San Antonio Machine & Supply Corp.

National Labor Relations Board - Board Decisions

Jun 29, 1964

147 N.L.R.B. 1112 (N.L.R.B. 1964)

1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere with , restrain , or coerce our
employees in the exercise of their rights to self-organization , to form , join, or
assist Communications Workers of America , AFL-CIO, or any other labor
organization , to bargain collectively through representatives of their own choos-
ing, 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 , except to the extent that such right may be affected by the provisos to
Section 8(a) (3) of the Act.
WE WILL offer Robert L. Sanford immediate and full reinstatement to his
former or substantially equivalent position , and make him whole for any loss
of pay suffered by reason of the discrimination against him.
All our employees are free to become, remain , or refrain from becoming or re-
maining members of Communications Workers of America, AFL-CIO, or any other
labor organization.
MT. VERNON TELEPHONE CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
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 applica-
tion in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act of 1948 , as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting
and must not be altered , defaced , or covered by any other material. .
Employees may communicate directly with the Board's Regional Office , 720 Bulkley
Building, 1501 Euclid Avenue, Cleveland , Ohio , Telephone No. Main 1-4465, if
they have any question concerning this notice or compliance with its provisions.
APPENDIX B
In addition to the corrections already ordered at page 379 and pages 436 through
443 of the transcript , the transcript is hereby ordered corrected as follows:
1. Page 373 , line 18 , change 1963 to 1962.
2. Page 379, line 415 , change "benches" to "banks".
3. Page 441 , line 20, change this sentence to read : page 303, line 5, insert "the
work" after "that".
4. Page 461, line 6 , "Appleton" for "Bush".
5. Page 463, line 7, "Colgin" for "Coleman".
6. Page 464, lines 11 and 12, this sentence should read : "Did the equipment de-
crease after he put Sanford on?"
7. Page 464 , line 18 , insert "was demoted" after "Sanford".
8. Page 465 , line 20, "Colgin" for "Coleman".
9. Page 484 , line 17, change "This" to "Apart from this".
z 10. Page 485 , line 13 , strike "not".
11. Page 486, line 18, insert "to" after "previous" and strike comma.
12. Page 495 , line 7, "exhibit" for "contract".
13. Page 507 , line 4 , "did" for "do".
14. Page 518 , line 23 , "he" for "you".
15. Page 520 , line 11 , "well" for "for".
16. Page 522, line 20 , "Do" for "If".
17. Page 527 , line 24 , "Lahm" for "Long".
San Antonio Machine & Supply Corp . and United Steelworkers
of America , AFL-CIO. Case No. 23-CA-1651. June 29, 1964
DECISION AND ORDER
On February 10, 1964, Trial Examiner Horace A. Ruckel issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices and
147 NLRB No. 114.
SAN ANTONIO MACHINE & SUPPLY CORP. 1113
recommending that it cease and desist therefrom and take certain af-
firmative action as set forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the Trial Examiner's
Decision.
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-melriber
panel [Chairman McCulloch and Members Leedom and Jenkins].
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 Decision
and the entire record in this case, including the exceptions and the
briefs, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the addition noted below.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order the Order recom-
mended by the Trial Examiner and orders that Respondent, San
Antonio Machine & Supply Corp., its officers, agents, successors, and
assigns, shall take the action set forth in the Trial Examiner's Recom-
mended Order .2
The Trial Examiner found that the strike which began on May 27 , 1963, was caused
by Respondent 's failure to bargain in good faith with the Union on and after May 23,
1963. Respondent contends , inter alia, that this finding is unsupported . It relies on the
fact that the strike vote was taken on May 10, some 2 weeks before Respondent's failure
to bargain in good faith is found to have begun , and upon the further fact that the Union,
on May 9, 1963, engaged in a demonstration which made it clear that it was threatening
to strike over the seniority issue, an issue which was never resolved by the parties even on
a tentative basis. However , as the nature of Respondent's failure to bargain in good faith
on and after May 23, 1963 , was such as to destroy the possibility that full agreement
might otherwise have been reached, we are unable to say that the strike would have
occurred even in the absence of Respondent 's unfair labor practice . The law is settled
that where there are several causes for a strike, one of which is a wrongful refusal to
bargain , "it rest[s] upon the tortfeasor to disentangle the consequences for which it was
chargeable from those from which it is immune ." (N.L.R.B. v. Remington Rand, Inc.,
94 F. 2d 862 , 872 (C.A. 2), cert. denied 304 U.S. 576. ) We therefore reject the contention
of Respondent , and find in agreement with the Trial Examiner that the strike was sub-
stantially caused by Respondent 's unfair labor practice . It appears , moreover , as found
by the Trial Examiner , that on June 3, 1963 , the Union proposed the resumption of nego-
tiations on the basis of the status of such negotiations immediately prior to May 23, 1963,
offering to call off the strike as a quid pro quo therefor , but Respondent refused to resume
bargaining on that basis . This, in our view , both buttresses the Trial Examiner 's finding
as to the cause of the strike , and supports a further finding that the strike was pro-
longed by Respondent 's violation of Section 8(a) (5).
2 The Trial Examiner recommended , inter alia, that the Respondent establish a prefer-
ential hiring list for any unfair labor practice strikers for whom jobs may not be immedi-
ately available . However, the Trial Examiner did not allude to the fact , as the record
shows, that since the beginning of the strike the Respondent has substantially reduced
its total complement of employees. Under the circumstances, we agree with the Trial
Examiner ' s Recommended Order as set forth in his Decision.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on June 24, 1963 , by United Steelworkers of America, AFL-
CIO, herein called the Union , the General Counsel of the National Labor Relations
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board, herein respectively called the General Counsel and the Board, by the Regional
Director for the Twenty-third Region (Houston, Texas), issued a complaint dated Au-
gust 9 and amended on October 8, 1963, against San Antonio Machine & Supply
Corporation, herein called Respondent The complaint, as amended, alleges that
Respondent has engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(3), (5), and (1) and Section 2(6) and (7) of the National
Labor Relations Act, as amended (29 U S C Sec 151 et seq ), herein called the Act
Specifically, the complaint alleges that Respondent (1) beginning on or about
May 23, 1963, and continuing thereafter, has failed to bargain with the Union as the
representative of its employees in an appropriate unit, as the result of which the Union
on May 27 went on a strike which is said to be an unfair labor practice strike, and
(2) on May 28, 1963, discharged an employee, Florence Alsbury and has since
failed and refused to rehire her because of her membership in, or activities on behalf
of, the Union, and because she engaged in concerted activities with other employees
for the purpose of collective bargaining, and in order to discourage other employees
from engaging in concerted activities on behalf of the Union Respondent has filed
an answer denying the commission of unfair labor practices
Pursuant to notice, a hearing was held before Trial Examiner Horace A Ruckel
at San Antonio, Texas, from November 19 to 23, 1963, at which all parties were
represented by counsel Upon the conclusion of the hearing the parties waived oral
argument and have filed briefs with me
Upon the record as a whole, and from my observation of the witnesses, I make
the following
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Respondent is a Texas corporation having its principal office and plant in San
Antonio, Texas, and branches at Corpus Christi and McAllen, Texas It is engaged
in the business of manufacturing and distributing industrial supplies and water and
plumbing supplies About March 25, 1963, W G Lewis and Carlos Watson pur-
chased a substantial portion of the assets and assumed the liabilities of San Antonio
Machine & Supply Company which was then engaged in the operations described
above About April 1, 1963, Lewis and Watson transferred these assets to Respond-
ent Respondent since then has operated the facilities of San Antonio Machine &
Supply Company with substantially the same employees
From Apiil 1, 1963, to the issuance of the complaint, a period representative at
all times material herein, Respondent sold and shipped industrial supplies and water
and plumbing supplies valued at more than $50,000 from points within the State of
Texas directly to points outside that State During the same period Respondent
purchased products valued in excess of $50,000 which were shipped to its facilities
within the State of Texas from points outside the State of Texas
During the 12 months preceding April 1, 1963, San Antonio Machine & Supply
Company, the predecessor employer, sold and shipped industrial water and plumb-
ing supplies valued in excess of $50,000 from points within the State of Texas di-
rectly to points outside the State During the same period the Company purchased
products valued at more than $50 000 to its facilities in Texas directly from points
outside Texas The complaint alleges and Respondents answer admits, that Re-
spondent 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 a labor organization admitting
employees of Respondent to membership
III THE UNFAIR LABOR PRACTICES
A The refusal to bargain
1 The appropriate unit, the Union s majority therein
On August 8, 1960, the Board certified the Union as the collective-bargaining
representative of the employees of Respondents predecessor in a unit consisting of
production and maintenance employees, including warehouse and shipping employees,
truckdrivers and helpers, garage employees and plant clerical workers, excluding all
office clerical employees, salesmen, engineering and professional employees, guards,
watchmen and supervisors as defined in the Act The complaint alleges, Respond-
ent's answer admits, and I find that employees in these classifications now employed
SAN ANTONIO MACHINE & SUPPLY CORP. 1115
by Respondent at its San Antonio, Corpus Christi, and. McAllen, Texas, facilities,
constitute a unit appropriate for collective bargaining within the, meaning of Sec-
tion 9 (b) of the Act.
The complaint alleges, Respondent's answer does not deny, and I find that on
about April 1, 1963, a majority of the employees •in the above unit signed union
authorization cards designating the Union as their exclusive representative for col-
lective bargaining.
2. The refusal to bargain
The course of the negotiations
The unit, the Union's majority therein, and its authority to bargain for Respond-
ent's employees in the unit, are not disputed. But Respondent denies that it failed
to bargain in good faith with the Union.. Ray, a representative of the Union, together
with counsel for the Union and five employee members of the negotiating committee,
met preliminarily with President Lewis on April 5, 1963, at his office. Lewis ex-
pressed a willingness to negotiate a contract and Ray submitted to him an outline of
proposed changes in the Union's contract with the predecessor company. No discus-
sion took place as to these proposals except that Lewis expressed concern with the
seniority clause in the old contract. The first meeting at which bargaining took place
was on April 17 when the same union representatives met with President Lewis and
Vice President Parker. The seniority provision of the Union's proposed contract
was discussed, Ray presenting the Union's position clause by clause, but no attempt
was made to reach an agreement. On April 26 the parties met again and discussed
the first eight articles of the old contract, paragraph by paragraph. Both Lewis and
Ray testified that agreement was reached on recognition, checkoff of dues, holidays
(leaving in abeyance the question of an additional holiday), and grievance proce-
dure. Discussion of hours of work and wage rates was put over until a later meet-
ing, together with other demands constituting "the economic package."
At the next meeting, on April 30 and May 1, Lewis, pursuant to a suggestion made
by Ray at the April 26 session, submitted a seniority proposal stating: "This is the
seniority proposal that the Company feels-like we could live with." This proposal
and other clauses in the contract were discussed at this meeting, and Ray and Lewis
are in agreement that, with respect to seniority, agreement was reached concerning
the determination of seniority units, the definition of continuous service, and other
items.
At the next session , on May 9, the parties discussed articles IX through XXII of
the contract, and agreement was reached on all but two of these provisions.' The
Union agreed to exclude the subject of unauthorized strikes from the application of
the grievance procedure and to retain in a new contract a subcontracting-work clause,
proffered by management, to which it had previously expressed opposition. At the
close of this session most of the provisions in the old contract had been agreed to
with certain changes and additions, for incorporation in a new contract, except those
which pertained to "economic matters," such as wages, an extra paid holiday, extra
vacation pay, and pensions and insurance, and part of the seniority. clause. These
"economic demands" were set aside for discussion at a future meeting. Any agree-
ment reached on these matters was to be retroactive to April 12.
Lewis and Ray both testified that at the close of the May 1 meeting they felt
that substantial progress had been made toward a new contract. Lewis stated that
"both sides felt that we were making a good progress," and that he believed a
contract could be consummated in the near future. It was recognized, however,
that final agreement on a seniority clause would be of some difficulty.
At the next meeting, on May 16, Lewis and Parker were joined at the bargaining
table by one Shawd, a consultant whom Respondent had newly hired. Ray opened
the meeting by reviewing for Shawd's benefit the progress which had been made,
and stated that the only areas left for negotiations pertained to the "economic
package" and the rest of the seniority clause. Lewis expressed agreement, accord-
ing to his testimony, that there were "just a few areas left for negotiations." Shawd
stated, however, that- some of the tentative agreements might require reexamination
because of the "administrative costs" involved, and that at the next meeting he
would "present a proposal on the economic matters."
1 The following clauses were agreed to : article IX, plant grievance committee ; article X
discharges as matters for grieving ; article XI, no-strike clause ; article XIII, military
leave ; article XIV, temporary transfer : article XV, safety and health ; article XV, gen-
eral provisions ; article XVIII, foreman or supervisors ; article XIX, management clause ;
article XX, the scope of the agreement; and article XXI, the term of the agreement.
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The parties next met on May 23. At its opening Shawd handed Ray a complete
company proposal which included substantial departures from what had previously
been agreed upon .2 Calling Shawd's attention to one such proposal-that pertain-
ing to holidays-Ray demanded to know if this was an indication that Respondent
was withdrawing all the tentative agreements arrived at over the several weeks
prior to Shawd's advent. Shawd and Lewis both said that this was the case, Lewis
saying, "We are standing on withdrawing our tentative agreements."
On May 24 Ray called in the conciliation service and sessions were conducted by
a mediator on May 25 and 26. The position of the parties, however, remained
unchanged. At a meeting with the mediator on May 26, Ray stated that since
the Respondent had withdrawn the tentative agreement, the parties were further
apart than they had been on the first day of negotiations, and that the Union was
calling a strike. The strike began at midnight.
On June 3 the Union offered to call off the strike if the Respondent would agree
to restore the tentative agreements as the basis for negotiating the rest of the contract.
Respondent rejected the offer. On November 14, 1963, a week prior to the com-
mencement of the hearing, the Union called off the strike and, in behalf of the
strikers, unconditionally offered to return them to work. At the same time the
individual strikers wrote letters unconditionally applying for reinstatement.
Conclusions °
The record is clear that negotiations proceeded smoothly from April 17, 1963,
when representatives of the Union and Respondent first met to negotiate the provi-
sions of a new contract on the basis of the expired contract with Respondent's
predecessor, until May 23 when Shawd, Respondent's newly hired labor relations
consultant, began actively to participate in the discussions. Contract demands of
an "economic" nature were held in abeyance so that the parties might reach agree-
ment on those contract provisions where the area of agreement was thought to be
greater. As a result, by May 1 the parties reached tentative agreement on almost
all contract provisions except economic matters and excepting one-half of the
seniority clause.3 Ray expressed confidence that a complete agreement was in
process of being worked out, and he so advised the members at a union meeting.
Lewis was equally optimistic. According to him, only a few areas, albeit the im-
portant ones of seniority and wages, were left for negotiation, and a complete agree-
ment would be "consummated in the near future."
This prospect was dimmed when Shawd intervened on May 23 and abruptly and
without previous warning, and without concern for a reasonable continuity of nego-
tiations over a 4-week period and five bargaining sessions, announced that Respond-
ent was withdrawing from all the tentative agreements on individual clauses of a
proposed contract. These agreements were, in effect, swept from the bargaining
table. The parties were to start all over again and bargain on the basis of a proposed
3In every case the proposals were less favorable to the Union than the contract clauses
already agreed to. Among the changes were those pertaining to recall rights after layoff,
the grievance procedure, holidays, vacations, the plant grievance committee, reporting
pay, and jury pay. In other instances, where agreement had not been reached, Respond-
ent withdrew its original offer and substituted more stringent demands . For example, the
old contract provided for recall rights for 2 years after layoff. Respondent originally de-
manded 6 months. In its May 23 proposal, Respondent reduced the period to 3 months.
Whereas Lewis and Ray had agreed to a holiday clause which provided that holidays
would be paid, though not worked, the May 23 proposal eliminated this. Whereas the
parties had agreed to a vacation clause where eligibility was based on a 1 ,600-hour basis,
the May 23 proposal was for a basis of 1,600 hours "straight" time.
3 The seniority provision in the former contract was for strict seniority in layoffs, recall,
and promotions. Respondent 's proposal of May 23 provided that continuous service should
be a determining factor only when ability to perform the work, physical fitness, and
"availability and potentiality" were relatively equal. Respondent was to be the sole judge
of availability and potentiality. Moreover, length of service would begin as of April 1,
1963, thus abolishing the seniority accrued by employees under the predecessor contract,
some of whom have been employed for many years. On the even of the strike Respondent
conceded that length of service under the predecessor company should be carried over.
The Union's view is that this concession is of little value since service of whatever length
was subordinate to physical condition, ability, and "availability and potentiality." These
factors remained within the exclusive determination of Respondent.
SAN ANTONIO MACHINE & SUPPLY CORP. 1117
contract submitted by Shawd, almost every article of which was less advantageous to
the Union than both the predecessor contract which had been the basis of bargain-
ing, and the tentative agreements already reached by the parties.
Respondent defends this course of conduct by reference to the law of contracts.
A "tentative" agreement, says counsel, is not a final, binding contract. The im-
plication is that Respondent was free to do as it did and repudiate the agreements
made during five bargaining sessions at any time before the entire contract had
been agreed to and, perhaps, signed. The Board held to the contrary in Shannon &
Simpson Casket Company, 99 NLRB 430 4 where it said:
Apparently the Respondent seeks to justify certain of the above-described
conduct by reliance on axioms of contract law. However, the rules by which
it is determined whether or not the parties have made a contract are not the
rules by which it is determined whether or not the parties have bargained in
good faith.. . The obligation under the Act contemplates that the parties
come to the bargaining table with a fair and open mind and a sincere desire
and purpose to conclude an agreement on mutually satisfactory terms. Reliance
upon the rules of contract law so as to forestall and avoid agreement does not
satisfy that obligation.
In that case the employer's counsel stated that because the union had not accepted
the respondent's entire proposal "there is no offer or proposal on the table at this
time." The Board pointed out: "The demoralizing and frustrating effort of the Re-
spondent's requirement at this final stage of negotiations, that they begin anew is
readily apparent."
In Tomlinson of High Point, Inc., 74 NLRB 681, the Board held that an employers
protestations of willingness to bargain were meaningless where its bad faith was
demonstrated by presentation to the union of contract proposals which omitted,
rejected, or substantially changed provisions to which it had previously agreed,
its insistence that no agreements had previously been reached, and that all matters
should be reopened. In Mooney Aircraft, Inc., 132 NLRB 1194, the facts upon
which a refusal-to-bargain finding was made were recited:
Negotiations held during and after the strike were to no avail. The company
president insisted upon renegotiating every single item in the proposed contract;
refused in several instances to accept provisions previously agreed upon, and
persisted in the position that any agreement reached as to any item was tenta-
tive only and conditional upon consummation of an entire agreement. This
change of position was explained by the president as resulting from situation
that he, not the superintendent, was now doing the negotiating.
I find that Respondent on and after May 23, 1963, by withdrawing from and
repudiating agreements already arrived at, and by changing its position abruptly
and without any announced reason, and maintaining its changed position without
deviation except for a concession of sorts in the definition of continuous service,
failed to bargain in good faith with the Union thus engaging in unfair labor practices
in violation of Section 8(a) (5) and (1) of the Act.
I find that the strike which took place on May 27, 1963, was caused by Respond-
ent's unfair labor practices.
On November 13, 1963, the Union, on behalf of the strikers, wrote Respondent
making an unconditional application for the reinstatement of the strikers. Respond-
ent received this recommendation on November 14. Also, on November 13, 97
persons individually wrote Respondent applying unconditionally for reinstatement.
It is stipulated that 17 of these persons were not employees.
B. The discharge of Florence Alsbury
Florence Alsbury, a secretary in Respondent's employ and hence an office clerical
employee not within the appropriate unit, was employed by the predecessor company
since October 1959. Her work was in the plumbing department of which Richard
Heltebridle had been superintendent since April, when Respondent took over from
the former company. Her immediate superior was Ruby Novian, office manager.
As a secretary, Alsbury's duties were to help with the advertising, type bids or
quotations, draw up brochures, write orders, oversee the filing system, answer the
telephone, and occasionally wait on customers .5 She spent more of her time typing
quotations than at any other duty.
'Enfd. 208 F. 2d 545 (C.A. 9).
6 Much of Respondent's business is done over the telephone. Occasionally, a sale is made
to a customer who has come to the salesroom.
0
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When the Union went on strike on Monday, May 27, it placed a picket line in
front of the plant On the following day, about 10 45 a in , a catering truck which
dispensed sandwiches and soft drinks pulled up in the driveway alongside the plant
near the office This truck makes two visits a day and employees are permitted
to visit it This constitutes their daily breaks If an employee does not want to
patronize the truck he takes his break at some other time On the occasion in
question Alsbury on her way to the truck passed an employee, Melvin Williams, who
was walking the picket line within a few feet of the truck Alsbury asked him if he
wanted anything from the truck and upon receiving an affirmative answer she bought
a sandwich and a soft drink and gave them to him Novian, who was also at the
truck, observed the incident, as did other employees including those on the picket
line He said nothing to Alsbury, but immediately reported the occurrence to
Heltebridle saying, according to the latter "There it is again She left her desk and
the telephone is ringing and she's taking soda water to one of the pickets " Helte-
bridle, like Novian, said nothing to Alsbury but later that afternoon after con-
ferring with Vice President Parker discharged Alsbury According to Alsbury,
when she asked Heltebridle if he knew the reason for her discharge he said They
didn't give me any reason " Heltebridle's testimony is that when Alsbury asked
why she was discharged he replied, Tootie, I think you should know the reason
why", and when she repeated the question he said, 'Tootie, I think it is because
you are not tending to your phone business enough " Whether Heltebridle s or
Alsbury s version is the correct one, it is clear that Heltebridle made no reference
to her being away from the telephone on any specific occasion as a reason for
letting her go
Respondent cites as "the incident which triggered her discharge," an occurrence
which it says took place during the early afternoon of May 28 after the picket line
incident The testimony of Heltebridle is that when he was talking to a prospective
customer in the showroom of the plumbing department, the telephone rang Alsbury,
he states, was absent from her desk so he answered it himself This happened two or
three more times, for conversations of 2 or 3 minutes Heltebridle did not make the
sale, which he believed might have amounted to as much as $800, and he seems to
attribute this to Alsbury After the customer left, he set out, still according to his
own testimony, to find Alsbury and he located her in the warehouse talking to two
warehousemen These he first identified as Mutt and Tanto He corrected himself
when he recalled that these two employees were on strike, and named instead
Marcellma Martinez and Ruby Garcia He then acknowledged that Garcia had not
yet been hired He maintained, however, that Martinez had been He in turn
retracted this when he remembered that no replacements had been hired the first
2 days after the strike began He concluded by saying that he could not say to whom
Alsbury was talking He conceded that he did not speak to Alsbury when he found
her, either to tell her she was needed in the office or to ask her what she was doing
in the warehouse 6 Instead he went to Parker and obtained his consent to discharge
Alsbury
Heltebridle's recollection was no better when he was asked the name of the pros-
pective customer or his address He testified he did not make a record of these
matters, although other credited testimony is that such information is generally noted
down for future reference, even when a sale is not consummated
Alsbury testified that she was at her desk during the entire afternoon of May 28,
and denied that any such customer as that described by Heltebridle came into the
room or to the sales counter I found Alsbury to be a straightforward witness, in
contrast to Heltebridle, and I credit her testimony
When Heltebridle and Parker conferred about discharging Alsbury the former
advanced as reasons for the action that she had brought a picket a soft drink and
sandwich and (a charge which I have found untrue) that she was absent from the
telephone earlier that afternoon, as well as general complaints of her lack of co-
operation with him since his appointment as plumbing superintendent a few weeks
previously Parker s account of Heltebridle s reference to the picket-line incident
was as follows
A He also told me-about its being reported that Mrs Alsbury had
gone out to the picket line to take a soft drink, I believe, to one of the pickets
Q (By Mr WEISS ) What did he say about that')
A Simply that this was one of-I mean this was mentioned in the same
tone as all these other things that were reported to me
9 The record shows that Alsbury occasionally went to the warehouse to inquire about an
invoice or some other matter connected with her work
SAN ANTONIO MACHINE, & SUPPLY CORP. 1119
Respondent advances as reasons for discharging Alsbury other than her'buying a!
soft drink and sandwich for a picket during the morning of the day of her discharge,
and her being away from the telephone that afternoon, that (1) on previous occa-.
sions, as well, she had not answered the telephone. Heltebridle testified, however,
that he had never spoken to Alsbury about her work performance other than answer-
ing the telephone, and as to this he spoke to her once, or perhaps twice. Novian's
testimony is that he spoke to her once on that subject, alone , and on no other;.
(2) she was sometimes slow in typing.up bids and (3) on one occasion she spoke
belligerently to a customer over the ,telephone. On cross-examination Heltebridle
admitted that he did not know whether it was a customer. Finally, (4) she did not
cooperate well with Heltebridle.
I find Respondent's additional complaints as to Alsbury's work to be trivial. It
does not appear that Respondent ever complained seriously to Alsbury about her
work, much less reprimand her.
Conclusions
Heltebridle's contradictory testimony as to whom Alsbury was talking to in the.
warehouse and his final admission that he did not know to whom she was talking,
coupled with the fact that, since the employees in the warehouse were on strike it is
exceedingly doubtful if she could have been talking to anyone, leads me to conclude,
and I find, that Heltebridle's testimony is untruthful and his whole account of the
$800 customer and Alsbury's absence from her desk a product of the imagination.
I credit Alsbury's testimony that she was not away from her desk when a possible,
customer was at the sales counter on the afternoon of May 28.
It is apparent, however, that one reason for Respondent's discharge of Alsbury on
May 28 was her action that morning in buying a soft drink and a sandwich for one
of Respondent's striking employees on the picket line.?
Parker's testimony is clear that one reason why Heltebridle sought to discharge
Alsbury was that she gave aid and comfort to a striker, not simply her absence from
her desk or her presence at the catering truck. Employees had carte blanche to
patronize the truck when it called, and Novian, like Alsbury, did so. Novian; also,
makes it evident that the gravamen of the complaint as to Alsbury was not her
presence at the truck, and her consequent absence from the telephone:
TRIAL EXAMINER: Well, there is no complaint about her going out to the
catering truck to get a drink even though the phone should ring in her absence,
that wasn't a ground for complaint, was it?
The WITNESS: No, Sir.
I conclude and find that the gist of Respondents charge against Alsbury was that
she gave aid and comfort to a picket. This was what Novian reported to Heltebridle
and what Heltebridle reported to Parker. There would have been no point in
Novian's reporting to Heltebridle and in Heltebridle's ,reporting to Parker merely that
Alsbury had left her desk to patronize the catering truck, since this was standard prac-
tice for all employees.
Respondents counsel misapprehends the reach of the Act when he emphasizes in
his brief that "there is not a shred of evidence that [Alsbury] was a union member,"
and that Respondent "had no reason to believe" that she was. It is not so con-
tended. Nor is it disputed that she was not a member of the collective-bargaining
unit . Section'8(a)(3) of the Act, however, proscribes "discrimination in regard to
hire or tenure of employment, to encourage or discourage membership in any labor
organization." Alsbury, though not a member of the unit, was still an employee,
and her activity at the Union's picket line was an activity protected by the Act. The
Board has frequently held: violative of Section 8(a)(3) of the Act discrimination
against an employee who. is not a member of the bargaining unit, because of aid
and comfort given a union :e^ . ^^
Alsbury's act was a syrnpathetic. act in support of the.Union and the Union's strike,
which was caused by Respondent's unfair labor practices. It was witnessed by
striking and nonstriking, employees alike. These employees, could not have helped
associating it with her discharge later the same day, and attributing the one to the
other; and drawing the conclusion that their own collective activity might well be
penalized by discharge. I have found that Respondent did in fact discharge Alsbury
7 There is some conflict in the evidence as to whether the picket line incident took place
on May 27 or 28. I find that It was the latter date.
8 See: Golub Bros. Concessions , 140 NLRB 120; Miami Coca Cola Bottling Company
doing business as Key West Coca Cola Bottling Company, 140 NLRB 1359; Marydale
Products Company, Inc., 133 NLRB 1223; Texas Foundries , Inc., 101 NLRB 1042.
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because she gave aid and comfort to the Union's cause in the manner described. In
so doing, Respondent discouraged membership in a labor organization in violation
of Section 8 (a) (3) and ( 1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above , occurring in, connec-
tion with its operation described in section I, above, have a close, intimate , and sub-
stantial relation to trade , traffic, and commerce among the several States, and tend
to lead , and have led , to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has violated Section 8 (a)(3), (5), and ( 1) of the
Act, I will recommend that it cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
Having found that Respondent since May 23, 1963, has failed and refused to
bargain collectively with the Union as the exclusive representative of Respondent's
employees , in an appropriate unit , I shall recommend that Respondent be ordered to
bargain collectively , upon request , with the Union as the exclusive representative of
its employees and, if an understanding is reached , embody such understanding in
a signed contract.
I have found that the strike which took place on May 27, 1963, was caused by
unfair labor practices of Respondent . As unfair labor practice strikers , Respond-
ent's striking employees were, upon their unconditional application for reinstate-
ment on November 14, 1963, entitled to reinstatement , and Respondent's failure
to reinstate any of them was a violation of Section 8(a)(3) of the Act. I shall
recommend that Respondent offer such employees as it has not reinstated immediate
and full reinstatement to their former or substantially equivalent positions, dis-
missing, if necessary , any employees hired since May 27 , 1963. If, after such dis-
missal , there are insufficient positions remaining for all these employees , the available
positions shall be distributed among them , without discrimination because of their
union membership or activity, or participation in the strike, in accordance with
such system of seniority as has heretofore been applied in the conduct of Respond-
ent's business . Those strikers for whom no employment is immediately available
after such distribution shall be placed upon a preferential hiring list with priority
among them determined by such system of seniority as has heretofore been applied
in the conduct of Respondent 's business , and thereafter , in accordance with such
list, shall be offered reinstatement as positions become available , and before other
persons are hired for work . Reinstatement , as provided herein, shall be without.
prejudice to the employees ' seniority or other rights and privileges.
I shall also recommend that Respondent be required to make these employees whole
for any loss of pay they may have suffered by reason of Respondents discrimination
against them. This shall be done by payment to each of them of a sum of money
he normally would have earned from November 14, 1963, to the date of reinstate-
ment or placement upon a preferential hiring list, less his net earnings in accordance
with the Woolworth formulas Backpay shall include interest at the rate of 6 percent
per annum , computed quarterly.
Having found that Respondent on May 28, 1963 , discharged Florence Alsbury
because of her activities in support of the Union , I shall recommend that Respondent
make her whole by payment to her of a sum of money equal to that which she would
normally have received as wages from the date of her discharge to the date of Re-
spondents offer of reinstatement , less her net earnings during said period . Backpay
shall include interest at the rate of 6 percent per annum , computed quarterly.
Upon the basis of the foregoing facts and upon the entire record in this case, I
make the following:
CONCLUSIONS OF LAW
1. Respondent 's operations occur in commerce within the meaning of Section 2(6)
and (7 ) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
B F. W. Woolworth, Company, 90 NLRB 289.
SAN ANTONIO MACHINE & SUPPLY CORP. 1121
3. By refusing on May 23, 1963, and thereafter, to bargain in good faith with the
Union as the exclusive bargaining representative of its employees, Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (5) and (1) of the Act.
4. By discriminating against employees in regard to hire and tenure of employ-
ment, thereby discouraging membership in the Union, Respondent has engaged in
and is engaging in unfair labor practices affecting commerce within the meaning of
Section 8 (a) (3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER 10
Upon the basis of the above findings of fact and conclusions of law and upon
the entire record in this case, it is recommended 11 that Respondent, San Antonio
Machine & Supply Corporation, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with United Steelworkers of America, AFL-
CIO, as the exclusive bargaining representative of its production and maintenance
employees.
(b) Discouraging membership in United Steelworkers of America, AFL-CIO, or
any other labor organization of its employees by discriminating in regard to their
hire and tenure of employment.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Upon request, bargain collectively with the Union as the exclusive representa-
tive of its production and maintenance employees and, if an understanding is
reached, embody such understanding in a written agreement.
(b) Offer those strikers who unconditionally applied for reinstatement on Novem-
ber 14, 1963, and Florence Alsbury, immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to their seniority and other
rights and privileges, and make each of them, and Florence Alsbury, whole for any
loss they may have suffered by reason of Respondent's discrimination against them,
all in accord with and in the,manner set forth above.
(c) Preserve and, upon request, make available to the National Labor Relations
Board or its agents, for examination and copying, all payroll records, social security
payment records, timecards, personnel records and reports, and all other records
necessary for the determination of the amount of backpay due under these recom-
mendations.
(d) Post at its San Antonio, Corpus Christi, and McAllen, Texas, facilities copies
of the attached notice marked "Appendix." 12 Copies of said notice, to be furnished
by the Regional Director for the Twenty-third Region, shall, after being duly signed
by Respondent's authorized representative, be posted by Respondent immediately
upon receipt thereof, in conspicuous places, including all places where notices to
employees are customarily posted, and maintained by it for a period of 60 consecu-
tive days. Reasonable steps shall be taken to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for the Twenty-third Region, in writing, within
20 days from the date of the receipt of this Recommended Order, what steps Re-
spondent has taken to comply herewith.13
10 In the event that this Recommended Order be adopted by the Board, the word "Order"
shall be deemed substituted for the words "Recommended Order."
11 In the event that this Recommended Order be adopted by the Board , the word
"ordered" shall be substituted for the word "recommended."
12 In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "a Recommended Order of a Trial
Examiner" In the notice. In the further event that the Board's Order be 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 "n Decision
and Order."
13 In the event that this Recommended Order be 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."
7 5 6-2 36-6 5 -v of . 14 7-7 2
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, as amended, we hereby notify our employees that:
WE WILL, upon request, bargain collectively with United Steelworkers of
America, AFL-CIO, as the representative of our production and maintenance
employees with respect to rates of pay, wages , hours of employment , or other
terms and conditions of employment.
WE WILL offer the employees who went on strike on May 27, 1963, and who
on November 14, 1963, applied for and were refused reinstatement , immediate
and full reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority and other rights and privileges , dismissing,
if necessary , any employees hired since May 27, 1963.
WE WILL make each employee whole for any loss of pay he may have suffered
by reason of our discrimination against him.
WE WILL offer immediate reinstatement to Florence Alsbury to her former
or substantially equivalent position , without prejudice to her seniority or other
rights and privileges , and make her whole for any loss of pay she may have
suffered by reason of the discrimination against her.
WE WILL NOT discourage membership in the above -named labor organization
or in any other labor organization of our employees , by refusing to reinstate
or in any other manner discriminating against our employees in regard to hire
or tenure of employment or any term or condition of employment , except as
permitted by Section 8 (a) (3) of the Act.
SAN ANTONIO MACHINE & SUPPLY CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to reinstatement upon application
in accordance with the Selective Service Act, and the Universal Military Training
and Service Act of 1948, as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 6617
Federal Office Building, 515 Rusk Avenue, Houston , Texas, Telephone No. Capitol
8-0611 , Extension 271, if they have any question concerning this notice or com-
pliance with its provisions.
Tru-Scale Products , Inc. and International Association of Ma-
chinists, AFL-CIO. Case No. 21-CA-5474. June 29, 1964
DECISION AND ORDER
On February 19, 1964, Trial Examiner Howard Myers issued his
Decision in the above-entitled case, finding that the Respondent had
not engaged in the unfair labor practices alleged in the complaint and
recommending that the complaint be dismissed, as set forth in his at-
tached Decision. Thereafter, the General Counsel filed exceptions
to the Trial Examiner's Decision and both the General Counsel and
the Respondent filed briefs.
Pursuant to the provisions of Section 3(b) of the Act., the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Jenkins].
147 NLRB No. 149.