Sunbeam Plastics Corp.

National Labor Relations Board - Board Decisions

Oct 10, 1963

144 N.L.R.B. 1010 (N.L.R.B. 1963)

1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 102, INTERNATIONAL LADIES GARMENT
WORKERS UNION, AFL-CIO, AND 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, we hereby notify you that:
WE WILL NOT establish or maintain a picket line at the premises of Henry
Rosenfeld, Inc., or Jerry Gilden Fashions, Inc., at 6303 Hudson Avenue, West
New York, New Jersey, nor in any other manner induce or encourage any
individual employed by Henry Rosenfeld, Inc., Jerry Gilden Fashions, Inc,
Vassar Manufacturing Company, Jean Fashions, Inc., Nathan Hoffman, d/b/a
Hoffman's Express, Railway Express Agency, Inc., or Imperial Trucking Com-
pany, or any other person engaged in commerce or in an industry affecting
commerce, to engage in a strike or a refusal in the course of their employment
to use, manufacture, process, transport, or otherwise handle or work on any
goods, materials, articles, or commodities, or to perform any services, nor will
we threaten, coerce, or restrain Henry Rosenfeld, Inc., or Jerry Gilden Fashions,
Inc., or any other person engaged in commerce or in an industry affecting
commerce, where in either case, an object is to force or require Henry Rosenfeld,
Inc., or Jerry Gilden Fashions, Inc., to cease doing business with Max Zall,
d/b/a B & Z Trucking Company.
LOCAL 102, INTERNATIONAL LADIES GAR-
MENT WORKERS UNION, AFL-CIO,
Labor Organization.
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, 744
Broad Street, Newark 2, New Jersey, Telephone No. Market 4-6151, if they have
any question concerning this notice or compliance with its provisions.
Sunbeam Plastics Corporation and International Brotherhood
of Operative Potters , AFL-CIO. Cases Nos. 25-CA-1590 and
25-CA-1615. October 10, 1963
DECISION AND ORDER
On May 17,1963, Trial Examiner Thomas F. Maher issued his Inter-
mediate 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 Intermediate
Report. He also found that the Respondent had not engaged in certain
other alleged unfair labor practices and recommended dismissal of
these allegations of the complaint. Thereafter, the Charging Union
and the General Counsel filed exceptions to the Intermediate Report
and supporting briefs. Respondent filed no exceptions.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with these cases to a three-member
panel [Members Leedom, Fanning, and Brown].
144 NLRB No. 96.
SUNBEAM PLASTICS CORPORATION 1011
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 Intermediate Report, the exceptions
and briefs, and the entire record in these cases, and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner with
the modifications noted herein?
1. In agreement with the Trial Examiner, and in the absence of
exceptions to his findings in this regard, we find that Respondent com-
mitted violations of Section 8(a) (1) of the Act beginning almost im-
mediately after it learned of the organizational activities of its em-
ployees on behalf of the Internatonal Brotherhood of Operative
Potters, AFL-CIO (herein called the Union). These violations are
here summarized because of their bearing upon our additional findings
as set forth below. The unlawful activity engaged in by Respondent's
officials included the interrogation of employees concerning their "feel-
ings" about the Union and those of others; the solicitation of their
"loyalty" to the Company, and their assistance in obtaining like in-
formation and commitments from coemployees; the conducting of a
"survey" through supervisors who rated the employees as "For Union,"
"Against Union," and in intermediate categories; the promise and
granting of raises to selected employees to dissuade them from union
affiliation; and threats to employees of plant shutdown,and job loss
in the event the Union won bargaining rights. In short, Respondent's
unlawful activity clearly constituted interference, restraint, and co-
ercion of its employees and amply indicated its union animus.
2. The Trial Examiner found that a layoff of 16 of Respondent's
employees, occurring in January, late February, and, again on March 9,
1962, was not, as alleged in the complaint, a violation of Section
8(a) (3) of the Act. We agree. He based his conclusion, as do we,
1 The Charging Union excepted to the ruling of the Trial Examiner denying its motion,
made at the hearing , to amend the complaint over the objections of the General Counsel
The effect of the requested amendment would have been the addition of the names of nine
strikers to the allegation that three strikers were unlawfully denied reinstatement to
their jobs at the conclusion of an unfair labor practice strike The General Counsel has
omitted these names from the allegation based upon his precomplaint investigation which
led him to believe that the nine strikers had engaged in misconduct , precluding them
from reinstatement. There is ample authority for the conclusion made by the Trial
Examiner that the Act lodges in the General Counsel sole discretion for the issuance,
scope, and content of the complaint . International Union of Electrical , Radio and
Machine Workers, AFL-CIO (Neco Electrical Products Corp. ) v. N.L R B , 289 F. 2d 757,
761-762 (C A.D.C ) ; Piasecki Aircraft Corporation v. N L.R.B , 280 F. 2d 575, 587
(CA. 3), cert denied 364 U . S. 933; Dallas Concrete Company, 102 NLRB 1292, 1293,
1296-1297 , enfd. 212 F . 2d 98 (C.A. 5) ; Sailors' Union of the Pacific, 4FL ( Moore Dry
Dock Company ), 92 NLRB 547, footnote 1. Accordingly, we find no merit in this exception
of the Charging Party.
2 We note and correct the following inadvertent errors in the Intermediate Report
which do not affect the Trial Examiner's findings and conclusions , or our concurrence
therein. In the third paragraph of section IV, D, the dates "1961 " should read "1962";
in section IV, G, 2 , paragraph 7, "8(b)" should read "8(d)".
727-083-64-vol. 144. -65
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
upon the finding that the layoffs followed, by only a brief period, the
cancellation of orders by three of Respondent's largest accounts and
the automation of a manually operated machine. Further, the layoffs
were accomplished along strict seniority lines, leaving several known
union adherents still employed. Finally, several of the laid-off em-
ployees were rehired when increased business warranted. Although
the timing of the layoffs, following almost immediately upon the heels
of the 8 (a) (1) conduct described above, raises some suspicion, we find,
that the General Counsel has not established by a preponderance of the
evidence that union activity, rather than the economic reasons ad-
vanced by the Respondent, was the true cause of the layoffs.'
In agreement with the Trial Examiner, we find that a number of
employees involved in the economic layoff were thereafter discrimina-
torily refused recall for reasons relating to their union activities.
3. The Trial Examiner also dismissed that portion of the complaint
which alleged that Respondent violated Section 8(a) (5) by failing
to bargain in good faith. The General Counsel and the Charging
Union excepted to this dismissal. We find merit in their exceptions.
The Union received a majority of the votes cast at a Board-conducted
election held on April 11, 1962. It was certified by the Board on
April 25, 1962, as the bargaining representative of Respondent's em-
ployees in an appropriate unit. A series of negotiating sessions was
held between the parties beginning on May 7, 1962, following sub-
mission by the Union of its basic contract proposals. Attorney Arthur
Donovan was the sole representative of the Employer at this first and
succeeding sessions, whilethe Union was represented initially by Inter-
national Representative Hackett and Sunbeam employees Williams
and Fritz.
As found by the Trial Examiner, Donovan opened the first meeting
with the statement that the Employer "could not see its way clear to
granting any increase in wages, or any economic benefits that would,
in any sense, be a wage increase," as position to which Respondent
adhered in all succeeding sessions. The record indicates that this was
an inaccurate presentation of Respondent's position, as Donovan's
own credited testimony conceded that he had been given prenegotia-
tion authority to "give a little bit of wages."
Although the failure to grant concessions, even though authorized,
would not ordinarily be considered indicative in any way of bad faith
in bargaining, this aspect of Respondent's strategy takes on a broader
significance in this case when viewed in the context of Donovan's
other conduct. Thus, at some of the meetings between the parties,
after explaining his position, Donovan asked Hackett, the Union's
representative, "What are you going to do about it, are you going
3 Extruded Alloys, Inc . and Lloyd J. Scheid, 141 NLRB 802 ; Low-Temp Manufacturing
Co., Inc., 129 NLRB 840.
SUNBEAM PLASTICS CORPORATION 1013
to strike?" "Go ahead and strike, I don't care, I have them going
all over the country." 4 Meanwhile, in the midst of negotiations and
before any union expression of an intent to strike, Respondent hired
a large number of employees it admittedly did not then need, for use
as possible future strike replacements. There is nothing in the record
to indicate that Respondent harbored any fears of unusual conse-
quences in the event the Union struck, nor anything which would
justify our viewing these measures by Respondent as merely "pre-
cautionary." Moreover, to disparage further the Union's position
at the bargaining table, several of these replacements, who were put
on the payroll in the midst of negotiations and while others in the
unit were still working, were hired at a rate of pay higher than that
currently earned by Respondent's most experienced employee.' The
parties never reached agreement on anything but the most preliminary
items.
'Considering Respondent's foregoing bargaining attitude in the
context of its total conduct, we are impelled to the conclusion that it
was the logical extension of an unlawful course of conduct by which
Respondent hoped to frustrate the possibility of arriving at any
agreement with the Union. While we are mindful of the admonition
of the Supreme Court that we do not sit in judgment upon the "sub-
stantive terms of collective bargaining,"' we must at the same time
find a refusal to bargain where it clearly appears from all the evidence
that the Respondent's primary purpose was not to reach some kind
of agreement with the Union, generous or otherwise, but rather to
reach no agreement at all with the Union.7 Respondent's hiring of
unneeded striker replacements at increased wages during negotiations,
while at the same time its negotiator flatly rejected the possibility
of economic concession and repetitiously suggested the alternative of
a strike, can have, in our view, no other purpose.' When considered
4 Witnesses Hackett, Fritz , and Williams testified that these statements were made by
Donovan at both the May 7 and 9 meetings in a form substantially as quoted Attorney
Donovan does not deny having made a statement similar to this at either or both the
meetings referred to. Accordingly, we find that Donovan made these references to a
union strike at these meetings . We find also , by Donovan's own admission , that Hackett
probably did not mention a possibility of a strike until May 22 at the earliest , and that
his reference at this time was to a strike vote which had been taken by the membership
and which authorized the union leadership to strike if it became necessary or advisable.
'The record shows that three applicants , not including supervisors , were hired before
and after the beginning of the June 7 strike at rates of pay higher than the $1.70 per
hour earned by Gibbs, Respondent 's most experienced and highly paid employee . Also, of
the 22 applicants hired as operators between June 1 and July 7, 1962, 10 were paid more
than the basic $1.35 starting rate for operators ; this, contrasted with the fact that of
the 29 operators hired by Respondent during the 9 months prior to June 1, 1962, not one
had received a starting rate higher than $1.35.
6N L R.B. v. American National Insurance Co, 343 U S 395, 401.
7 See Cox, "The Duty To Bargain in Good Faith," 71 Harv. L Rev. 1401, 1416-1417
(1958).
8 Cincinnati Cordage and Paper Company , 141 NLRB 72; Southwestern Porcelain Steel'
Corporation , 134 NLRB 1733.
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the light of Respondent's strong union animus and the interference
with employees' rights, Respondent's actions at the bargaining table
compel the conclusion that Respondent was not bargaining in good
faith as required by Section 8(a) (5) of the Act. We so find.'
ORDER
The Board 'adopts as its Order the Recommended Order of the
Trial Examiner with the following modifications :
(1) The following paragraph shall be inserted as paragraph 1(c)
of the Recommended Order :
(c) Cease and desist from refusing to bargain collectively with
International Brotherhood of Operative Potters, AFL-CIO, as
the exclusive representative of all employees in the appropriate
unit set out below. The appropriate unit is :
All production and maintenance employees of the Em-
ployer including the local truckdriver and floormen, but ex-
cluding office clerical employees, foremen, professional em-
ployees, guards, and supervisors as defined in the Act.
(2) The following paragraph shall be inserted as paragraph 2(b)
of the Recommended Order :
(b) Upon request, bargain collectively with International
Brotherhood of Operative Potters, AFL-CIO, as the exclusive
representative of all employees in the appropriate unit set out
herein, with respect to wages, rates of pay, hours of employment,
and other terms and conditions of employment, and embody any
understanding reached in a signed agreement.
(3) Paragraph 1(c) of the Recommended Order shall be renumbered
to read 1(d) and paragraphs 2(b) and 2(c) shall be renumbered 2(c)
and 2 (d), respectively.
(4) Add the following paragraph to the Appendix :
WE WILLbargain, upon request, with the International Brother-
hood of Operative Potters, AFL-CIO, as the exclusive representa-
tive of our employees in the appropriate unit set out herein, with
respect to wages, rates of pay, hours of employment, and other
terms and conditions of employment, and embody any understand-
ing reached in a signed agreement. The appropriate unit is:
All production and maintenance employees of the Em-
ployer, including the local truckdriver and floormen, but ex-
6 N L R.B. v. Reed c€ Prince Manu facturing Company, 205 F. 2d 131 , 134 (C A 1), cert.
denied, 346 U.S. 887 See also American Aggregate Company, Inc , and Featheriite Corpo-
ration, 125 NLRB 909 , enfd. 285 F . 2d 529 ( C A 5) ; Herman Sausage Co ., Inc, 122 NLRB
168, enfd . 275 F. 2d 229 (C.A. 5).
SUNBEAM PLASTICS CORPORATION 1015
eluding office clerical employees, foremen, professional em-
ployees, guards, and supervisors as defined in the Act.
MEMBER BROWN, dissenting in part:
I agree with my colleagues that the Respondent interrogated, solic-
ited, and threatened employees, and promised and granted them bene-
fits, in violation of Section 8 (a) (1) of the Act. I also agree with them
that the Respondent discharged employee Harrington and discrimi-
nated in the recall of certain laid-off employees and in the reinstate-
ment of strikers, in violation of Section 8 (a) (3) of the Act. Finally, I
join in their finding that the Respondent refused to bargain with the
Union in violation of Section 8(a) (5) of the Act. My disagreement
herein is with the majority's finding that the layoff of the 15 com-
plainants in February and March 1962 was justified by business con-
siderations. Based upon the facts and circumstances hereinafter re-
cited, I would find that the layoff of all 15 complainants is attributable
to Respondent's opposition to the Union and was an integral part of its
efforts to undermine the Union.
As appears from the majority opinion, beginning almost immedi-
ately after it learned of its employees' efforts bn behalf of the Union,
Respondent engaged in systematic and persistent efforts to frustrate
the Union's organizational campaign. About this time, it terminated
Harrington because of her union activities. On February 24 and 25,
three other complainants were laid off. Shortly thereafter, Respondent
caused its supervisors to rate its employees as to whether they were
"For Union," "Think they are for Union," "Doubtful," or "Against
Union." This rating of employees was followed by the layoff of 12
others who are complainants-1 on March 1 and the rest on March 9,
1962. Following this layoff, Respondent Vice President Gach asked
Supervisor Francis if he thought the remaining employees were loyal
to the Company and stated that most of those laid off had been trouble-
makers, specifically mentioning Crabtree, Dudley, Smith, and Smiley.
He also expressed doubt that very many of them, ifany, would be called
back, stating that the aforementioned four employees would not be
called back because they were troublemakers and thought to be engaged
in union activities.10 More immediately before the representation elec-
tion scheduled for April 11, Respondent again evaluated its employees
in terms of their union sympathies and busied itself in further unlaw-
ful activity designed to influence the employees into voting against the
Union in the electon. When, despite all these efforts, the Union won
the election and was certified as bargaining representative of the em-
ployees, the Respondent refused to bargain with it as required by the
Act. Later, Respondent discriminated in the matter of the recall of
11 Inasmuch as Francis ' testimony here is uncontradicted and conforms to the pattern of
conduct found to have been engaged in by Gach, I find it worthy of belief.
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'Crabtree, Dudley, Smith, Smiley, and four others of the group under
'discussion, all as found by my colleagues.il
I believe that these facts, considered in the light of the entire record,
compel the conclusion I would reach on this aspect of the case. While
my colleagues are suspicious of Respondent's defense that the layoffs
were dictated by economic necessity, they have accepted it mainly be-
cause the layoffs "were accomplished along strict seniority lines." 12
But, Respondent's utilization of seniority is alone not decisive in the
circumstances of this case. Evaluation of this factor must, of course,
also take into account the reason for, or purpose of, the layoffs. On
this issue, the record shows, in addition to the evidence recited above,
that, as found by the Trial Examiner, all the complainants in question,
except Martin and Klump, were known to Respondent to have been
members in, or active on behalf of, the Union.13 Further, it appears
that, subsequent to the layoffs, remaining employees were required to
work overtime performing work such as had been engaged in by laid-
off employees, nonproduction employees were assigned to such work,
and the children of Gach assisted in the plant during weekends.
This record demonstrates to me that the layoff of all these 15 com-
plainants was not required because of lack of work but was, instead,
further action taken by Respondent to thwart the Union's organiza-
tional drive and thus avoid, as it later did, an obligation to bargain
with the Union. In laying off this group of more junior employees,
virtually all of whom were union adherents to Respondent's knowledge,
it served Respondent's purpose, at the same time giving the appearance
of legitimacy to the layoff, to proceed along seniority lines to the ex-
tent that it did. Consequently, I would find the layoffs to have violated
Section 8(a) (3) of the Act, and I would issue an appropriate order
remedying Respondent's discrimination against the complainants.
11 Inasmuch as I would find discrimination in the layoffs , I need not decide whether addi-
tional complainants were discriminated against with respect to recall.
12 My colleagues ' finding that "strict" seniority was followed in the layoffs is not al-
together established by the record . For example , Rosenmeier , the only noncomplainant
laid off, whose union membership was not proven , was hired on February 14, 1962, and
laid off on March 9, whereas Youngblood , who was hired on December 1, 1961, and em-
ployed in the same classification, was laid off on March 1 . Also, Rhodes , whose classifica-
tion is not disclosed, was hired on January 6, 1962, later than almost all the others, and
was laid off on February 24, before any other employee.
13 As for Martin , Respondent ' s suspicion of union interest by him is indicated by Re-
spondent's inquiries of employees as to his union sentiments.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed on June 8 and August 2, 1962, by International Brotherhood
of Operative Potters, AFL-CIO, hereinafter referred to as the Union or Charging
Party, the Regional Director for the Twenty -fifth Region of the National Labor
Relations Board , herein called the Board, issued complaints on behalf of the
General Counsel of the Board against Sunbeam Plastics Corporation , Respondent
herein , on July 31 and, with an order of consolidation, on October 17, 1962, and
SUNBEAM PLASTICS CORPORATION 1017
an amendment thereto issuing on October 30, 1962, alleging violations of Section
8(a)(1), (3), and (5) of the National Labor Relations Act, as amended (29 U.S.C.
Sec. 151, et seq.), herein called the Act. In its duly filed answers to the aforesaid
complaints, Respondent, while admitting certain of their allegations, denied the
commission of any unfair labor practice.
Prior to the issuance of the complaint in Case No. 25-CA-1615, Respondent filed
with the Regional Director a motion to consolidate the instant case with Cases Nos.
25-CB-497 and 25-CB-497-2 a case related to the instant one wherein charges
were filed by Respondent herein, and in which the Charging Party herein was named
a respondent. Trial Examiner George J. Bott , to whom the motion was duly re-
ferred, denied it by order of August 20, 1962.
Pursuant to notice a hearing was held before Trial Examiner Thomas F. Maher
in Evansville, Indiana, on January 15, 16, and 17, 1963. All parties were represented
and afforded full opportunity to be heard, to introduce relevant evidence, to present
oral argument, and to file briefs with me. Briefs were filed by all parties on
March 4, 1963, the Charging Party's brief incorporating argument applicable to
Case No. 25-CB-497, 497-2, as well as to the instant case.'
Upon the conclusion of the General Counsel's case-in-chief counsel for the
Charging Party noted the failure of the complaint in Case No. 25-CA-1615 to
include in its paragraph 7, the names of certain employees of the Respondent men-
tioned in the previously filed charge as having engaged in a strike and who, after
having unconditionally offered to return to their jobs, were refused reinstatement.
These employees were Mary Goebel Allen, Helen Arrick, Charles Brazelton, Dre-
metria Fritz, Douglas Gibbs, Sandra Paul, Charles Welch, Gordon Wells, and
James Williams, each of whom was excluded by the Regional Director from para-
graph 7 of the complaint for the stated reason that they had been found, upon
investigation of the Regional Director, to have engaged in misconduct during the
course of the aforementioned strike. Relying upon Section 10(b) of the Act counsel
for the Charging Party thereupon moved that I, in the exercise of the discretion
granted me by that section, amend the complaint in Case No. 25-CA-1615 2 by
adding the names of the aforementioned employees to paragraph 7, thereby insuring
to them the benefits of such remedy as may result from a determination of this
case. I denied the motion at that time, indicating to counsel as I did that no depriva-
tion of due process could result from my action inasmuch as Section 10(d) permitted
the reopening of the record in a case at any time prior to its filing in court, and that
the Board, after due consideration of my findings in this proceeding and in the
related case, International Brotherhood of Operative Potters, AFL-CIO, Cases Nos.
25-CB-497 and 25-CB-497-2, would have full opportunity to remedy such inequities
as might ultimately reveal themselves.3
Upon a review of statutory authorities I am of the opinion and conclude that I
am vested with no discretion in the matter and accordingly reaffirm my denial of
Charging Party's motion. It is true, as claimed, that Section 10(b) does provide
in part that a complaint "may be amended by the . . . agent . . . conducting the
hearing," and that the Board's Rules and Regulations 4 affirm the provisions by
stating, in Section 102.17, that this may be accomplished at the hearing, "Upon
motion by the Trial Examiner designated to conduct the hearing." Indeed these
provisions have been a part of the basic law since the enactment of the original
Wagner Act (49 Stat. 449) and appeared in the Board's Rules and Regulations
i With the acquiescence of all the parties, I noted upon the record my intention of taking
official notice of the record in International Brotherhood of Operative Potters, AFL-CIO,
Cases Nos 25-CB-497 and 25-CB-497-2, heard by me immediately following the hearing
In the Instant matter.
2 The pertinent portion of Section 10(b) upon which counsel specifically relied states
as follows:
Any such complaint may be amended by the member, agent, or agency conducting the
hearing or the Board in Its discretion at any time prior to the issuance of an order
based thereon
'It is to be noted that in the Operative Potters case , the following employees partici-
pated in the several incidents found to have occurred: Dremetria Fritz, Douglas Gibbs,
Sandra Paul, Gordon Wells, and James Williams. Additionally, it was found that on
an occasion involving the refusal of pickets to move from in front of a truck, Mary Goebel
Allen, Charles Brazelton, and Sue Bottoms were in the group. Employee Bottoms' name
appears In paragraph 7 of the complaint ; the names of the other two do not
4 Series 8, as amended.
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
applicable to that statutes as Section 7. What counsel's argument fails to take into
account, however, is that a purpose of the Taft-Hartley amendments to the Wagner
Act "was to effect a separation of the prosecuting and adjudicating functions within
the Board." 8 Thus by Section 3(d) of the amended Act, the General Counsel "shall
have full authority, on behalf of the Board, in respect of the investigation of charges
and issuance of complaints under section 10, and in respect of the prosecution of
such complaints before the Board." In this seeming contradiction between two
explicit statutory provisions, then, several judgments must necessarily be noted.
First, it is to be noted that the provision relied upon by counsel for the Charging
Party, Section 10(b), continues in the amended Act as originally drafted in the
Wagner Act. Secondly, Section 3 (d) of the amended Act was enacted, as previously
noted, to effect a separation of powers within the Board.7 As it is a well-established
rule of statutory construction that in instances of such apparent contradiction, the
intent of Congress, the nature of the evil to be corrected by the proposed legislation,
and the end to be achieved by it are the proper determinants of the precise meaning
of the provision in question.8 Under such a test and in view of the expressed
purposes of Section 3(d) of the amended Act, I have no hesitancy in rejecting any
view that would interpret Section 10(b) as vesting in my discretion the right to
permit amendment to a complaint over the objection of, or indeed without the
acquiescence of the General Counsel or those who speak for him.9
Upon consideration of the entire record in this case, including the briefs of the
parties, the exhibits and the transcript of the testimony in Cases Nos. 25-CB-497
and 25-CB-497-2, and my findings and conclusions in that case, and upon my
observation of the demeanor of each of the witnesses testifying before me, I make
the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE RESPONDENT
Sunbeam Plastics Corporation is an Indiana corporation with its plant and
principal place of business located in Evansville, Indiana, where it is engaged in the
manufacture, sale, and distribution of plastic products. In the course and conduct of
its business, the Company annually produces plastic products valued in excess of
$100,000, of which products valued in excess of $50,000 were shipped from said plant
directly to States of the United States other than the State of Indiana. It is conceded
in the pleadings, and I accordingly find and conclude, that Respondent is engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
IT. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Operative Potters, AFL-CIO, and its Local 322,
are conceded to be labor organizations within the meaning of the Act and I so con-
clude and find.
M. THE ISSUES
1. Evidence of interrogation, solicitation of surveillance, individual wage increases,
and threats to close plant establishes a violation of Section 8(a) (1).
2. The economic justification of the employee layoff.
3. The discriminatory refusal to reinstate laid-off employees.
4. The legality of so-called "hard bargaining."
5. The discriminatory refusal to reinstate unfair labor practice strikers.
5 Series 3, effective November 26, 1943
8 Haleston Drug Stores, Inc. v N L R B , 187 F 2d 418, 421 (C A. 9), cert. denied 342
U.S 815. Cf N.L R B. v. D. B. Lewis, President, Lewis Food Company, et al., 249 F. 2d
832, 838 (C.A 9)
7 Haleston Drug Stores, Inc v N L R B., supra. Remarks of Senator Taft outlining the
purpose of the proposed Section 3(d), 93 Cong. Rec 6859, June 12, 1947
8 Local Lodge No 1424, International Association of Machinists, AFL-CIO, etc. (Began
Manufacturing Co ) v N.L R B., 362 U S. 411, 418, footnote 7. "[I]t is the entire Act
and not merely one portion of it, which embodies 'the definitive statement of national
policy.' " See also N.L R B. v Hearst Publications, Inc., 322 U.S. 111, 124, and cases
cited
9 See also the Board's delegation of authority to the General Counsel in matters relating
to case handling: "BOARD MEMORANDUM DESCRIBING THE AUTHORITY AND ASSIGNED
RESPONSIBILITIES of THE GENERAL COUNSEL OF THE NATIONAL LABOR RELATIONS
BOARD (EFFECTIVE APRIL 1, 1955). [20, Fed. Reg. 2175 1"
SUNBEAM PLASTICS CORPORATION 1019
IV. THE UNFAIR LABOR PRACTICES
A. Introduction
Organization among Respondent's employees commenced on February 10, 1962,
with the visit of employees Roscoe Crabtree and James Williams to Harold Hackett,
International representative of the Union. Hackett gave them blank union authoriza-
tion cards, whereupon they procured signatures of a considerable number of the
employees in the bargaining unit. On the strength of these cards a representation
petition was filed with the Board on February 27, 1962, in Case No. 25-RC-2176.
Thereafter, on March 21, Respondent and the Union executed a stipulation agree-
ment for a consent election setting the election date for April 11. In the election
then held the Union obtained, a majority of the votes and on April 25 was certified by
the Board as the employees' bargaining representative.
During the period described above and thereafter there occurred three major
episodes which relate directly to the allegations of the complaint. These were (a)
the Respondent's systematic and persistent efforts to defeat the Union's campaign
to represent its employees, (b) the period of bargaining between Respondent and the
Union from the date of the Union's certification on April 25 to the calling of a
strike on June 6, 1962, and (c) the strike which extended to July 6 and resulted
in the refusal of the Respondent to recall those who took part in it.
B. Interference, restraint, and coercion
1. Interrogation and solicitation of employee vigilance
The antipathy of Respondent's officials to the Union and to its progress among
the employees first manifested itself by their curiosity. Thus within a few days of the
filing of the petition Vice President Peter Gach began his quest for information about
the Union, the progress of its organizing campaign, and the degree of employee
interest that had been generated; while at the same time he suggested to the employees
the means whereby they might assist the Company in resisting the Union. In a con-
versation in his office with employee Dremetria Fritz he referred to the coming elec-
tion suggesting that the plant was to small to be unionized. He then inquired of
Fritz where her husband worked and if he belonged to a union. He made the same
inquiry of Fritz concerning employee Delores Johnson's husband. Gach then told
Fritz how difficult it was for him to question the employees about their union
activities and suggested that she speak to some of them, including Johnson, and
"let him know what they said, how they felt." 10
Around the same time Gach inquired of employee Arrick, in a conversation with
her in his office, if she knew anything about union cards being passed out at work.
Then, after complimenting her on her loyalty to the Company, stated, as he had
to Fritz, his opposition to the Union, telling her to let him know if she heard anything
about it. Several weeks thereafter Gach had a second conversation with Arrick
in his office. This time he inquired concerning the employment of a number of
the employees' husbands, and whether or not they belonged to a union at their place
of work He then asked her if she would talk to some of the other employees and see
how they felt about the Union, specifically naming employees Allen, Dudley, and
Bottoms And on still another occasion during this period Gach asked her if she
were going to a union meeting. When she said that she was, Gach expressed his
satisfaction with the idea and suggested that she "see who all goes and what they
talk about." 11
Employee Roy Thompson's experience with Gach followed the same pattern.
In early March before the election and before Thompson was laid off, Gach told
him they were getting a union in the plant and asked how he felt about it. And
under similar circumstances and during the same period employee Harold Martin was
summoned by Gach to his office and was asked if he had heard anything about union
10 The undenied testimony of Fritz whose conversation with Gach was thereafter dis-
cussed with employee Arrick, according to Arrick's credited testimony
While I do not credit Fritz generally and did not credit her at all in Case No. 25-CB-497,
I do credit her in specific instances, notably those in which her testimony is corroboated
by the testimony of credible witnesses. In so doing I recognize no obligation to eliminate
all of the testimony of a witness whom I discredit. That the witness' testimony may not
in substantial part be relied upon for one reason or another does not establish that a
witness is completely unreliable, at all times, under all circumstances. N L.B B v Uni-
versal Camera Corporation, 179 F. 2d 749, 754 (C.A 2).
11 The credited, undenied testimony of employee Arrick
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activities. Martin thereafter had several conversations with Gach who on each oc-
casion inquired about the Union's activity in the plant, and about specific employees,
including Roscose Crabtree, and whether they had anything to do with the Union.
And finally Gach, after explaining management's handicap in combating the Union,
asked Martin to talk with the employees and see if they wanted a union or not.12
As will be discussed in detail hereafter, a substantial layoff occurred during the same
preelection period. Among those laid off was employee Carolyn Youngblood whom
Respondent recalled for several days of work to permit her to obtain unemployment
compensation. In the course of her conversation with President Carson concerning
these arrangements he inquired of her how Mary Goebel Allen felt about the Union,
at the same time suggesting that Youngblood mention to Allen the Company's interest
in her.12
During the same period in which the events detailed above occurred, Vice President
Gach called employee Alvah Smiley to the office, and after telling him he was being
given a raise in pay, asked Smiley if he had heard anything about the Union. He
then urged Smiley to remain loyal to the Company and to report to him any union talk
that was going on.14
In addition to the foregoing instances of questioning of employees by Vice Presi-
dent Gach and of requests by him that employees in turn question and otherwise re-
port other employees to the Company there is the testimony of employees Williams,
Gibbs, Wells, Meiers, and Crabtree that they too were questioned along the same
lines during the same period. While I do not rely upon the testimony of any of these
five witnesses generally, I do find, as in the case of employee Fritz (supra, footnote
10), that what they have described conforms to a pattern followed by Gach in his
contacts with other employees. Accordingly I conclude and find that in such respects
the testimony of the above-mentioned five may be accepted as further evidence of
Gach's activities.15
2. Respondent's awareness of employee union sentiment
Quite apart from the management's individual treatment described above, or-
ganized efforts were adopted to determine the Union's penetration in the plant.
Shortly after the first layoff supervisors were called to President Carson's office and
given a rating sheet on which were listed the names of employees, with spaces
opposite each name for the purpose of checking the following categories: "For
Union," "Think they are for Union," "Doubtful," and "Against Union." All em-
ployees were classified by each of the supervisors and the results collated by Gach
and Carson 16 The results of this tabulation do not, however, appear in the record.
General Counsel makes no issue of the use of this list and its discussion among
the various supervisors. In fact he specifically views this activity not to be a
12 The credited, undenied testimony of employee Martin.
13 The credited testimony of employee Youngblood
Employee Jerry Sampson credibly testified that Carson asked him on another occasion
shortly before he quit in March 1962 whether he had seen a notice on the Company
bulletin board stating, "We have two unions trying to get your dues and your votes. We
hope they get neither." General Counsel does not urge nor do I find that such a state-
ment constitutes a violation of the Act
14 The credited, undenied testimony of Smiley.
151 make no finding with respect to employee Charles Welch's credited testimony that
on an occasion 3 months after the incidents detailed above Gach asked him if he would
walk out if the Union were to call a strike This matter was neither alleged in the com-
plaint nor otherwise litigated and I accordingly reject it Local 542, International
Union of Operating Engineers, AFL-CIO (Elmhurst Contracting Co., Inc. (Division of
Hagan Industries, Inc.) ), 141 NLRB 53
13 The testimony of employee (formerly Foreman) Jerry Gries, corroborated by Foreman
Robert Francis.
On the stand Foreman Francis testified as follows:
Q Then when you told the Company, Mr. Carson and Mr Gach, that Mr. Crabtree
was loyal were you lying then, is that right?
A. That's right.
While I am not disposed, because of this stated proclivity, to credit him generally, I do
accept his testimony concerning the existence and use of the rating sheets. Respondent's
admission that these sheets have been destroyed, and Carson's failure to testify with
respect to them, together with repeated references to the same procedure by other wit-
nesses, is ample support of Francis' testimony on this matter.
SUNBEAM PLASTICS CORPORATION 1021
violation of the Act, inasmuch as it constitutes a series of transactions within the
managerial hierarchy. However, I do accept evidence of this activity as proof
that Respondent was actively identifying union adherents.
Furthermore, a review of the testimony of credited witnesses discloses Respond-
ent's knowledge of the union activities of the following employees: Roscoe Crabtree,
Charlotte Freudenberg, Sandra Paul, Margaret Harrington, Alvah Smiley, Roy
Thompson, James Williams, Helen Arrick, Sue Bottoms, and Mary Goebel Allen.17
In addition, Respondent Officials Gach and Kempf made frequent inquiries, both
directly and through third parties, as to the union sentiments of employees Dremetria
Fritz, Douglas Gibbs, Harold Martin, and Delores Johnson. And it is a matter of
record that at all relevant times all of the above-named employees (excepting only
Martin), and employees Shirley Dudley, Wilma Kniffen, Ronald McGillen, Marvin
Mayes, Paul Rhodes, Mildred Smith, and Carolyn Sue Youngblood had signed
union membership cards. This fact, coupled with President Carson's repeated avowal
of awareness of matters throughout the plant, persuades me that the union member-
ship and activities of all the employees named above were known to the Respondent
and I so find and conclude.18
3. Threats and promises
During the course of its questioning and checking of employees concerning their
union sympathies Respondent also employed more direct persuasion to emphasize
its opposition to the Union in the coming election. Most frequent was the statement
to an employee that the plant would close up or that business would drop off if the
Union won. Thus, in early April Mary Goebel Allen, in whose union membership
Gach had previously shown interest (supra), was given a 5-cent raise. Accompany-
ing his announcement of the raise was his remark that the Union was trying to get in
and that the plant was too small for one. He then commented on Allen's recent
marriage and homebuilding plans and told her he did not think she could afford to
be out of a job and that she "would be if the plant was shut down if the Union
came in." is
In the conversations with employees Martin and Sampson the theme of closing
the plant continued. Thus, in early March, Gach told Martin that the Company
could not afford to pay union wages and as a result "it would liable to just fold up."
Thereafter in a conversation with Foreman Francis, Martin was told that if the
Union got in there was a likelihood that the Company would lose its customers,
referring particularly to the Gillette account.20 Similarly around the same time Gach
discussed the Union with employee Sampson telling him the Company appeared to
be ahead in the contest and then saying, "If the Union does get in the Company
would shut down."
About 2 weeks before the election employee Douglas Gibbs was called to the
office by Gach and after being assured of a "bright future" with the Company was
given a 10-cent increase 21 And earlier, on February 1, Gach had had a similar
conversation with employee Smiley in the process of giving him a 5-cent increase
and assuring him of a future with the Company. Then, as previously noted (supra),
he asked Smiley what he knew about the Union in the plant and suggested that the
union talk be reported to management.22
17 The credited, undenied testimony of employees Gries, Martin, Bottoms, and Thompson ;
and in the cases of Paul, Williams, and Allen, and the admissions of President Carson
whom I do not credit generally.
11 On one occasion Carson testified, "In a small plant you hear things all day long
from a million people and to pinpoint a date or a person is impossible " And again, dis-
cussing his source of knowledge of the employees' strike vote, he stated, "There again
it's a small plant and I couldn't say on the witness stand who told me or exactly what
was said except that somebody heard there was to be a strike vote . .. .
10 The credited, undenied testimony of employee Allen.
20 The credited, undenied testimony of Martin, corroborating Foreman Francis' undenied
testimony that Gach had told him of the possible loss of the Gillette contract if the
Union came in
21 The undenied testimony of Gibbs whom I do not credit generally but whom I do
rely upon here; this instance being part of a pattern established by the credible testimony
of other witnesses.
22 The credited, undenled testimony of employee Smiley.
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Summary and conclusions respecting interference , restraint, and coercion
Detailed above are the stereotype examples of interference , restraint, and coercion.
Thus it is evident that from the inception of the organizing campaign of its employees,
Respondent expended considerable time and effort in questioning its employees
concerning their union membership and activities as well as the membership and
activities of their fellow workers . On innumerable occasions it solicited the support
of these employees not only to persuade their fellows to the Respondent 's opposition
'viewpoint but to seek out for Respondent such information as they could obtain
concerning union sentiment and activity about the plant and to report it back to
management . Similarly, during the same period preliminary to the employee elec-
tion , Respondent's officials repeatedly initiated conversations , the substance of which
were that the advent of the Union would result in a drop in business , loss of cus-
tomers, a shutdown of the business , and other dire consequences . And in an effort
to bolster support for its opposition to the Union , Respondent gave wage increases
to selected employees upon whom it relied , mistakenly it now appears, for aid and
support in its own opposition campaign.
Citation of authority is unnecessary to establish that such intrusions by manage-
ment into the organizing affairs of its employees , either as a group or individually,
constitutes the classic type of interference , restraint , and coercion contemplated by
the proscriptions of Section 8(a)(1) of the Act. I accordingly find and conclude
that Respondent has violated the Act in this respect.
In addition to the foregoing , there was considerable testimony directed to that
subparagraph of the complaint alleging an unlawful threat to discharge in reprisal
for union membership and activity supposedly made by Foremen Barta and Kempf.
As this allegation is supported only by the testimony of employees Gibbs, Francis,
Fritz, and Wells , none of whom I credit generally, I would make no finding that
such threats occurred . Moreover, upon the credible testimony of employees Arrick
and Freudenberg , I find that Respondent never threatened , to their knowledge, that
women employees would be laid off if the Union came in.
C. The layoffs
1. The mechanics of the layoff
In the context of the foregoing activity , during a period bounded by the filing of
a representation petition and the holding of the Board election , Respondent laid
off a number of employees for what it claims were reasons of economic necessity.
President Carson claims, and the record supports him, that strict seniority was
followed. The employees laid off and the dates of their layoff and last hiring follow:
Employees Last
hired
Laid off Employees Last
hired
Laid off
Roscoe Crabtree ______________ 11-10-61 3-9-62 Marvin Mayes _______________ 1-4-62 3-9-62
Shirley Dudley___________ 9-13-61 3-9-62 David Meiers__ ______________ 10-16-61 2-25-62
Charlotte Freudenberg ------- 9-15-61 3-942 Paul Rhodes_________________ 1-6-62 2-24-62
Margaret Harrington --------- 9-25-61 (') Alvah Smiley________________ 8-29-61 3-9-62
Delores Johnson______________ 9-5-61 3-9-62 Mildred Smith ______________ 10-2-61
3-9-62
Jacqueline Klump____________ 9-15-61 3-9-62 Roy Thompson______________ 12-1-61 3-9-62
Wilma Kniffen_______________ 12-6-61 3-9-62 Carolyn Sue Youngblood ----- 12-1-61 3-1-62
Ronald McGillen _____________ 12-30-61 2-25-62 Harvey Rosenmeier __________ 2-14-62 3-9-62
Harold Martm _______________ 1-20-62 3-9-62
• Supposed to have quit (infra, section IV, E).
With the exception of Rosenmeier , 23 Martin, and Klump , whose union interest or
membership has not been proven, it has been found ( supra ) that all of the remaining
employees listed above were known to Respondent to have been either members of
and, in many cases , active in behalf of the Union.
23 This employee is not alleged as one of the employees discriminatorily laid off, nor is
he shown in the record to have been a member of or active in behalf of the Union.
SUNBEAM PLASTICS CORPORATION 1023
When the layoff noted above was put into effect the following employees continued
at work:
Employees: Last hired
Helen Arrick_____ [sic] 2-29-59
Earl Ashby____________ 2-25-57
Frances Ashby_________ 5-24-55
Yvonne Sue Bottoms___ 10-16-57
Dremetria Fritz________ 9-23-57
Douglas Gibbs_________ 10-4-60
Mary Goebel Allen______ 1-8-60
Jerry Gries____________ 1-13-61
Gerald Hunter ---------- 8-28-61
Employees: Last hired
Harold Pace____________ 2-5-62
Sandra Paul___________ 3-16-61
Winona Pennell_______ 10-10-56
Norman Retter__________ 1-8-49
Jerry Sampson---------- 8-3-60
Paul Schriber__________ 9-23-53
Gordon Wells__________ 3-37-61
James Williams, Jr_..._ 24 3-25-61
With respect to the employees on the latter list, i.e., those not laid off , it is to be
noted that the following have already been found to have been active in or members
of the Union and this fact known to Respondent ( supra ): Arrick, Bottoms, Fritz,
Gibbs, Allen, Paul, and Williams. Employee Wells' union membership and ac-
tivities do not appear to have been established at the time of the layoff.
2. Respondent 's economic justification
It is Respondent's contention that during January, February , and March, 1962,
business and business prospects were at such a low ebb that it was forced to curtail
its work force . President Carson testified at considerable length with respect to
the Company 's financial and production situation , as well as to other matters con-
sidered herein . As previously noted, I do not rely upon Carson 's testimony
except in such instances as he is corroborated by the testimony of credible
witnesses . I do, however , make a further exception and that is with respect to his
detailed testimony concerning the operations of the business , which testimony I rely
upon , supported as it is by files and records , including those introduced by General
Counsel, whose validity are unquestioned in the record 25 Carson , in his account
of the Company 's operations and conditions , impressed me as being forthright and
accurate in the details to which he was testifying. Nor am I persuaded to the
contrary by the fact , relied upon heavily by the General Counsel, that numerous
items of his testimony were at variance with items contained in an affidavit prepared
by him and notarized by his attorney 7 months prior to the hearing. A reading
of the many and complicated questions put to him on the witness stand explains
understandably why his answers would on occasion differ from materials studiously
prepared 7 months earlier . For this reason , therefore , and because of my im-
pressions of Carson as he testified on these specific matters, I accept his testimony
in all instances where it differs in any manner from the affidavit previously given.
In any event , upon my review of the differences between the statements of Carson in
his affidavits and allegedly different statements in his testimony , I find that they
are neither substantial nor crucial.
Respondent 's description of conditions in early 1962 discloses a plant beset by pro-
duction failures and by a resulting loss of business. Thus in December 1961 and
January 1962 the Gillette Razor Blade Company returned , as defective , 1,500,000
plastic caps used on its product, "Right Guard." The Company first sought to
separate the good caps from the bad , to avoid regrinding the material and molding
more caps , and it used a temporary work force to do so. When this arrangement
failed after 6 weeks to produce satisfactory results it was abandoned , the temporary
help being laid off and the work being reground and remolded.
Meanwhile Respondent was having difficulty making a small plastic paint cup for
a manufacturer of toy paint sets, Palmer-Pann . Over 1 million of these items had
just been rejected by the customer , who returned them together with a device designed
to sort out the imperfect items and requiring two workers to operate it. Meanwhile,
the mold for this Palmer-Pann job was causing trouble and production was seriously
24 The two lists of employees set forth above and the related information contained
therein was obtained from a compilation of company records submitted into evidence by
the General Counsel.
25 In his brief to me counsel for the General Counsel characterizes specific documents
as "purported invoices" and "a purported letter from Revlon " In the absence of proof
of their spurious character I reject the implication that the documents are such.
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
curtailed. The last shipment of paint cups was sent out on January 29 26 and the
customer, dissatisfied with the quality of the work, requested that the mold be
returned to it. This was done finally on March 16, thus marking the end of that
job, and a cancellation of the remaining order of 1,800,000 paint cups.
About the same time Respondent was engaged in production of a large plastic
cap for a Revlon promotional program. The last delivery was on February 27.
Thereafter on March 2 Revlon notified the Company it would not renew its order
at any time in the immediate future.
Respondent had similar difficulties with another customer, Kits, Inc., for whom
it manufactured a molded archery grip. Over the previous year Respondent had
filled all of this customer's requirements, doing so on a sporadic basis. So long
as the Respondent retained the customer's mold for the item it entertained prospects
of repeat orders in 1962. It had received none in January or February. Kits, Inc.,
however, notified Respondent on February 23 that other sources of supply would
henceforth be used by it and requested the return of its mold forthwith.
In addition to the foregoing difficulties, Carson testified to a continuing problem
with one of its molding machines that was supposed to be fully automatic, but
which was almost continuously turning out faulty work and required one person
on each shift to maintain proper functioning. This was straightened out eventually,
thereby eliminating the need for the one operator per shift. Similarly, about the
same time another machine, normally requiring an operator under each shift, was
automated, thus eliminating the need for operators for it.
The job losses referred to above were on what are known as custom jobs. In
addition, Respondent during late 1961 and early 1962 was producing plastic caps
for aerosol containers, e.g., spray paint and deodorant cans. These were made
from Respondent's own molds and were stored in stock and sold on order. This
was known as the proprietory inventory, and it had been built up during these months.
During the same period, Respondent resolved to abandon the plastic tile production
it had engaged in and to concentrate on caps for the aerosol cans, as described above.
All of the foregoing, therefore, resulted in two conditions. One: fewer personnel
were required because of the automation of the machines, the elimination of the
corrective techniques necessary to salvage the defective production, and the aban-
donment of plastic tile production. Second: the strain on company resources oc-
casioned by poor production and loss of customers resulted in a depressed fiscal
situation that could be alleviated only by curtailment of personnel. All the while
sales continued, but out of inventory already produced, and not so much as previously
to established customers.
Under the circumstances related above, based upon Carson's testimony and docu-
ments supplied by Respondent and General Counsel, it appears to me that things
at the plant were in poor shape. Although I am neither an expert cost accountant
nor production engineer, commonsense suggests that when customers withdraw their
business and the machines constantly malfunction positive action is in order.27
3. Conclusions respecting the layoff
General Counsel objects to Respondent's reaction to its difficulties, namely, re-
ducing the working level of its staff. I do not presume to substitute my judgment
in such matters for the judgment of men like Carson and Gach who are experienced
in running a reasonably successful business. Accordingly, it is not within my
province to determine, for example, whether their decision to eventually eliminate
women operators (infra) was a sound one, or whether shifting foremen about to
do rank-and-file work after the layoff and using Gach's teenage children were wise
uses of manpower. I am called upon to determine if there was economic justifica-
tion for the layoff of employees in late February and early March. I find and
conclude upon the facts detailed above that there was.
'a Carson's affidavit gives this date as February 16 This difference of date is in-
significant for purposes of describing financial conditions of the plant during the first
3 months of 1962.
27 In a letter to the employees prior to the election and in a speech delivered during the
same period President Carson stated, among other things, that if a strike were to be
called against the Company the customers for whom they were producing special jobs
would recall their molds I judge this to be a legitimate observation on the normal re-
sult of a strike in the plastics industry and certainly not to be a threat to curtail business
if the Union comes into the plant, as insisted by General Counsel.
SUNBEAM PLASTICS CORPORATION 1025
Having so found, I am now presented with the further determination of whether
or not this economic justification was employed in a discriminatory manner. Carson
testified that the layoff was by strict seniority. An inspection of the lists of lard-off
and retained employees substantiates Carson's testimony. Thus it appears that on
the list of laid-off employees the individual with the most seniority and presumably
the last one on the list to have been laid off was Alvah Smiley, hired by Respondent
on August 29, 1961. By comparison, the least senior employee on the list of em-
ployees retained, and the one who would presumably have been laid off next was
Gerald Hunter who was hired August 28, 1961, the day before Smiley. This factually
establishes the application of strict seniority and I so find.
I am conscious, of course, of the fact that every employee laid off except Rosen-
meier, Martin, and Klump belonged to the Union and that this was known to Re-
spondent. This significance loses its force, however, upon a study of the list of 17
who were retained. For in that group seven were known union adherents, and in-
cluded among them were employee Williams, the instigator of the organizing move-
ment and the local president, employee Fritz, eventually a member of the bargaining
committee, and at least three union members who thereafter distinguished themselves
on the picket line (see I. R. Case No. 25-CB-497).
It is suggested, moreover, that this layoff occurred during a period in which a
considerable amount of antiunion sentiment was manifested by Respondent's officials
and supervisors (supra). It has not been established to my satisfaction, however,
that the economic facts relating to the business, as found herein, have either a direct
or indirect relationship to Respondent's demonstrated attitude toward the Union and
its organization of the employees. Indeed, to establish such a relationship would
be to conclude that Respondent deliberately created the conditions of poor produc-
tion, loss of business, and faulty management for the primary purpose of defeating
the Union. Commonsense suggests that this would be far too high a price for
businessmen to pay to defeat a union, and I refuse to draw such a conclusion.
The individual treatment of several employees initially laid off has also been
advanced as basis for finding the layoff to be discriminatorily motivated. Thus,
Jacqueline Klump and Wilma Kniffen were recalled to work within 2 weeks of their
March 9 layoff and have worked steadily thereafter. Here again, however, aspects
of union bias loses its force, for one employee belonged to the Union and eventually
participated in the strike, and the other, Klump, did not belong to the Union and
did work during the strike. Kniff en, the union adherent, was recalled, according to
Carson, because they "considered her the best Gillette cup packer we had." Knif-
fen, called by the General Counsel as a witness, credibly testified in corroboration
of Carson that she was recalled to do packing on the Gillette job and only worked
on the machines when there was no Gillette packing to do. Klump was likewise
recalled for a special purpose, according to Carson: "Gillette has a statistical sam-
pling method of quality control ... Jackie [Klump] had been trained in this statis-
tical sampling method and because of our sensitivity to Gillette quality and they
were the biggest customer we had . . . we then called her back as a specialist in
final inspection because of her experience and knowledge of the statistical sampling
system." In the absence of any evidence to rebut this reason supplied by Carson
(Klump not having been called), I accept it and conclude that neither Klump's
nor Kniffen's recalls were grounded upon reasons connected with their union or
nonunion status.
In the light of all of the foregoing, therefore, it cannot be said that the layoff,
found by me to have been economically justified and equitably executed, was
colored or effected in any manner by considerations of Respondent's antipathy to-
ward the Union, and I so find and conclude.
D. The failure to recall
Quite apart from the layoff of the employees considered in detail above, it is
further alleged that Respondent's failure thereafter to recall these people was likewise
discriminatory. While I have found the layoffs to have been justified and executed
in a nondiscriminatory manner, the same cannot be said of Respondent's subse-
quent conduct in many instances. By May 9, judging from the hiring that began
then, the economic crisis appears to have subsided. While I am fully conscious of
the Union's intervening victory and its certification as the employees' bargaining
representative and of the fact that bargaining had by this time gotten underway, I see
no necessity to draw broad conclusions from these circumstances and apply them to
the individual cases involved here. Indeed, there is ample evidence in the record
on the subject without resorting to subjective inferences of rancor, and I shall direct
my findings and conclusions accordingly, having in mind that by this time Respondent
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was feeling the full impact of the Union's presence and was, as I have previously
found, aware of the Union affiliation of individual employees (supra).
Respondent President Carson testified that by the time the layoff was effected it
had decided to eliminate women operators for a number of reasons that had practical
advantages, namely, for example, the physical problems involving repair and control
of machines by women operators, and the replacement of molds, all of which en-
tailed calling upon a male employee to either assist or to do the job completely. I
accept this decision as an economic one, supported as it is by the fact that women
operators have not since been employed. It does not follow, however, that merely
because the use of women operators was found to have been uneconomical that
they were unsuited for other work in the plant. Indeed personnel records and the
testimony of Carson establishes that they were suited for work elsewhere, there be-
ing a number of women working at the classification of "Packer." And finally, plac-
ing a cloud of doubt even upon Respondent's proposed policy of eliminating women
operators, employee Freudenberg credibly quoted Vice President Gach to the effect
that he would recall her when they got more orders. While I do not accept this as
contradiction of the Respondent's stated policy of eliminating women operators, there
being economic support for its stated decision, I do find and conclude that Gach
by thus offering Freudenberg future employment conceded the availability of em-
ployment for women in the plant. The manner, therefore, in which the recall of
women employees was handled and replacements made belies Respondent's con-
tention that discriminatory motivation did not enter into its recall policy in this
respect.
Before reviewing the individual recall cases, one salient consideration remains-
the nature and extent of the replacements made during this critical period. A
review of the list of employees hired since September 1, 1961 (General Counsel's
Exhibit No. 19), and review of their applications for employment, reveals that
beginning on May 9 and continuing until August 1, 1961, during which period
employees were on strike for a month beginning on June 6, Respondent hired a total
of 30 employees. These employees were replacements for those laid off in March
and for those who thereafter went on strike in June. Contrary to Respondent's
contention that this group constituted a more experienced one, a review of their
employment applications reveals that 7 had prior experience in plastics, 16 had no
such experience, and in most cases no experience at all, and that among the remain-
ing 7 there is no experience information excepting only that Respondent's records
show that a higher starting rate of pay was given to some (infra), thus suggesting
experience in the field 28
From the foregoing it becomes obvious, therefore, that while certain of its em-
ployees were in layoff status Respondent was hiring new employees without ex-
perience. An individual consideration of Respondent's actions with respect to these
laid-off employees, and to their replacements, follows:
Roscoe Crabtree: Crabtree was the employee most active in the organization of
the employees. Following his layoff he was never recalled. President Carson
assigned two reasons for not recalling him after the layoff: The fact that he never
sought recall, and the fact that 2 weeks prior to his layoff he had used improper
language in registering a protest privately to Carson and Vice President Gach, stating
in pertinent part, "I guess you bastards can run this place any goddam way you
want."
While I certainly do not condone the use of such language, in public or private,
my observation of both Gach and Carson at the hearing, as well as my observation
of other employee-witnesses present, suggests that sensibilities did not appear to be
such that management would be outraged to the point of terminating Crabtree, as
contended. Certainly had that been their intent it would have been more appro-
priate to inflict the punishment at the time of the incident in question rather than
on a later and more suspicious occasion.
Nor does Carson's statement of the Company's recall policy which required filing
an application comport with Respondent's handling of its recalls generally, or of
Carolyn Sue Youngblood who credibly testified she was sent for and asked to come
back to put in additional time so that she would become eligible for unemployment
benefits I therefore reject Respondent's stated reasons for failing to recall Crabtree
and find them to be pretexts for the real reason which I find to be Crabtree's known
union activity (supra) 29
28This group does not include the following hired, as indicated, during the period-
Stewart and Fuller, as foremen, Brazelton and Graham, as foremen trainees.
29 The employment application of Michael Hape, hired on July 5, 1962, bears the nota-
tion "Experienced in material handling on automatic injection molding presses" This
was Crabtree's classification at the time of his layoff
SUNBEAM PLASTICS CORPORATION 1027
Shirley Dudley: Dudley was first hired in June 1958 , and rehired after a break in
service in September 1961 . She was laid off on March 9, 1962, and not recalled until
August 8, 1962 . President Carson assigned as his primary reason for not recalling
her earlier the Company policy of eliminating women operators (supra ). In addi-
tion, he claimed , her record was spotty insofar as lateness and absenteeism was
concerned and the Company had received a number of calls from her creditors.
I reject Respondent 's contentions . Certainly, as an experienced woman operator,
Dudley could have filled one of the packing positions opened on June 5, 1962 (supra).
Furthermore , the complaints concerning her credit were received by the Company
during her earlier employment . If this situation proved to be no bar to her rehire
in September 1961 it is difficult to understand why it becomes more significant when
her union membership becomes known ( supra ). Moreover , I can place little re-
liance upon Carson's claim that Dudley had a poor attendance record, for in the
very period during which she was presumably late and absent Respondent 's records
indicate that she received a 10-cent raise thereby becoming the highest paid woman
machine operator . Upon the foregoing , therefore , I reject the Respondent's assigned
reasons for Dudley's failure to be recalled until August 8, 1962, and find that it was
because of her known union membership (supra).
Charlotte Freudenberg : Freudenberg was hired on September 15, 1961, and laid
off on March 9, 1962. She was a machine operator . Freudenberg credibly testified
that in the course of a conversation with Vice President Gach in which she sought
to get her job back Gach indicated that he was aware of her union leanings and
also stated , "We are going to find out who is for us and who is against us." He then
assured her he would recall her when they received more orders . Although new
employees were thereafter hired in May (supra ), Freudenberg was not recalled until
August 13 . In view of the foregoing I reject Respondent 's claim that she was not
recalled because of the policy of not rehiring women operators . 30 On the contrary,
I find and conclude that Charlotte Freudenberg 's recall was delayed to August 13,
1962, for reasons of her known union activity ( supra).
Delores Johnson: Johnson was hired on September 5, 1961 , and laid off on
March 9, 1962 , and eventually recalled on August 20. At the time she was laid off,
she was a packer . Carson testified that she was not recalled earlier because of the
policy of not recalling women operators . As Johnson was a packer and not a
machine operator and as her union membership was found to be known by Respond-
ent (supra ), I have no hesitancy in concluding and finding that Respondent failed
to recall her earlier not for the reason assigned but because of her union affiliation
Jacqueline Klump: Klump , as has previously been noted, was recalled for a special
assignment (supra ), within 3 weeks of her layoff. Accordingly , I find no evidence
of discrimination against her.
Wilma Kni en• As in Kiump's case , Kniffen was also recalled for a special assign-
ment (supra ), within 3 weeks of her layoff and I therefore find no evidence of dis-
crimination against her insofar as her recall from layoff is concerned . Hereafter,
Kniffen 's employment status will be considered with respect to the strike of Re-
spondent 's employees ( infra).
Ronald McGillen: When McGillen was hired on December 30, 1961, it was
understood that his employment was temporary and that he would be going into the
Army. He was laid of on February 25, 1962, and left for the service on March 31.
As it does not appear that replacements had been hired by the time McGillen became
ineligible for recall by virtue of his service enlistment , I find and conclude that he
could not have been recalled and hence was not discriminated against Nor is it
relevant that some few weeks may have elapsed between his return from the service
in the fall of 1962 and his recall to work at that time . It would be entirely too
speculative , in my judgment , to relate this possible delay to a discriminatory motive
6 months after the fact
Harold Martin : Martin was hired on January 30, 1962 , and was laid off on
March 9. He was not sent a recall letter until August 8. President Carson testified
without contradiction that Respondent understood that Martin had obtained per-
manent employment with Crescent Plastics shortly after his layoff ; a fact which
Carson stated he verified with that company. As a result , Respondent made no
effort to recall Martin earlier than it did . I am disposed to accept Carson's ex-
planation . Martin was called as a witness by the General Counsel and testified with
respect to conversations I have previously considered . His interrogation as a wit-
ness was limited to these items and no inquiry was made as to either his present
employment status or as to his whereabouts during the period in question. In
20T place no credence whatever upon the suggestion that Freudenberg personally con-
ducted herrelf in a manner affecting her employment status.
727-083-64-vol. 144-66
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the absence of such significantly relevant information I have no alternative but to
accept Carson's unrebutted account. I therefore find that Martin was not dis-
criminated against for the reason that he had become unavailable for recall by
virtue of other employment 31
Marvin Mayes: Mayes was hired on January 4, 1962, and was laid off on March 9.
He was recalled by Vice President Gach in a telephone call made to his place of
business on August 1.32 Carson testified that Respondent had sought to recall Mayes
at some earlier date but he could not be reached by telephone, it being disconnected.
It appears to me that had Respondent seriously sought to recall Mayes on this earlier
occasion it would have used the same technique it used in offering him employment
on August 1. I conclude and find, therefore, that in the absence of a reasonable
explanation Respondent has not been shown to have used reasonable diligence in
the matter of recalling Mayes and the reason for its action in this respect was Mayes'
known union membership (supra).
David Meier: Meier was hired on October 16, 1961, laid off on February 25, 1962,
and was sent a first offer of reinstatement on August 9, 1962. After two unsuc-
cessful attempts to reach Meier (August 9 and 15), Respondent notified him on
September 29 that his job had been filled.
President Carson claimed, however, that Meier was not laid off in the first place,
but had, in fact, been discharged for theft and forgery and for falsification in not
reporting these items on his employment application; accusations that appear on the
record in this case to have substance 33 He was told, Respondent claimed, that he
would not be recalled. Respondent's letters to Meier of August 9 and 15 and Septem-
ber 27 offering him reemployment directly contradict Carson's testimony respect-
ing Respondent's disposition not to rehire. Meier himself, on the other hand, testi-
fied that when he was laid off, or shortly thereafter, Vice President Gach told him
"one of the reasons that he had picked me [for layoff] was that he thought I had
lied on my application to the Company."
With respect to the several reasons suggested for Meier's layoff, it is to be noted
that I have already found (supra) that the layoff, generally, was for economic and
not for discriminatory reasons. If, then, Meier was laid off, additionally, for cause,
this fact adds no implication of discriminatory motive at that time. Furthermore,
whether he was discharged or laid off at that time and whether the layoff was for
cause or for the economic reasons, it most certainly appears that any cause which
may be motivated Respondent, at least in part, at the time of the layoff was dis-
sipated by its several letters in August inviting Meier back to work. I deem this
invitation, dated August 9, 1962, to constitute Respondent's condoning of Meier's
conduct as of this date.
A reading of Meier's testimony discloses an admission on his part that he received
Respondent's offer of a job on August 9, the date upon which he was, as I have
found, excused for his previous misconduct. But there is no evidence that Meier
thereafter sought employment. Having obviously refused it at that time, I do not
find that he has been in any manner discriminated against. I conclude and find,
therefore, that after August 9, 1962, Respondent was under no obligation to pro-
vide Meier with employment, in the absence of proof that Meier was willing or
available.
Paul Rhodes: Rhodes was hired on January 6, 1962, and laid off on February 24.
Respondent claims he was not thereafter recalled until the routine recall letter was
Indiana. Rhodes' case parallels that of Martin whose employment has been found
to have been known by Respondent by virtue of Martin's failure to deny or to testify
to the contrary (supra). Rhodes had no positive recollection of having told anyone
of his employment in Jasper but concedes the possibility that he might have done so.
Obviously Rhodes' new employment was no secret. As I have already found
upon President Carson's acknowledgment that many things become common
31 In his brief General Counsel considers Respondent's obligation to pursue the matter
by communicating a recall to Martin I am not aware of any requirement that an em-
ployer must contact a former employee who is known to have withdrawn himself from
the labor market to ascertain whether he is satisfied with his new position
321t was stipulated that Mayes told Gach at the time that he was working and would
call him back after discussing with his wife the matter of returning to Respondent's plant.
Mayes appears to have delayed calling Gach, and when he did so Gach could not be
reached Meanwhile Respondent wrote Mayes stating its understanding that he had
refused reemployment.
3313y his own admission Meier was convicted of forgery in 1957 He also admitted
failing to note this fact on his employment application in answer to a question thereon
relating to past misconduct.
SUNBEAM PLASTICS CORPORATION 1029
knowledge in a small plant and that Rhodes' and other employees' union membership
was thereby known to the Company, by the same token I must necessarily conclude
that Rhodes' new employment was equally as well known. I accordingly conclude
and find that by being thus withdrawn from the labor market Rhodes was not avail-
able for recall and Respondent's failure to recall him under the circumstances was
not discrumnation.
Alvah Smiley: Smiley was hired on August 29, 1961, and laid off on March 9,
1962. He was not recalled until August 13, 1962. President Carson testified that
Smiley had not been recalled earlier because, having moved to another address after
his layoff, he could not be located. It is obvious, however, that when Respondent
did want to communicate with Smiley it was able to do so. Thus, on August 13 it
addressed a letter of recall to Smiley at his old address and the letter was promptly
forwarded to him at his new one. Had Respondent followed the same procedure
earlier I have no doubt that a notice of recall would have been as seasonably for-
warded to Smiley. On the facts before me, I am persuaded that Respondent failed
to do so, and because it preferred not to recall him, knowing as it did Smiley's
preference for the Union (supra). Accordingly, I conclude and find that Respond-
ent thereby discriminated against him.
Mildred Smith: Smith was hired originally in May 1960, rehired on October 2,
1961, after a break in service, and was laid off on March 9, 1962. She was a
machine operator at the time of her layoff; and it was because of her classification
and Respondent's decision not to rehire women operators that, according to Carson,
she was told she would not be recalled. As it appears from Respondent's own
records that employees were thereafter rehired without experience, I conclude and
find that its failure to recall Smith until August 9 was not for the reason stated but
because of her known union membership (supra).
Roy Thompson: Thompson, custodian and janitor, was hired on December 1,
1961, and laid off on March 9, 1962. It is Respondent's contention that because
of the economic situation that persisted following the layoff, Thompson's position
was never filled. No evidence was adduced to rebut this contention but General
Counsel in his brief suggests that the Trial Examiner "can find that the work is still
there to be done, and that he has in effect been replaced." To so conclude would
require me to find that if and when there is work to be done there must necessarily
be someone to do it. This suggestion appears to be but a corollary of Parkinson's
Law and for want of better authority, I reject it.
That Thompson's job was never filled is conceded. It is likewise conceded that
Respondent offered him another, albeit a more arduous, job of painting which he
refused. Respondent has thereby satisfied any obligation it might have had to recall
him. I therefore conclude and find that Thompson was not discriminated against.
E. The case of Margaret Harrington
Harrington was employed on September 26, 1961, as a packer and after 3 or 4
weeks was assigned as a machine operator, a classification in which she continued
thereafter. Harrington credibly testified that one night in the latter part of Janu-
ary 1962, she came to work to find one of the machines broken down; and as some-
one had to be sent home she volunteered. The following night, a Friday, was her
regular night off and consequently she did not report for work. She was scheduled
to work on the following night, Saturday, but during the day she received a telephone
call from the Company telling her not to come in until she was further notified. On
the following Monday, after ascertaining from Wilma Kniffen, who had a similar
job but on a different shift, that she was still working, Harrington went to see Vice
President Gach and asked him why she had been laid off. When Gach told her it
was because of her Friday absence, she explained to him the details of her voluntary
absence on the day before, Thursday, and the fact that Friday was her regular day
off. Gach then investigated the situation and was told that Harrington had been
marked absent because they needed her that night and she had not reported. She did
not know, however, if the record had since been corrected. Gach thereafter told
her that because she was the only woman on the third shift she could not work it.
Harrington then offered to work on any other shift. She was not reassigned nor
has she ever been recalled.
I cannot accept President Carson's explanation of the termination of and failure
to recall Harrington, which was to the effect that she would have been the only
woman on the third shift and that in any event her work was "spotty." Nothing in
the comparison of wage increases given employees during that period suggests that
Harrington was any better or any worse than her fellow workers. But more sig-
nificantly, the excuse that she was terminated because she would be the only woman
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the third shift simply does not hold up. In the first place she stated her willing-
ness to work on any shift. And lest it be thought or contended no such transfer was
available to her, Respondent's records disclose the contrary. Thus the records dis-
close that Harrington, a machine operator, was laid off on February 9, and that
Harvey Rosenmeier, age 19, with previous summer experience as a bottle washer,
was hired on February 14, 1962, and, according to Carson, was assigned the classifi-
cation of press operator during the first month of his employment. Upon considera-
tion of the inconsistency thus revealed, it is apparent that Margaret Harrington's
layoff and Respondent's failure thereafter to recall her was not for the reasons
given her, or given me at the hearing, but because, as Gach told employee Bottoms,
"she is the one that started the Union business out here." Harrington's union
activity was known to Respondent, it will be recalled, she having signed an authoriza-
tion card for the Teamsters Union, and having been recognized by Gach as active
in behalf of that union .34 I accordingly find and conclude that Harrington was
discriminated against in violation of Section 8 (a) (3) of the Act.
F. The case of Carolyn Sue Youngblood
Youngblood was first hired in March 1960, quit her job in November 1961, and
was thereafter rehired early in February 1962, to the same classification she had
previously held-machine operator. On March 1, she was laid off as part of the
economic retrenchment program discussed earlier. As the date of her last hire was
on or about February 1, 1962, I would conclude and find that her layoff, like that
of the rest of the group (supra) was economically dictated, executed according to
strict seniority, and not for discriminatory reasons. General Counsel attaches
discriminatory significance, however, to what followed with respect to Youngblood.
She credibly testified that in late March or early April 1962, she received a telephone
call from Vice President Gach informing her that during her most recent period
of employment she had not worked a sufficient number of days to entitle her to
unemployment compensation. He suggested, therefore, that she return and work
a sufficient number of days to entitle her to benefits. This she did and after 6 days
she was again laid off, having accumulated the necessary working days in the
meantime. General Counsel suggests that because during this same 6-day working
period Gach questioned Youngblood in a manner which I have already found to
constitute interference (supra), this serves, in effect, as a guarantee to her of con-
tinued employment. As Youngblood credibly testified she was called back for a
limited period, I fail to see how asking her to speak to another employee about the
Union, as I found to have occurred, could have the effect of converting a limited
recall into a permanent one, and I so find.
Youngblood was recalled in August 1962, but being in the advanced stages of
pregnancy was unable to return. Respondent, although knowing of Youngblood's
condition, wrote her advising of its understanding that she had refused employment.
I am persuaded that Youngblood's recall was deferred to August 1962, not because
of consideration of health, but, as in the case of the others recalled at this delayed
time, because of her known membership in the Union. Similarly, and for the same
reasons, I would find that the letter advising her that she had been deemed to have
refused employment was not intended as a routine personnel action but again
because of her known union membership. Accordingly, I would find Carolyn Sue
Youngblood was discriminatorily deprived of employment at some date following
the first hiring of replacements for reasons of her union membership.35
G. The refusal to bargain
1. The sequence of bargaining
Following the certification of the Union after its selection by the employees in
the April 1962 election as their exclusive bargaining representative, meetings were
held with representatives of the Respondent and the Union between May 7 and
June 13, 1962. The parties met on five different occasions. Attorney Arthur
Donovan represented the Respondent and the Union was represented by Interna-
tional Representative Hackett, Local President James Williams, and Dremetria Fritz,
chairman of the bargaining committee.
34 The credited testimony of Bottoms and Gries
It is to be noted that for some of this period Youngblood was incapacitated. Her
child was born in late October 1962. This factor and Respondent's policy with respect
to maternity leave will, therefore, determine the extent of discrimination against her.
SUNBEAM PLASTICS CORPORATION 1031
Negotiations were initiated by the Union's request for a meeting , and its submission
to Respondent of a list of basic items it desired to be included in the contract. These
were the following: (1) a substantial wage increase for all employees; (2) a health
and welfare plan; (3) shift differential; (4) break schedules; (5) equal pay for equal
work performed by women employees; (6) discussion of job classifications; (7)
safety and first aid; (8) vacation plan expansion; (9) janitorial service; (10) pay
for leadmen; (11) plant ventilation; (12) job alternation; and (13) assignment of
shifts by seniority. A meeting was scheduled for May 7, and several days previously
Hackett gave to Donovan the Union's contract proposal which incorporated the
items noted above.
At the outset of the meeting Donovan indicated to the union representative that
the Company "could not see its way clear to granting any increase in wages or any
economic benefits that would, in a sense, be a wage increase." Throughout the
meeting, and consistent with the Company's stated position as to wages , both parties
reviewed the Union's proposal indicating on an item-by-item basis those which
Donovan would accept and those he would not or would accept upon modification.
Thus the recognition clause was revised to include the International, liability under
the proposed contract was fixed, the bargaining units certified by the Board was
redefined for clarity,36 the use of supervisory help was defined, the proposal for an
agency shop was rejected, a workday was defined, and the Company insisted that 6
days be considered a normal workweek. The Company rejected proposals providing
for time and a half over 40 hours per week, prior union agreement for changes in
working schedules, specific holiday and Saturday extra pay, and an arrangement to
avoid layoff of employees to compensate or equalize for overtime work. The call-
in pay proposal made by the Union was reduced from 4 hours of pay to 2. Final
consideration of a grievance procedure was deferred; a proposal for dividing work
during slack periods was rejected; and the proposal for layoff by seniority was
acceptable was the provision that provided ability and skill must also be equal. A
probationary period of 6 months following hiring was accepted; other proposals
allied to the establishment of seniority were rejected. Provision for sick pay was
rejected, whereas arrangements for granting of leaves of absence under stated con-
ditions was approved, and the proposal permitting the union representative to enter
the plant was restricted to his visiting the company offices. The proposed manage-
ment prerogative clause was not deemed sufficiently broad. Provision for use of
bulletin board space was found acceptable, whereas checkoff of union dues was
rejected by the Company; although it is to be noted that this latter item was subse-
quently agreed to by the Company.37 Following the meeting Donovan sent to
Hackett a letter setting forth in detail his understanding of what transpired at the
meeting and the Company's position on the subjects covered. This does not vary
in substantial detail from testimony on the subject.
The next meeting was held on May 9, with the same individuals present. It
lasted but a few minutes. Hackett opened the meeting by inquiring if the Company
had agreed to a wage increase; to which, according to Hackett, Donovan replied,
No, there is no use kidding each other, this Company is still not going to increase
their costs or change any of their ways as it has been before the Union got in." 38
There appears to have been general agreement that nothing further could be done
at that point, so everyone prepared to leave the meeting. As he went out the door,
Donovan was heard to offer Hackett a provision for checkoff of dues. It should
be noted, however, that in his earlier letter to Hackett confirming action taken at the
previous May 7 meeting, Donovan had already offered the checkoff and had agreed
to prepare appropriate contract language.
As Hackett and Donovan left the meeting room a brief but heated exchange oc-
curred. Whereas the versions differ, a reading of each is sufficient to describe the
event. Thus Donovan quotes Hackett as "talking strike" and then stated, "I really
ae The pleadings establish and I find and conclude as follows
All production and maintenance employees of the Employer, including the local
truckdriver and floormen but excluding office clerical employees, guards and super-
visors as defined in the Act constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the Act.
7 The foregoing account of the May 7 bargaining session is a composite of the testi-
mony of Hackett and Donovan, and in more substantial part, a review of Donovan's
marginal notes made on the Union's proposal during the meeting
IsThis statement was confined by Fritz and Williams. Donavan's version was sub-
stantially the same-"I indicated that we hadn't decided at that time to grant a wage
Increase"
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
think I said something to him there about that I didn't want a strike, it was a small
company but that if he was trying to scare me with strike talk, there were strikes all
over the country or I had lots of strikes going on and we weren't going to negotiate
with threats of a strike hanging over my head, that didn't bother me, but let's get
down to business and negotiate a contract and not have this strike vote he was
telling me about." Hackett, on the other hand, quotes Donovan as saying, "Well,
I have already stated my statement , so what are you going to do, are you going
to strike?" Whereupon Hackett replied, "No, I would like to keep away from a
strike because a strike don't help anyone." Fritz and Williams testified to Hackett's
version adding, as Donovan's own testimony had also indicated, that Donovan said,
"Go ahead and strike, I don't care, I have them going all over the country." Regard-
less of which version is accepted out of this welter of minor contradictions, the main
theme is evident-strike action was viewed by all the parties as a distinct possibility
at this time-May 9. On the following day Donovan received an inquiry into the
state of negotiations from United States Mediator Edward Windes, whose entry
into the case is otherwise unexplained in the record.
Following the May 9 meeting, Donovan again sent Hackett a confirming letter
which in substance accused Hackett of terminating the meeting and suggested the
calling of another one. Hackett took vigorous exception to this accusation, and
a further exchange of correspondence ensued. All that appears in the record are
Donovan's letters, but these are sufficient to indicate that each side was accusing
the other of promoting strike action. Meanwhile, as previously noted, the Federal
Mediation and Conciliation Service came into the case. Donovan persisted in his
request for an early meeting to continue negotiations which meeting was set for
May 22. Prior to the meeting he submitted the Company's contract proposals to
Hackett. These proposals, set forth in some detail, covered the following items:
management rights, union stewards, seniority, no-strike, no-lockout, bulletin boards,
and collection of dues. At the meeting held with Federal Mediator Windes on
May 22, with the same individual representatives being present, Hackett repeated
his demands for a substantial wage increase, and health, insurance, and pension
plans, all of which Donovan concededly refused to grant. Considerable discussion
was had, however, on the contract proposals submitted by Respondent including
seniority, leaves of absence, a management prerogative clause, safety and first aid,
ventilation, shift assignment based upon seniority and a comprehensive three-page
outline of a suggested grievance procedure. In a letter to Hackett, dated May 23,
Donovan, consistent with past practice, set forth his understanding of what transpired
at the meeting. Included in the letter was a reference to a discussion at the meet-
ing of a strike vote taken among employees after the May 7 meeting, whereby it had
been agreed among them to strike on June 1 .39 Thereafter, on May 25, Donovan
sent Hackett another confirming letter, this time supplying him with a previously
promised clause covering working foremen, together with a statement of an accept-
able vacation program which, upon comparison with the vacation plan demand
previously made by Hackett in the Union's May 3 proposal, appears to be a conces-
sion in full agreement with the union demand on the subject.
The fourth negotiation meeting was held on May 29, again with Federal Mediator
Windes. According to Hackett, "they rerun just what we had went over before,"
with no monetary matters agreed upon. Donovan's letter to Hackett confirming
what transpired at the meeting substantiates Hackett's report, indicating further con-
sideration had been given such subjects as the grievance procedure, seniority, a
no-strike provision, use of bulletin boards, collection of dues, a management preroga-
tive clause, and an acceptable safety program. It appears from the testimony of
Donovan that during the course of discussion of wages and benefits that Hackett
prefaced 'his remarks by words to the effect that "He might be asking for the sky, the
moon, and the stars." Donovan, in his letter, used this expression to counter the
Union's monetary demands and to accentuate the Union's suggestion that it would
have to "take action"-presumably a strike. Donovan thus took vigorous exception
to the Union's demands and to its suggestion of strike action, but at no time does
it appear from his account of the meeting, or from his commentaries on what tran-
s There is no independent confirmation of this vote being taken at the time men-
tioned Arrick and Williams testified to a strike vote having been taken, without stating
the date, and Hackett, whom I do not credit generally, testified that a vote was taken
on June 3 President Carson testified to a general awareness of a strike vote having been
taken, and its result.
SUNBEAM PLASTICS CORPORATION 1033
spired there, that he expressed any monetary position on behalf of the Company,
excepting only an agreement arrived at at the first meeting to provide 2 hours call-in
pay for maintenance employees.
Thereafter, on Sunday, June 3, Hackett communicated with Donovan at his home
to inquire what, if any, monetary concessions the Company would make at that
time. Donovan's recollection was that he replied that "We feel pretty strongly that
the Company would not grant your wage increase demands," and suggested that
another bargaining session be held later in the week. Two days later the employees
went on strike following Hackett's report to them of the most recent status of the
contract negotiations. The stated purpose of this June 6 strike, as credibly described
by Arrick, was the Company's failure to reach an agreement with the Union, the
earlier layoff of employees, and the Company's failure to recall them before hiring
new people.
While the strike proceeded apace bargaining continued, the next meeting being
held at the county courthouse on June 9. In addition to the usual representatives,
Vice President Gach was present in behalf of Company, as was United States Con-
ciliator Windes. The meeting was presided over by State Commissioner of Labor
Hobart Butler and also included among its participants, Esham Grim, the sheriff of
Vanderburgh County 40
At this meeting, according to Hackett, a number of language changes were sug-
gested in the portions of the contract already agreed upon: the Company agreed
upon a provision giving equal pay to women employees for equal work, requiring
that equal abilities and experience be established as well. Donovan testified to dis-
cussing at this meeting the strike situation and its attendant violence. Whereupon
Hackett inquired if the striking employees would be returned to their jobs when the
strike was called off. When Donovan told Hackett that the Company would not
take back those who had engaged in violence, Donovan recalled that Hackett con-
ditioned any future contract upon the reinstatement of everyone. Donovan's testi-
mony indicates that he again remonstrated with Hackett over the injection of "srike
talk," and finally a strike itself, into negotiations which he felt could eventually be
brought to a successful conclusion. But when Hackett countered by protesting that
no action had been taken on wage demands, Donovan admits having deferred con-
sideration of this topic, stating:
Well, frankly, you don't want me to put my strategy on the line, but we
would like to get those things out of the way. Wages are usually the last thing
that come up. Get these others out of the way.
On this note the meeting ended.
No meetings between the parties have since been held, although correspondence
has been exchanged suggesting the arranging of meetings and the continuation of
negotiations.
2. Conclusions with respect to refusal to bargain
It is readily apparent from a review of the foregoing that at the five negotiating
sessions in which the Company and Union participated a considerable amount of
discussion took place, a considerable number of topics pertinent to a collective-
bargaining agreement were explored, and in many cases adopted, and considerable
numbers of proposals and counterproposals were exchanged between the parties.
40 This official's presence was occasioned by his active maintenance of order on the picket
line then in progress at Respondent's plant, where he and his deputies were on hand two
or three times each day throughout the strike At the beginning of the meeting in question-
Respondent's counsel, Donovan, objected to the sheriff's presence and he voluntarily with-
drew. In this respect I reject Donovan's stated reason for his objection to Sheriff Grim's
presence, the fact that he was armed. On the contrary, when he testified before me in
Case No. 25-CB-497, the sheriff denied that he was armed. I accept his denial. It is
true that I was unable to rely upon some of the sheriff's other testimony in that earlier
case, relating as it did to incidents to which he was either mistaken in his recollection
or not present when they occurred. Nevertheless, he impressed me as an official who
consistently performed his duties in a forthright and conscientious manner. Indeed this
judgment was borne out by the composite evidence in the previous case describing the
manner in which the sheriff and his deputies maintained orderly control over the picket
line. I have no hesitancy, therefore, in crediting him in this case whereas I did not rely
upon his testimony under other circumstances.
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This condition lends support to the suggestion that the mandates of the Act with
respect to collective bargaining has been fulfilled . 41 For in this respect it is to be
noted, without attempting to reiterate what has previously been described , that many
terms and conditions of employment were seriously considered , with concessions
being made on many items , and adamance being registered in other areas.
Noteworthy in the area of complete adamance was Attorney Donovan's con-
tinued refusal at all stages of the negotiations to react favorably to any demand for
increased wages or for so-called fringe benefits, excepting only a 2-hour call-in pay
provision for maintenance employees . And it is precisely because of this adamance
that General Counsel insists that Respondent 's negotiating conduct constitutes a
refusal to bargain in violation of the Act . Counsel suggests a number of circum-
stances which they insist add up to bad-faith bargaining : The Respondent 's opposi-
tion to the Union, the instances of interference , restraint , and coercion which I have
already found to be violations of the Act, and the discriminatory failure to re-
instate the laid-off employees . There is, however , a distinct difference between
using findings of this sort to give meaning and understanding to otherwise un-
explainable , contrived , and suspicious conduct , and using it, on the other hand, to
discolor what is understandable and basically proper . Unless, therefore , it is to
be contended that bargaining conduct may derive a bad-faith character even as
certain unlawful interference derives its unlawful character from other types of
illegality,42 the bad faith must be established by demonstrating that the bargaining
was unexplainable , contrived , or suspicious . For reasons which follow I am per-
suaded that it was neither.
To begin with , no relation has been established between Respondent 's conceded
feeling toward the Union and bad faith at the bargaining table. Indeed to suggest
that it has indulges in a per se conclusion that puts the stamp of approval only upon
negotiations conducted on a high plane of harmony, i.e., absence of opposition to
the Union . However devoutly this is to be desired , it has no basis in law.
Nor does it follow that the discrimination and instances of interference I have
found, per se, established bad faith at the bargaining table. Here, it must be
remembered , Respondent has been found to have interfered with , restrained, and
coerced its employees as they were in the process of selecting their representative,
and to have discriminatorily refused reinstatements to them shortly thereafter. I
am, however , aware of no vile of law or logic by which the essence of such conduct
at such a time seeps into other conduct, here bargaining , at some later time 43 To
conclude that it does, without more, makes of Respondent 's first malfeasance a
suspension , henceforth , of the law of cause and effect.
The character of the bargaining here, therefore, must first be assessed to determine
whether it contains any other of the attributes of contrivance or suspicion that would
justify relating it, unfavorably , to Respondent's other actions.
A review of what transpired between May 7 and June 13, as described above,
persuades me that at all times the parties bargained in appropriate fashion, threading
their way through pages of proposals and counterproposals . Each side presented
its own proposals ; each side dissected the other's proposals . Progress was evident
after all but one session , the May 9 session . And even at that one, brief as it was,
the Union 's request for a checkoff was granted . All that seems to have been lacking
was a concession on Respondent 's part in the matter of wages
It was on wage matters that Attorney Donovan 's motivation is doubly challenged
by counsel because he admittedly could have granted a wage increase and did not 44
What General Counsel and counsel for Charging Party are saying is that in this
department of bargaining there are really two varities of bad faith; one, the kind in
which a concession is refused , the other , the kind in which a concession is refused
41 Section 8(d) of the Act provides in pertinent part as follows:
For the purposes of this section , to bargain collectively is the performance of the
mutual obligation of the employer and the representative of the employees to meet
at reasonable times and confer in good faith with respect to wages, hours. and other
terms and conditions of employment, or the negotiation of an agreement, or any
question arising thereunder , and the execution of a written contract incorporating
any agreement reached if requested by either party, but such obligation does not
compel either party to agree to a proposal or require the making of a concession.
42 For example , in instances of discilmination in violation of Section 8(a)(3) em-
ployees are derivativelv interfered with in violation of Section 8(a) (1). See N L R B v.
Remington Ranii , Inc, 94 F 2d 862, 869 (CA 2)
4s Marathon-Clark Cooperative D airy Association v N L R B , 315 F 2d 269 (C A 7)
44 Donovan testified he had President Carson's authority " to give a little bit of wages "
SUNBEAM PLASTICS CORPORATION 1035
when it admittedly could have been made. My short answer to each of these
propositions is that they are in conflict with Section 8(b) of the Act and I so find.
Nor is it of consequence that Donovan, as the Company's exclusive representative,
had or did not have authority to make a wage bargain other than the one he made,
anymore than it would have been of consequence that the Union's representative
had or did not have like authority. Indeed if Donovan did lack such flexibility it
might well be construed as a restriction upon his authority and as evidence of another
form of refusal to bargain.45 Suffice it to say, that in my reading of the record there
is nothing to suggest that bargaining was not full and complete on all proposals, ex-
cepting only wages and monetary benefits, upon which Respondent was determined
not to, and legally free not to make a concession 46
In its legal analysis of the bargaining herein counsel for the Charging Party refers
me to authorities which he deems dispositive of the issue. I cannot agree.
American Aggregate Company, Inc. and Featherlite Corporation, 125 NLRB 909,
affd. 285 F. 2d 529 (C.A. 5), was a so-called hard bargaining case in which the
Board sustained a finding of bad faith. Significant to the finding there were two
instances of unilateral action on the part of the employer. Thus, while consistently
refusing to grant a wage increase, claiming that business considerations and competi-
tion made it inadvisable, the employer announced a general wage increase (125
NLRB 909, 919), and indeed at the very outset of bargaining, after the first week,
discontinued the customary Christmas bonus (at 921). Both of these instances of
unilateral action were quite properly found to be evidence of bad faith, even as
they would independently constitute a form of unlawful refusal to bargain.47 As
there are no such flaws in the instant bargaining I deem the cited case of no relevance.
In Fitzgerald Mills Corporation, 133 NLRB 877, the Board, finding an unlawful
refusal to bargain, posited its conclusion upon a number of circumstances not present
in the instant situation. Thus it found employer recourse to dilatory tactics by
delaying the furnishing of requested information (at 878), and adamant refusal to
enter a contract except on its own terms, including terms less favorable than those
previously enjoyed by the employees (at 879), a limited bargaining authority on the
part of the employer's representative (at 881), and a series of unilateral actions,
including changes in wage rates, during the course of bargaining itself. As the
case is thus clearly distinguishable from the instant one, it has no relevance at this
point.
Charging Party's counsel suggests that by its hiring practice followed immediately
before and during the strike Respondent here took the sort of unilateral action
identified with bad-faith bargaining. Thus, it is claimed, Respondent began a pro-
gram of further hiring, beginning on June 1, for the purpose of preparing for a walk-
out; a transaction quite distinct from the hiring of replacements in May 1962 in a
manner which I have already found to be a discriminatory refusal to reinstate laid-off
employees (supra).
Respondent's actions and its purpose bear scrutiny. In the first place a strike was
imminent. Everyone at the previous bargaining sessions had something to say on
the subject and it was being constantly discussed among the employees. Under
such circumstances and upon consideration of the smallness of Respondent's opera-
tions and President Carson's admission that such items of interest invariably have a
wide circulation (supra), I have no hesitancy in finding and concluding that the
Respondent was as aware of the strike's imminence as it had been of its employee's
union membership (supra). As it was thus faced with a real threat to the con-
tinued operation of its plant Respondent had every right to take adequate steps to
continue production for the duration of the strike which followed.48 Some questions
are raised, however, as to the extent to which Respondent did and would go in
hiring replacements for such a purpose. Thus, it is complained that it hired too
many at too great a wage cost.
I fail to see how bad faith can be attributed to an employer's attempt to protect
his business operation by taking every possible precaution-which precaution in
this case appears only to have been the hiring of more people than counsel, by
hindsight, deems to have been necessary. Certainly the standards of good or bad
96,Cf. International Union, United Automobile, Aircraft and Agricultural Implement
Workers of America (UAW), API -CIO. and its Amalgamated Local No 453 (Maremont
Automotive Products, Inc ), 134 NLRB 1337
40 See Sec 8 (d) ; Marathon-Clark Cooperative Dairy 4ssociation v N L R B , 315 F. 2d
269 (C k 7)
47 N L R B v Benne Katz, etc, d/b/a Williamsburg Steel Products Co , 369 U S 736;
N L R B v Neles-Bement-Pond Company. 199 F 2d 713 (CA 2).
48 N L R B v. Mackay Radio & Telegraph Co , 304 U S 333.
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
faith do not require that an employer's emergency operations be geared to such
subjective refinements. Nor is it significant to a determination of good or bad faith
that during the crisis of a strike the employer be held to such restrictive terms in
the granting of wages to replacements that he thereby continues his business opera-
tions at his peril. I do not so read the Supreme Court's decision in the Mackay
case 49 Nor do I consider the Supreme Court's recent decision in Erie Resistor
Corp., et al.,50 to in any way impinge upon an employer's rights, described in Mackay,
to make such reasonable wage adjustments. Certainly, a higher wage rate paid to
replacements does not constitute an "impairment of (strikers') tenure because they
chose to go on strike" as the Board found that superseniority did (132 NLRB 621,
626); nor do the effects of hiring a replacement at a higher wage have an indefinite
future effect, as does superseniority (idem at 627). In any event, as I shall demon-
strate, there were no inequities effected in the,hiring of replacements.
At this juncture it would be appropriate to note what Respondent's hiring action
actually consisted of. Thus, between June 1 and July 7, 1962, it hired the following
in the classifications and at the rates stated:
Name Classifica-
tion
Rate Name Classifica-
Lion
Rate
Charles Fuller______________ Foreman__ $2 00 N Krouse ------------------ Operator $1 35
Joe Gary Fulcher----------- Operator-- 1 75 William Seiler, Jr___________ _____do____ 1.35
Huddle Mardirosian_______ _____do____ 1 35 Terry Whitfield____________ _____do____ 1.35
William Workins_________ _____do____ 1 65 James Boatman____________ ----- do---- 1 50
Isadore Wright_____________ _____do____ 1 50 Richard Young ------------- ----- do---- 1 35
Milton Knopfineier________ _____do____ 1 35 D. Majors__________________ _____do____ 1 75
James Johnson_____________ _____do____ 1 35 E Schaefer ----------------- ----- do---- 1 50
Charles Welch______________ ----- do---- 1 50 Lester Steinmetz___________ _____do____ 1 35
Jay Clark__________________ _____do____ 1 35 Richard Worthington------ ----- do---- 1 35
L. Dimmett---------------- ----- do---- 1 35 D Courtney --------------- ----- do---- 1 75
T. Helms___________________ ----- do---- 1 35 Tom Bryan________________ Packer____ 1 15
E Jewell ___________________ _____do____ 1 50 Steve O'Neil --------------- ----- do---- 511.15
From a record comparison of the foregoing with the starting rates of employees
previously hired it is to be noted that packers were hired during the strike at the same
rate, $1.15, as packers were hired in 1961. Operators hired during and immediately
prior to the strike were, with the exceptions to be noted, hired at the same rate, $1.35,
as operators hired in 1961. Employees Fulcher, Workins, Isadore Wright, Welch,
Jewell, Boatman, Majors, Schaefer, and Courtney were hired at varying rates over
the wage rate given to others hired during the same period, and indeed in some
instances at rates higher than those paid to regular employees with experience in
the plant as operators. A review of the applications of these recently hired indi-
viduals indicates, however, that each of them had experience as plastics machine
operators for periods from 6 months in the case of Wright to 41/2 years in case
of Majors. No employment history was available for Fulcher, Workins, or Wright,
but in the absence of any evidence or contention to the contrary, I would deem
their experience comparable to the others in the group of higher paid operators.
Based upon the findings which I have made respecting the starting rates of replace-
ments, two conclusions follow: (1) Respondent's hiring practices did not, in fact,
deviate during the critical strike period, and (2) Respondent's determination at the
bargaining table not to concede on matters affecting wages was in no way com-
promised thereafter by the manner in which it hired strike replacements. For it
continued to pay the established rates to new hires, excepting only those who had
what appears to have been more or at least the same experience as Respondent's
regular operators. Thus, it appears that men like Majors, Jewell, Courtney, and
Welch were paid substantially more than most of the regular women operators, and
as much as some of the experienced men operators, E. D. Hunter, Gries, Williams,
and Sampson. A comparison of the experience history of all of these employees
discloses a distinct correlation between total experience, either with or outside the
49 Supra.
50 373 US 221, enfg. 132 NLRB 621
51 There is no record information as to the length of employment of these individuals
'hired during the strike and whether they stayed for any extended length of time, through
-or after the strike.
SUNBEAM PLASTICS CORPORATION 1037
Company, and the employees' current wage rates. I have no basis for concluding,
moreover, that other and subtler considerations would have changed this relation-
ship. On the contrary I have no alternative but to conclude that on its face the
wage structure of the employees hired between June 1 and July 7, 1962, was in
proper order.
As I have found and concluded that wage inequities did not arise as a result of
replacement hiring it becomes unnecessary, to consider Southwestern Porcelain Steel
Corporation, 134 NLRB 1733, and St. Clair Lime Company, 133 NLRB 1301, cases
referred to me as supports for the proposition that pay inequalities of replacements
hired during the strike is evidence of a continuing bad-faith bargaining situation. In
passing it is to be noted, however, that in the more recent of these cited cases, South-
western Porcelain, the Board approved a finding of the Trial Examiner that he
"would not impugn [the Employer's] good faith by the change it made in its pro-
curement of skilled classifications after the strike began," restricting his bad faith
finding to the increase of wage rates given to nonskilled replacements (133 NLRB at
1743). Significantly, and as already discussed, the rates of neither the unskilled
packers, nor of the skilled classification, the operators, were changed to accommo-
date the strike burdens in the instant case.
The Charging Party also urges with extreme vigor the deleterious effects of "strike
talk" throughout the bargaining sessions, casting Attorney Donovan in the role of
"strike provocateur," bent upon breaking up bargaining, destroying the Union, and
thereby manifesting other facets of bad faith. To so describe Attorney Donovan is
to present the Union in a light that does not befit it. There is nothing in the
record of this case, nor of Case No. 25-CB-497, involving this Union and its Inter-
national Representative, that would remotely hint at the sort of irresponsibility that
is thus attributed to the Union's strategy.
The record is ample to support the finding and conclusion which I make that
Hackett, for the Union, was generous with his references, if not his threats, of
impending strike. Accordingly, if we are to ascribe to the Union the degree of
responsibility to which it is properly entitled it would be doing it and its leadership
a distinct disservice to insist that its eventual strike action was the result, not of
reasoned union strategy, but of third party goading. On the contrary, the findings
I have made heretofore, and indeed the whole record, describes hard-hitting nego-
tiations, with strike action discussed by all parties Under such circumstances, I am
not disposed to single out Donovan's strike references for special consideration
without giving the same attention to International Representative Hackett's equally
forceful approach to the same subject matter.
In summary, therefore, and upon consideration of all of the foregoing findings, I
would find and conclude that there is no credible evidence in the record nor reason-
able inference that could be drawn therefrom to suggest a conclusion that Respond-
ent's continued bargaining was other than in the good faith required of it by Section
8(d) of the Act and the mandate of the Supreme Court 52 Accordingly, I would
recommend that so much of the complaint herein as alleges a violation of Section
8(a) (5) be dismissed.
H. The strike and subsequent discrimination
1. Sequence of events
Upon the conclusion of the strike International Representative Hackett, by letters
of July 6 and 11, 1962, unconditionally requested the return to work of the striking
employees, naming all 12 of them. Thereafter on July 26 the following employees
reported to Respondent's office and unconditionally requested reinstatement:
Helen Arrick Winona Ruth Pennell
Yvonne Sue Bottoms Sandra Sue Paul
Dremetria Fritz Gordon R Wells
Douglas Gibbs Charles Welch
Mary Goebel Allen James L. Williams, Jr.
Each was notified as following:
You were guilty of participating in misconduct on the picket line during the
strike. It is for this reason that you were terminated from your job at this
factory, and replaced.
ea Al L R B. v. American National Insurance Co., 343 U S. 395; N L R.B. v. Insurance
Agents' International Union, AFL-CIO (Prudential Ins. Co. ), 361 U.S. 477.
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
No evidence was adduced by Respondent at the hearing, however, to support its
contention of strike misconduct by either Bottoms, Kniffen , or Pennell.53
2. Conclusions respecting the failure to reinstate strikers
Employee Helen Arrick credibly testified that the purpose of the strike, among
others, was that Respondent "didn't recall the ones that were laid off." As I have
already found this failure to recall to constitute discrimination in violation of the
Act (supra ), it follows that a strike in protest thereof is properly to be classified as
an unfair labor practice strike.54 Nor is it of consequence that other causes,
economic in nature , also contributed to the calling of the strike , so long as it has been
established that the unfair labor practices "had partly caused the strike ." 55 Such be-
ing the case employees who thereafter engage in such a strike are, upon its conclu-
sion and their unconditional request , entitled to reinstatement to their former posi-
tions irrespective of any intervening replacements 56 As employees Yvonne Sue
Bottoms, Wilma Kmffen , and Winona Ruth Pennell have each been shown to have
unconditionally requested reinstatement and to have thereafter been refused it, I
find and conclude that Respondent thereby discriminated against them in violation of
Section 8(a)(3) of the Act, thereby interfering with , restraining and coercing them
in violation of Section 8 (a) (1) of the Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The operations of Respondent described in section I, above, occurring in connec-
tion with the unfair labor practices described in section IV, above, have a close,
intimate , and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
VI. THE REMEDY
Since I have found that Respondent , by numerous acts and statements , has inter-
fered with , restrained , and coerced its employees in violation of Section 8(a)(1) of
the Act, and that Respondent discriminatorily refused or delayed the reinstatement
of certain of its laid -off employees for reasons of their union membership or activity
in violation of Section 8(a)(3) of the Act, and since I have further found that this
latter conduct of the Respondent was the cause , in part, of the strike of its em-
ployees on June 6, 1962, thereby denominating the work stoppage an unfair labor
practice strike, and since Respondent on July 26, 1962, and thereafter refused to
reinstate certain of the strikers upon their unconditioned request therefor made on
July 6, 1962, as required by law ,57 thereby discriminating against them in violation
of Section 8(a) (3) of the Act, I shall recommend that Respondent cease and desist
from the foregoing conduct and from infringing in any manner upon the rights of
the employees guaranteed by Section 7 of the Act.58
With respect to so much of this Remedy as applies to those discriminated against
by Respondent , clarification is in order . Thus it is to be noted that laid-off employees
and certain of the striking employees have already been recalled to work 59 As the
date of the recall of each of these bears significance to the backpay to which they
are entitled , I shall affirmatively order that all be reinstated , the precise date upon
which such reinstatement would have become effective and the precise position to
which they are to be reinstated in view of Respondent 's economic decision not to
employ women machine operators (supra ), to be determined in compliance negotia-
tions or proceedings . Similarly. I shall order all employees thus discriminated
against to be made whole from the date upon which employment would normally
"As it was alleged in the complaint that only these three were discriminatorily de-
prived of reinstatement , the circumstances attending the Respondent 's refusal to reinstate
the remaining nine strikers were not litigated at the hearing and I make no findings nor
conclusions with respect to them.
64 Mastro Plastics Corp , and French -American Reeds Mfg . Co , Inc v N L R B., 350
US 270, 278
51 N L R B. v . Samuel J. Kobretz, d/b/a Star Beef Company, 193 F. 2d 8, 16-17 ( C A. 1) ;
General Drivers and Helpers , Local 662 , International Brotherhood of Teamsters. Chauf-
feurs , Warehousemen and Helpers of America (Rice Lake Creamery Co ) v N L R B ,
302 F 2d 908 (CAD C ).
66 Mastro Plastics Corp. , and French-American Reeds Mfg Co., Inc v N L . R B , supra
57 N L R B v Mackay Radio cf Telegraph Co , 304 U S 333, 346.
56 N L R B v Lamar Cream cry Company, 246 F 2d 8 ( C.A 5).
59 Wilma Kniffen was reinstated after layoff but thereafter went on strike and was re-
fused reinstatement as a striker
SUNBEAM PLASTICS CORPORATION 1039
have been available to them, absent discrimination, and without compensation for
the period during which they or any of them voluntarily absented themselves from
work to participate in the strike, which computation, in detail, may be left to deter-
mination in compliance negotiations or proceedings. In recommending that the
employees be made whole the backpay should be computed in the customary man-
ner,60 with interest to be added at the rate of 6 percent per annum 61
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon the
entire record, it is recommended that the Respondent, Sunbeam Plastics Corporation,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in International Brotherhood of Operative Potters,
AFL-CIO, by discriminating against its employees in regard to their hire or tenure
of employment, or any term or condition of employment.
(b) Interrogating its employees concerning their own and their fellow employees'
union membership, interest, and activities, soliciting the assistance of its employees
in the surveillance and interrogation of fellow employees, threatening its employees
with a curtailment of work or a closing of its plant in the event of a union election
victory, and granting of increased wages or benefits as a reward to employees for
their opposition to the Union.
(c) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their rights guaranteed them by Section 7 of the National Labor
Relations Act.
2. Take the following affirmative action which it is found will effectuate the policies
of the Act:
(a) Offer immediate and full reinstatement to their former or substantially
equivalent positions and make whole in accordance with and in the manner set forth
in the section entitled "The Remedy," each of the following:
Yvonne Sue Bottoms
Roscoe Crabtree
Shirley Dudley
Charlotte Freudenberg
Margaret Harrington
Winona Ruth Pennell
Delores Johnson
Wilma Kniffen
Marvin Mayes
Alvah Smiley
Mildred Smith
Carolyn Sue Youngblood
(b) 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 for the deter-
mination of the amount of backpay due and the right of reinstatement under this
Recommended Order.
(c) Post at its Evansville , Indiana, plant , copies of the attached notice marked
"Appendix." 62 Copies of said notice, to be furnished by the Regional Director for
the Twenty-fifth Region, shall, after being duly signed by Respondent's authorized
representative, be posted by Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Reasonable steps
shall be taken to insure that said notices are not altered, defaced, or covered by any
other material.
It is further recommended that so much of the consolidated complaint in this
proceeding as alleges that the Respondent, by laying off its employees in February
and March 1962, violated Section 8(a)(3) of the Act, by refusing, or delaying to
reinstate certain of its laid-off employees to their former positions, namely, Jacqueline
Klump, Wilma Kniffen, Ronald McGillen, David Meier, Harold Martin, Paul
Rhodes, and Roy Thompson, violated Section 8(a)(3) of the Act, and by the
manner in which it bargained with the Union as the representative of its employees,
refused to bargain in violation of Section 8(a) (5) of the Act, be dismissed.
61 F IV Woolworth Company, 90 NLRB 289
81 Isis Plumbing & Heating Co., 138 NLRB 716
s2 In the event that this Recommended Order be adopted by the Boaxd, 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 "A Decision
and Order."
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in International Brotherhood of Oper-
ative Potters, AFL-CIO, by discriminating against our employees in regard to
their hire or tenure of employment , or any term or condition of employment.
WE WILL NOT unlawfully question our employees concerning their own or
their fellow employees ' union membership , interest, or activity.
WE WILL NOT solicit the assistance of our employees in the surveillance or
questioning of their fellow employees.
WE WILL NOT threaten our employees that work will be curtailed or the plant
will be closed if the Union represents them.
WE WILL NOT grant our employees or any of them increased wages or benefits
to insure their opposition to the Union.
WE WILL NOT in any other manner interfere with , restrain, or coerce our
employees in the exercise of their right to self-organization , to form labor or-
ganizations , to join or assist the above -named Union or any other labor organi-
zation, to bargain collectively through representatives of their own choosing,
to engage in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, and to refrain from any or all such activities.
WE WILL offer reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights and privileges, and we
will make whole for any loss of pay suffered as a result of our discrimination
against the following:
Yvonne Sue Bottoms Wilma Kniffen
Roscoe Crabtree Marvin Mayes
Shirley Dudley Winona Ruth Pennell
Charlotte Freudenberg Alvah Smiley
Margaret Harrington Mildred Smith
Delores Johnson Carolyn Sue Youngblood
All our employees have the right to form, join , or assist any labor organization,
or not to do so.
SUNBEAM PLASTICS CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify any of the above -named employees presently serving in
the Armed Forces of the United States of their right to full reinstatement upon
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, 614 ISTA
Center, 150 West Market Street, Indianapolis 4, Indiana, Telephone No. Melrose
3-8921, if they have any question concerning this notice or compliance with its
provisions.
Film Inspection Service , Inc. and Local B-57 , International Alli-
ance of Theatrical Stage Employees and Motion Picture Ma-
chine Operators of the United States and Canada. Case No.
15-CA-2200. October 11, 1963
DECISION AND ORDER
On June 4, 1963, Trial Examiner Horace A. Ruckel issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
144 NLRB No. 99.