cited above, it
is apparent , and I find, that Respondent never afforded the Union an opportunity to
discuss the effect of the move in question . That at least some employees in the
unit were affected is clearly shown by the fact that four employees were transferred
from the Arlington plant to the Denison operation . Accordingly , I find that Re-
spondent violated Section 8(a) (5) of the Act by refusing to bargain with the Union
concerning the effect of moving its cinnamon line from Arlington to Denison upon
the tenure and terms and conditions of employment of the Arlington employees.39
Other Contentions
In his brief the General Counsel for the first time urges that certain matters not
alleged in the complaint be found as violations . These include an alleged unilateral
layoff of employees on December 26, 1961, the alleged unilateral granting of merit
increases to employees Foster and Dunn between November 1961 and January 1962,
and the setting up of an oil can line in the place of the cinnamon line. I do not
deem it necessary to pass upon these purported violations not only because they
were not alleged in the complaint but also because at no time did the General Counsel
apprise the Respondent that he intended to urge that any of the violations in kind
be found In fact , with respect to the facts concerning the layoff which occurred on
December 26 , General Counsel indicated at the hearing that he was offering such
only to show Respondent 's past practice in laying off employees on a strict seniority
basis. I would regard this as a specific disclaimer of any future intention to urge
such conduct as a violation . Moreover , after the hearing began the General Counsel
on three different occasions made substantial amendments to the complaint . Certain
of these amendments were of such substance that I was required to recess the hearing
31 The move was delayed , it being Smith ' s testimony that it originally had been scheduled
for about June 1
38As previously noted , Dunn was employed as a supervisory trainee at the Arlington
plant
:n Insofar as the record indicates, the four employees to be transferred to Denison did
so voluntarily, or at least willingly Certainly, no protest was made concerning their
transfer Under these circumstances , and standing alone , I might hesitate to find a viola-
tion However , the entire circumstances of this case indicate this to be but another
manifestation of Respondent 's general refusal to bargain with the Union in good faith
during the entire period subsequent to February 26, 1962
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for several weeks in order to give Respondent an opportunity to meet the added
amendments. With knowledge of all the facts involved, it cannot be said that the
General Counsel did not have ample opportunity to complete his amendments prior
to the close of the hearing. Under all of these circumstances, and in the interest of
due process, I do not deem it appropriate to pass upon the General Counsel's latest
contentions.40
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connection
with the operations of Respondent as described in section I, above, have a close,
intimate, and substantial relations to trade, traffic, and commerce among the several
States, and, such of them as have been found to constitute unfair labor practices, tend
to lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
It having been found that the Respondent violated Section 8(a) (1), (3), (4), and
(5) of the Act, it will be recommended that the Respondent cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondent has refused in good faith to bargain collec-
tively with the Union as the exclusive representative of the employees in the ap-
propriate unit described herein. It will therefore be recommended that the Respond-
ent bargain collectively, upon request, with the Union as the exclusive representative
of the employees in the appropriate unit, and, if an understanding is reached, embody
such understanding in a signed agreement.
It also has been found that Respondent discriminatorily laid off employee Milford
Scott. Accordingly, it will be recommended that Respondent make Scott whole
for any loss of pay he may have suffered by reason of said discrimination by payment
to him a sum equal to that which he would have earned as wages from the date of said
discrimination to May 7, 1962, and in a manner consistent with Board policy set forth
in F. W. Woolworth Company, 90 NLRB 289, with interest as provided in Isis
Plumbing & Heating Co., 138 NLRB 716.
In view of the extent and nature of the unfair labor practices committed, the
commission by the Respondent of similar and of other unfair labor practices may be
anticipated here. It will therefore be recommended that the Respondent be ordered
to cease and desist from in any manner infringing upon the rights guaranteed its
employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. United Steelworkers of America, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Milford
Scott, thereby discouraging membership in the Union, the Respondent has engaged
in unfair labor practices within the meaning of Secton 8(a) (3), (4), and (1) of the
Act.
4 By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed to them by Section 7 of the Act, Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the
Act
5. All production and maintenance employees, including shipping and receiving
employees, leadmen, and truckdrivers of Respondent, employed at its Arlington,
Texas, plant, exclusive of guards, watchmen, office clericals, professional, technical
employees, and all supervisors as defined in the Act, constitute a unit appropriate for
the purpose of collective bargaining within the meaning of Section 9(b) of the Act.
6. United Steelworkers of America, AFL-CIO, was, on February 26, 1962, and at
all times thereafter has been, the exclusive representative of the employees in the
appropriate unit for the purposes of collective bargaining.
7. By refusing after February 26, 1962, to bargain with the Union, Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a) (5) of the Act.
"While this is not my reason for not passing on the alleged addition al violations, it
might be pointed out that the scope of the remedial order herein would not he affected by
whatever disposition might be made of these contentions.
R.C. CAN COMPANY 227
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this case, I recommend that the Respondent, R.C. Can Company,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain in good faith concerning rates of pay, wages, hours of
employment, or other conditions of employment with the Union as the exclusive
representative of the employees in the appropriate bargaining unit.
(b) Discharging or otherwise discriminating against its employees because they
have given testimony under the Act.
(c) Discouraging membership in United Steelworkers of America, AFL-CIO, or
in any other labor organization, by discriminating in regard to hire or tenure of em-
ployment or any term or condition thereof.
(d) In any other manner interfering with, restraining, or coercing its employees in
the exercise of their right to self-organization, to form, join, or assist the above-
named Union, or any other labor organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection, or to refrain from
any or all such activities.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Upon request, bargain collectively in good faith with United Steelworkers of
America, AFL-CIO, as the exclusive representative of all production and maintenance
employees, including shipping and receiving employees, leadmen, and truckdrivers of
Respondent, employed at its Arlington, Texas, plant, exclusive of guards, watchmen,
office clericals, professional, technical employees, and all supervisors as defined in the
Act, with respect to rates of pay, wages, hours of employment, or other terms and
conditions of employment, and, if an understanding is reached, embody such under-
standing in a signed written agreement.
(b) Make whole employee Milford Scott for any loss of pay he may have suffered
by reason of the discrimination against him.
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its plant in Arlington, Texas, copies of the attached notice marked
"Appendix." 41 Copies of said notice, to be furnished by the Regional Director for
the Sixteenth Region, shall, after being duly signed by the Respondent's representative,
be posted by the Respondent immediately upon receipt thereof, and be maintained by
it for a period of 60 consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that such notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for the Sixteenth Region, in writing, within 20 days
from the date of receipt of this Intermediate Report, what steps the Respondent has
taken to comply herewith.42
^ If this Recommended Order Is adopted by the Board, the words "A Decision and
Order" sihall be substituted for the words "The Recommended Order of a Trial Examiner"
in the notice. In the further event that the Board's Order is enforced by a decree of a
United States Court of Appeals, the words "A Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order."
4 If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify said Regional Director, in writing, within 10 days from the date of this
Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, you are notified that:
727-083-64--vol. 144-16
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discharge or otherwise discriminate against our employees
because they have given testimony under the Act.
WE WILL NOT discourage membership of our employees in United Steel-
workers of America, AFL-CIO, or in any other labor organization of our em-
ployees, by discriminating in regard to hire or tenure of employment or any
term or condition thereof.
WE WILL NOT threaten our employees for engaging in union activities.
WE WILL NOT refuse to bargain collectively in good faith with United Steel-
workers of America, AFL-CIO, as the exclusive bargaining representative of
all our production and maintenance employees , including shipping and receiving
employees, leadmen, and truckdrivers, employed at our Arlington, Texas, plant,
exclusive of guards, watchmen, office clericals, professional, technical employees,
and all supervisors as defined in the Act, with respect to rates of pay, wages,
hours of employment, and other terms and conditions of employment.
WE WILL NOT unilaterally grant wage increases to, or otherwise alter the
terms and conditions of employment of, our employees in the above-described
appropriate unit, without first giving notice to and discussing the matter with
the above-named Union as the exclusive bargaining representative of our em-
ployees in such unit.
WE WILL furnish to the above-named Union, or its agents, upon request, the
job classifications and wage rates of the employees in the appropriate unit.
WE WILL, upon request, meet with and bargain collectively with the above
Union with reasonable frequency and promptness concerning the negotiation
of a contract.
WE WILL make whole Milford Scott for any loss of earnings he may have
suffered as a result of the discrimination against him.
WE WILL NOT in any manner interfere with our employees' rights as guaran-
teed in the Act.
All our employees are free to become, remain, or refrain from becoming or re-
maining, members of the above labor organization, or any labor organization.
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 5-4211, Extension 2131, if they have any question concerning this
notice or any compliance with its provisions.
Raymond 0 . Lewis,* W. A. Boyle and John Owens , as Agents for
the International Union , United Mine Workers of America and
as Members of the Joint Industry Contract Committee estab-
lished by the National Bituminous Coal Wage Agreement of
1950, and Edward G. Fox, C. W. Davis and Hamilton K . Beebe,
as Agents for the Coal Operators signatory to the National
Bituminous Coal Wage Agreement of 1950 and as Members of
the Joint Industry Contract Committee established by that
Agreement and Arthur J. Galligan . Case No. 5-CE-6. August
07, 1963
DECISION AND ORDER
Upon charges duly filed on November 29, 1962, by Arthur J. Galli-
gan, an individual, the General Counsel of the National Labor Rela-
*Designated a member of the Committee to replace Thomas Kennedy, deceased.
144 NLRB No. 29.