The Marley Co.

National Labor Relations Board - Board Decisions

Jan 13, 1965

150 N.L.R.B. 919 (N.L.R.B. 1965)

THE MARLEY COMPANY 919
After the Algoma Plywood decision, the Board again had occasion to consider the
application of Section 14(b) in Western Electric Company, Incorporated, 84 NLRB
1019, on the establishment of a unit involving multistate operations. Here again, it
adhered to its interpretation in the Northland Greyhound and Safeway cases of Section
14(b) distinguishing between States prohibiting union shops and those merely regulat-
ing them. In this connection, the majority (Member Murdock dissenting) stated,
supra, footnote 14, at 1022:
Contrary to the views of our dissenting colleagues, in our opinion, this result
is not inconsistent wtih the recent case of Algoma Plywood Co. v. Wisconsin
Employment Relations Board, 69 S. Ct. 586, 1949, where the Supreme Court held
that the laws of Wisconsin regulating union-security agreements had not been
superseded by the National Labor Relations Act, as amended. There is no
necessary conflict, in our opinion, between that holding and the view which we
adopt herein that the States and Federal Government have concurrent jurisdiction
to regulate the union shop, each being supreme in its own sphere.
It follows from this view that any certification which we may issue on the basis
of the election directed below is to be construed as certifying only that federal
requirements have been met by the Petitioner for purposes of enforcement of the
National. Labor Relations Act. The question of compliance by the Petitioner
with State Laws regulating the union shop is a question of State law to be deter-
mined by State authorities in a State proceeding.
The General Counsel has made no showing that the Western Electric case is not
diapositive of the issue here. Apparently the General Counsel's position simply is that
the Board's decision therein is based on an erroneous interpretation of Section 14(b)
and the Algoma decision. If such be the case, it is not for me to say. Insurance
Agents' International Union (The Prudential Life Insurance Company of America),
119 NLRB 768; Iowa Beef Packers, Inc. 144 NLRB 615. Accordingly, I shall recom-
mend dismissal of the complaint.
In any event, since there is no provision in the Wisconsin act for a grace period as is
provided in the Federal Act, it is clear that the Wisconsin act was not violated when
Garczynski was discharged for refusal to join the Union. Regardless whether it be
determined that the State and Federal Boards have concurrent jurisdiction herein or
that the State law is to be enforced by the Federal Board,8 I see nothing in the legis-
lative history or the decisions on this matter that would support the anomalous position
of the General Counsel which would be to "subvert the National Act to the State Act
insofar as the election requirements of the State Act were concerned, but subvert
the State Act to the National Act insofar as the grace period is concerned."
CONCLUSION OF LAW
By causing the discharge of Garzynski because of his refusal to join the Union,
Respondent did not engage in an unfair labor practice.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusion of law, and upon
the entire record, and pursuant to Section 10(c) of the National Labor Relations Act,
as amended, it is ordered that the complaint be, and hereby is, -dismissed in its entirety.
PA result that would seem to be foreclosed by the Supreme Court's decision in Retail
Clerks International Local 1625 v. Alberta Schermerlwrn , 375 U.S. 96.
The Marley Company and Shopmen 's Local Union No. 682 of
the International Association of Bridge, Structural and Orna-
mental Iron Workers, AFL-CIO. Cases Nos. 9-CA-2990 and
9-CA-3040. `January 13, 1965
DECISION AND ORDER
On July 28, 1964, Trial Examiner Arthur E. Reyman issued his
Decision in the above-entitled proceeding, finding that the Respond-
150 NLRB No. 82.
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent had engaged in and was engaging'in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. Thereafter, the Respondent filed exceptions to the
Decision and a supporting brief, and the General Counsel and the
Charging Party filed limited exceptions.- The General Counsel also
filed,a brief in support of his limited exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision and the entire record in this case, includ-
ing the exceptions,and brief, and hereby adopts the findings, con-
clusions, and recommendations of the Trial - Examiner to the limited
extent indicated.
1. Like the Trial Examiner we find a violation of Section 8(a) (5),
but we base it entirely upon the Respondent's November 21 repudia-
tion and change of contract proposals agreed to earlier. We do not
find, as alleged in the complaint, that a bargaining contract com-
plete in all its terms was concluded by the parties on November 20,
or that the Respondent by subsequent conduct unilaterally withdrew
the strike settlement proposal it made on November 20.
The facts are that the Respondent Employer and the Charging
Party Union had bargained for a production and maintenance unit
for many years ;' the Union had again been certified in 1961 when un-
successfully challenged as bargaining representative by another union;
the last contract of the parties expired on July 31, 1963; and before
the latter date the parties began bargaining for a new contract.
At the start of negotiations each party submitted a complete con-
tract proposal, conforming in organization to the expiring contract
with its 27 sections. At the negotiating meeting held September 26-
the last meeting before the strike which began on September 30
following the parties' failure to agree on a contract-the proposals
were discussed section by section, with the parties agreeing to follow
the expired contract on more than half the sections. At that time,
according to testimony for the Respondent, the Union was not in
agreement with it on wages, grievance procedure, arbitration, and
the section on strikes and lockouts, but had agreed upon certain
changes in the existing management section and the health and
THE MARLEY COMPANY 921
welfare section, and had agreed to delete a proposed section on moon-
lighting. According to testimony for the Union, wages, vacations,
and the safety and health section with respect to safety glasses were
still in issue on September 26.
The parties continued their bargaining sessions during the strike.
Early in November the Respondent began hiring strike replace-
ments. Several more negotiating meetings were held and, on No-
vember 20, the Union, according to its testimony, dropped its pro-
posals with respect to wages and vacations and made a concession
on holidays in order to secure "five cents on the third year base rate"
of wages. Testimony for the Respondent confirms the fact that
wages, vacations, and holidays were subjects discussed that day; in
addition it refers to a concession by Respondent for a 5-day rather
than a 2-day notice on grievances. However, it is not disputed that
the parties did not go over the entire set of proposals on Novem-
ber 20, or "clear their notes" on what had by that time been agreed
upon. Most of their discussion was_ devoted to the return of strikers
to work. The Respondent agreed to hire no more replacements until
noon of November 22, by which time the Union was to take a vote
on the settlement proposal and • to submit names and current ad-
dresses of all those seeking reinstatement. There were then 138
strike replacements, constituting a majority of the prestrike com-
plement of 217. The Respondent a was determined to protect, the
rights of these replacements and not to require them to become union
members. Apparently for this reason the Respondent, at the close
of the November 20 session, took the position that the union-security
clause of the contract would have to be rewritten. The Union chal-
lenged this, and it is clear that there was no agreement on union
security. In the circumstances we conclude that the terms and con-
ditions of a complete collective-bargaining agreement were not
reached by the parties on November 20.
On November 21, the Respondent- according to its testimony
"pulled together" the written form of contract -in evidence as Gen-
eral Counsel's Exhibit No. 16, and in the evening delivered it to the
Union, which had chosen not,to participate in the session that day
because its representative was away from his home office and lacked
some of his notes. The contract 'proposed by the Respondent con-
tained an open-shop clause instead of union-security. In addition,
according to the testimony of Union Representative Rutherford,
which was credited by the Trial Examiner, numerous sections pre-
viously agreed upon were substantially changed by the Respondent,
as follows: checkoff, by making it revocable at will; holidays, by
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
making additional eligibility requirements; wage rates, by adding
certain conditions; vacations and vacation pay, by changing eligibil-
ity features; seniority, by limiting the shop steward's receipt of
recall notices to recall of members, and other changes ; leaves of
absence, by making the grant of leave to a business agent discretion-
ary rather than mandatory; arbitration, by changing provisions for
selecting an arbitrator and other modifications; strikes and lockouts,
by omitting a no-liability clause based upon the Union terminating
unauthorized strikes and work stoppages; safety and health, by re-
writing the provision for replacement of safety glasses. The Union
did not present the contract to the membership meeting the next
morning.
These changes proposed by the Respondent 'unilateral
'
ly repudi-
ated a consensus reached on numerous contract provisions after
almost 5 months of bargaining. We view the Respondent's unilat-
eral action in proposing a contract with substantially changed pro-
visions at this stage of negotiations as a negation of its duty to
bargain in good faith. Hence we find that the Respondent thereby
refused to bargain within the meaning of Section 8(a) (5).
The Trial Examiner also found, partially based on this withdrawal
of contract proposals in violation of Section 8(a) (5), that the Re-
spondent by its own action converted the economic strike into an
unfair labor practice strike. We do not find it necessary to consider
this matter inasmuch as the strike ended early the next day and the
Respondent promptly set about reinstating the- strikers.
2. The union members voted on the morning of November 22 to
accept a strike settlement proposal, and 154 of them signed a list
delivered to the Respondent as an unconditional offer to return to
work. The complaint alleged that the Respondent on November 20
had offered to return the strikers to work "or place them upon a
preferential hiring list." The Respondent contends, however, that
what it proposed was to bring its work force back to the prestrike
level of 217 by promptly 'recalling the 79 unreplaced strikers with
the most seniority-which, as the record shows, it did-and, if it
found it practicable to augment inventory as discussed with' the
Union on November 20, to take back the remaining strikers-which
it also did, as the record shows, by early February 1964.
In the meantime, on December 2, the Respondent advised the re-
maining strikers not included in the group of 79 to apply as new
employees. The general circular reprinted in footnote 5 of the Trial
Examiner's Decision contained this advice. The Trial Examiner
THE MARLEY COMPANY 923
termed this action by the Respondent a constructive discharge of
those affected and recommended the finding of an 8(a) (3) violation
and a remedial order based upon it. We do not agree inasmuch as
we credit the Respondent's version of the strike settlement proposal,
and we find that, so far as this record shows, that proposal has been
fully implemented. Although the question is not without difficulty,
we believe that the Union may have understood that the remaining
strikers "would return as soon as other jobs became available" and
"as if nothing had happened," and assumed that this also meant with
seniority intact, while the Respondent, which was creating new jobs
for these remaining' strikers, had no such understanding. We do
not infer from the Respondent's November 27 letter to the Union,
quoted in full in the text of the Decision and also referred to at the
end of footnote 6 by the Trial Examiner, that the Respondent was
departing from its November 20 offer out of pique because of the
Union's failure to accept its written contract proposal of Novem-
ber 21. The record as a whole, we believe, supports the Respondent
in 'its contention that it promised to take back with full seniority
only enough strikers to achieve the prestrike employment level and
to give the others preference in hiring if they made application as
new employees. Accordingly, we shall dismiss the 8(a) (3) allega-
tion of the complaint, as well as the portion of the 8(a) (5) allega-
tion- concerning -withdrawal of the strike settlement proposal after
acceptance.
THE REMEDY
Inasmuch as the only 8(a) (5) violation found herein involves the
Respondent's unilateral change in contract proposals on Novem-
ber 21, after many months of bargaining, we shall order that the
Respondent cease and desist from such conduct and resume bargain-
ing upon request.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended,;the Board hereby adopts as its Order the Recommended
Order of the Trial Examiner and orders that the Respondent, The
Marley Company, its officers, agents, successors, and assigns, shall
take the action set forth in- the Trial -Examiner's Recommended
Order, with the following modifications :
1. In paragraph 1(a) change the period at the end to a comma,
and add: "as the exclusive representative of the employees in the
certified unit."
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Substitute the following for paragraph 1(b) :
"Unilaterally changing contract provisions agreed upon in the
course of negotiations, or in any like or related manner interfering
with, restraining, or coercing its employees in the exercise of rights
guaranteed them in Section 7 of the Act."
3. Delete paragraphs 2(b) and 2(c), and renumber the subsequent
paragraphs accordingly.
4. The last three indented paragraphs of the Appendix shall be
deleted and the following substituted therefor :
WE 'WILL NOT unilaterally change contract provisions agreed
upon in the course' of negotiations, or in any like or related man-
ner interfere with, restrain,. or coerce our employees in the exer-
cise of rights guaranteed them in Section 7 of the Act.
The note concerning the Armed Forces shall likewise be.deleted from
the Appendix.
IT IS FURTHER ORDERED that the complaint herein, insofar as it
alleges the commission of unfair -labor practices. not found in this
Decision and Order, be, and it hereby is, dismissed..
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This is a proceeding under Section 10(b) of the National Labor Relations Act, as
amended , 29 U.S.C., Sec. 151, et seq., herein called the Act.
Shopmen 's Local Union No. 682 of the International Association of Bridge , Struc-
tural and Ornamental Iron Workers , AFL-CIO, herein sometimes called the Union,
filed a charge , amended charge, and second amended charge in Case No. 9-CA-2990
and a charge in Case No. 9-CA-3040 on October 10, November 4 and 29, and De-
cember 5, 1963, respectively, which said charges and amended charges were duly
served upon the Respondent , The Marley Company. Thereafter, on January 29,
1964, the General Counsel of the National Labor Relations Board , on behalf of the
Board , by the Regional - Director for Region 9, issued an order consolidating cases,
complaint , and notice of hearing . , The complaint sets forth acts by the Respondent
through named agents which are alleged to constitute unfair labor practices within
the meaning of Section 8(a)(1), (3 ), and (5) of the Act. The Respondent on
March 10 , 1964, filed an answer to the complaint , effectively denying violations of
the Act, and setting tip certain affirmative defenses.
Pursuant to notice , these consolidated cases came on to be heard before Trial Exam-
iner Arthur E. Reyman at Louisville , Kentucky, on April 7, 1964 , the hearing being
closed on April 10. At the hearing, each party was represented by counsel and was
afforded full opportunity to call , examine, and cross-examine witnesses , to present evi-
dence relevant and material to the issues of the cases, to submit proposed findings and
conclusions , to argue orally upon the record , and to file briefs . Briefs have been sub-
mitted on behalf of the General Counsel , the Respondent , and the Union , and have
been carefully considered.
Upon the entire record , and from my observation of the witnesses , I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Marley Company is a Delaware corporation with plants located in several
States of the United States, including one in Louisville, Kentucky, where it is engaged
in the manufacture, sale, and distribution of cooling equipment and related products.
THE MARLEY COMPANY 925
During the 12 months immediately preceding the issuance of, the complaint herein,
which is a representative period , the Respondent had a direct outflow of its . products
in interstate commerce, valued in excess of $50,000, which products were sold and
shipped from its said Louisville, Kentucky, plant directly to points outside the State of
Kentucky. During the same period , Respondent also had a direct inflow of goods and
materials in interstate commerce valued in excess of $50,000, which goods and mate-
rials were received at its said Louisville, Kentucky, plant directly from points outside
the State of Kentucky. -
At all'times material herein , Respondent has been an employer as defined in Section
2(2) of the Act, engaged in commerce and in operations affecting commerce as defined
in Section 2(6) and (7).
II. THE LABOR ORGANIZATION INVOLVED
Shopmen's Local Union No. 682 of the International Association of Bridge , Struc-
tural and Ornamental Iron Workers , AFL. CIO, is, and at all times material herein
has been , a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Pleadings
The issues are drawn by the complaint and the answer thereto.
The complaint alleges, and the answer admits, that the Union was certified by the
Board in Case No. 9-RC-4363 , as the exclusive collective -bargaining representative of
Respondent 's employees in the following described unit, appropriate for the purposes
of collective bargaining:
All production and maintenance employees at the Employer 's Louisville , Kentucky,
plant, including dispatchers, inspectors , plant clerical employees , shipping clerks,
receiving clerks, and stock clerks; but excluding office clerical employees, janitors,
engineering department employees , the time-study engineer , technical employees, pro-
fessional employees , and all supervisors as defined in the Act.
The complaint asserts that at all times since January 6, 1961 , the Union has been and
is the exclusive collective -bargaining representative of all employees in said bargaining
unit at the Respondent 's Louisville plant . The answer admits that on July 6, 1961,
"and continuing through September 30, 1963 , the Union was the exclusive bargaining
representative of the employees " in the appropriate unit.
The complaint further alleges that commencing on or about June 15, 1963, and at
various times thereafter , the Respondent and the Union met and bargained with
respect to a new agreement covering rates of pay, wages , hours of employment, and
other conditions of employment of Respondent 's employees ; that on or about Sep-
tember 30, 1963, the employees of the Respondent , in the unit above described,
concertedly ceased work and went on strike to enforce certain bargaining demands
made by the Union on the Respondent; that employees of the Respondent on layoff
at the time of the concerted work stoppage joined in the strike; that on or about
November 20, 1963, Respondent and the Union reached agreement on the terms
and conditions of a new agreement and that on or about the samei date, the Respond-
ent offered the Union a proposal to settle the pending strike on the basis "inter alia"
that the striking employees would return to work or be placed on a preferential
hiring list; that on or about November 22,,1963, the Union accepted the Respond-
ent's strike settlement proposal 'and unconditionally offered to return to work or to
accept preferential hiring, as the case might be, in accordance with the Respondent's
strike settlement proposal ; that on or about December 2, 1963, Respondent mailed a
letter to the striking employees notifying them, in substance , that they were dis-
charged and would be considered for reemployment only upon application as new
employees; and that theretofore, commencing on or about November 21, 1963, the
Respondent has refused and continues to refuse to bargain collectively in good faith
with the Union as the certified collective-bargaining representative of the Respond-
ent's employees by (a) failing and refusing to reduce to writing , for signature, the
contract proposals previously agreed to by the . parties; (b) withholding the contract
proposal previously agreed to by the parties; (c) unilaterally changing contract pro-
posals previously agreed to by the parties on or about November 20, 1963 ; and (d)
unilaterally withdrawing the strike settlement proposal after acceptance by the
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union. Further the complaint alleges that since on or about November 21, 1963,
the strike by the Respondent's employees had been prolonged and continued by the
Respondent's unfair labor practices so alleged , and at all times since that date such
strikers have been engaged in an unfair labor practice strike.
In denying the allegations of the complaint set forth in the paragraph immediately
preceding this, Respondent sets up for defense that during the course of the strike
which started on September 30 and ended on November 22, 1963, the Respondent
hired permanent replacements for the striking employees and as of November 20,
1963, the Respondent had hired 138 permanent replacements for such striking
employees; and that as of September 30, 1963, 217 individuals were employed in the
above-described unit.
Further answering the Respondent admits that on November 22, 1963, Archie
Wojciechowski, business representative of the Union, notified the Company that, with
2 exceptions, the 79 most senior employees desired to return to their jobs in accord-
ance with the offer of the Respondent to the Union confirmed by letter delivered to
the Union on November 21, 1963; that Respondent mailed a letter dated December 2,
1963, addressed to those striking employees who had not been reinstated, notifying
them in substance that the Company had been able to offer reinstatement to 79 of
the striking employees, that further job openings would be filled from current job
applications and suggesting that the striking employees who had not been reinstated
make application for employment as new employees. The Respondent further states
in its answer that negotiations with the Union commenced on June'15, 1963; that 13
bargaining sessions were held before the strike began on September 30, 1963, and
thereafter 6 bargaining meetings were held prior to the end of the strike on Novem-
ber 22, 1963; that since that time negotiations between the Respondent and union
representatives have continued and bargaining sessions "had been held on Decem-
ber 12 and December 13, 1963, and also on February 3, 1964"; that at no time during
these negotiations, commencing on June 15, 1963, and extending through February 3,
1964, did the Respondent and the Union ever reach complete agreement on all the
terms and conditions of a new collective-bargaining agreement; that following the
negotiation meetings on November 20, the Respondent on November 21 drafted a
contract proposal to submit to the Union; that this contract proposal contained many
articles, sections, and paragraphs upon which tentative agreement had been reached
by the union and company committees during negotiations; that this proposal also
contained provisions upon which no agreement had been reached during negotia-
tions and other provisions as to which the Company had revised its proposals because
of changed conditions in the plant; namely, the fact that out of 217 employees who
had gone on strike, 138 had been replaced; that although the striking employees held
a meeting on November 22 and voted to end the strike, the Union "has advised
Respondent that Respondent's'contract proposal was not submitted to the employees
for acceptance"; and that no action has been taken by the Union, with or without
ratification by the employees, either to accept or reject the Company's contract pro-
posal since its submission to the union representatives on November 21.
Background
The Union was certified as bargaining representative in 1948, and again in 1961.
On August 1, 1961, the Company and the Union executed a collective-bargaining
agreement which by its terms remained in full force and effect until midnight, July 31,
1963, "and, unless written notice be given by either party to the other at least
sixty (60) days and not more than ninety (90) days prior to such date of a desire
for change therein or to terminate the same, it shall continue in effect for an addi-
tional year thereafter."
On July 15, 1963, bargaining sessions began and continued until September 30,
1963, when the employees comprising the bargaining unit went on strikes to enforce
their bargaining demands.
Until September 30, the Respondent raised no question as to the Union's majority
status but denies that this majority status continued after September 30.-.
On July 15 the parties held a preliminary meeting, at which time ther represen-
tatives exchanged proposals. '
Without regard to content, but for convenience only, it may be noted that the
index of the union proposal presented on July 15 listed, in identical form to that of
THE MARLEY COMPANY 927
the contract to expire on July 31, the headings of the sections and pages to describe
the provisions of the new contract. These section numbers, some of which will be
mentioned below, are these:
INDEX
Section Page
Parties to Agreement, Effective Date------------------------- Preamble 1
Bargaining Unit-Maintenance Work------------------------------- 1 1
International Union Not a Party---------------------------------- 2 2
Union Recognition---------------------------------------------- 3 3
Union Security------------------------------------------------- 4 4
Check-off of Union Dues-Initiation and/or Reinstatement Fees-------- 5 5
Management Prerogatives-Shop Rules----------------------------- 6 6
Hours of Employment------------------------------------------- 7 7
Overtime Pay--------------------------------------------------- 8 8
Recognized Holidays-"Holiday Pay"------------------------------ 9 9
Classifications-Work Assignments-Rates of Pay-------------------- 10 10
Pay Days, Bonus and Piece-Work--------------------------------- 11 11
Reporting Pay-------------------------------------------------- 12 12
Vacations------------------------------------------------------ 13 13
Welfare Benefits------------------------------------------------ 14 14
Erection and Field Fabrication------------------------------------ 15 15
Apprentices----------------------------------------------------- 16 16
Seniority------------------------------------------------------- 17 17
Leave of Absence----------------------------------------------- 18 18
Grievance Proceduv -------------------------------------------- 19 19
Arbitration----------------------------------------------------- 20 20
Strikes and Lockouts-------------------------------------------- 21 21
Plant Visitation------------------------------------------------- 22 22
Bulletin Boards------------------------------------------------- 23 23
Safety and Health----------------------------------------------- 24 24
Saving Clause-------------------------------------------------- 25 25
Interim Amendment--------------------------------------------- 26 26
Duration and Termination---------------------------------------- 27 27
On the same day, July 15, company representatives presented to the Union a
proposed agreement with an index identical to that above set forth except that
section 19, page 19, of the Company's proposal was entitled "Grievance Procedure
and Arbitration"; a new heading, "Shop Committee," was listed as section 20 on
page 20 and the Union's heading, "Arbitration," did not appear; a new heading,
"Outside Employment and Seniority," appeared as section 26, page 26, and the union
index heading, "Interim Amendment," did not appear on the index presented by the
Company.
The contract proposals as exchanged were complete in most respects.
Including the one of July 15, there were 22 separate bargaining sessions , 13 prior
to the strike, 6 during the strike, and 3 after the strike ended. Bargaining sessions
were held July 15 through 19, 30, and 31; August 1 and 2; September 23, 24, 25, and
26; October 17, 25, and 26; and November 6, 7, and 20. Thereafter, meetings were
held on December 12 and 13, 1963, and February 3, 1964.
During these times, the principal spokesman for the Union was J. W. Rutherford,
International representative, assisted by Archie L, Wojciechowski, business agent,
Ernest C. Mein, vice president in charge of production, was chief negotiator for the
Company; Roger Fortin, plant manager, and Richard Haas, personnel manager,
assisted Mein.'
As nearly as can be determined from the record, the parties were in fair agree-
ment at the hearing as to what had transpired up to and including the meeting of Sep-
tember 24. Not much progress had been made on July 30 and 31 and on August 1
and 2. Sections 10 and 21 had been discussed but not agreed to. Disagreement is
reflected concerning the classifications and rates of pay. On September 23, both
union and respondent witnesses agreed that no progress had been made except that
the Company had agreed to drop its proposal on "moonlighting" contained in section
26 of the company proposal.
'Joseph Cameron is president of Respondent and Richard J. Powell is vice president
of operations.
775-G92-65-vol 150-GO
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union claims that as of September 30, agreement had been reached on all
sections for a new contract except portions of section 10 (wages), section 13 (vaca-
tions), and section 24, subsections C and D (prescription glasses and protective
clothing). At this time section 19(C) concerning grievances had been discussed and
rediscussed. Mein testified that as of the last meeting prior to the calling of the
strike on September 30, the parties had agreed on all issues except those contained
in sections 10, 13, 19, and 24. The parties agree that apparent substantial agree-
ment had been reached on these sections and possibly on section 24 and that subse-
quent discussions were limited to those sections, except for a part of those proposed
provisions governing holidays. It seems clear now that on September 23 the Union
made a "package proposal" to the Company which was not accepted.2
On September 24, section 6, the management rights clause, was agreed upon and
section 7 agreed to in its entirety. On September 24, sections remaining open were
5, 9, 10, 13, 14, 18, 19, 20, 21, and 24, some of which were "open" in only minor
respects. On that day, it appears that the Company had proposed certain increases.
It seems that all of these sections refer to the Company's proposal as originally sub-
mitted with the exception of sections 9 and 17. Important provisions left open on
this day included the Company's complete elimination of checkoff as provided in
section 5. Section 19 and 20 governing grievance procedure and arbitration and
section 21, a no-strikes clause, were still open, the Company adhering to its original
position as set forth in its proposal of July 15. As of September 24 the Company
and the Union had, then, each submitted a so-called packaged proposal, the one to
the other, both such proposals being rejected.
On September 25 a long session was held and a determined effort was madei by
each party to close out the issues in dispute. Rutherford testified concerning dis-
cussions regarding the checkoff (section 5), sections 10, 13, 14, and 19(C), and at
least tentative agreement on sections 20 and 21. Apparently most of the progress
made on that day was after a lunch and recess. The) parties discussed certain provi-
sions still open, then discussed the package deal, and then went back again to fur-
ther discussion of the several provisions still open and unagreed to. On the after-
noon of that day Mein met with the union committee separately so that Rutherford,
Wojciechowski, and Fortin were in a separate room during the meeting between
Mein and the committee; Mein and the committee met for approximately 4 to 5
hours; subsequently time out was taken by all the parties for dinner and the presen-
tation of a birthday cake to Fortin; subsequently, about 10 p.m., everyone gathered
and Rutherford, Wojciechowski, Fortin, and a commissioner of the Federal Media-
tion and Conciliation Service were advised as to what progress had been made
between the committee and Mein. Rutherford would not accept the package pro-
posal of the Company as presented by Mein, and the Company, would not break
down its proposal. The parties having reconvened about 10 o'clock that evening,
Mein started reviewing the progress of the afternoon meeting and when he came to
the subject of section 10 (progressions) it became obvious to all that whatever
agreement Mein and the committee thought they had reached was unacceptable and
finally the meeting adjourned.
On the following morning, September 26, the Union held a membership meeting.
Negotiations werei resumed that afternoon and no progress was made after discuss-
ing, among others, sections 10, 13, 19, and 24. The union membership meeting had
refused to accept the Company's proposals, particularly the one of September 24,
although, according to Rutherford, the membership approved all sections except 10,
13, and 24. On September 26, the Union informed the Company that a strike dead-
line was set for September 30. During the course of the meeting on September 26,
a new union proposal was submitted by Rutherford, which was refused by the Com-
pany. Sections 10, 13, and 24 were discussed but no agreement was reached.
Before any further meeting between the parties or their representatives, the strike
began on September 30.
When the strike began, there were 271 employees on the seniority list and out of
this number 217 were actively employed. There were 54 employees on the seniority
list who had been on layoff for some time. On September 30, the Respondent had
scheduled the layoff of approximately 100 employees for a 2-day period while inven-
tory was being taken at the plant. These employees did not return to work as
scheduled and many of them joined the strike which began on that day. (It seems
that the 54 employees who had been laid off prior to the strike actually did join in
the strike.)
2 According to a memorandum prepared by Personnel Director Haas concerning the
status of negotiations on July 19, tentative agreement between the parties had been
reached on sections 3, 5, 6, 7, 9, 10, 13, 14, 17, 18, 19, 20, 21, 22, 24, 26, and 27.
THE MARLEY COMPANY 929
Thereafter the parties met on October 17, Rutherford and Wojciechowski agree-
ing that they would drop their demands concerning section 24 (safety and health)
and that Fortin so informed Mein so that the latter would know that there was
agreement on that section. Rutherford contends that when the Union conceded on
its proposal on section 24, negotiations were closed. This is in conflict with testimony
to the effect that Fortin did not agree that section 24 was disposed of, but had said
only that he would convey the information to Mein. Fortin was positive that he did
not abandon the Company's proposal with respect to section 24 The other issues still
open from the September 24 meeting were not discussed. On October 25 and 26-
no progress was made toward settlement. On November 6 Mein and Rutherford met'
at the Executive Inn and then discussed wages, holidays, vacations, and certain of the
grievance steps provided for in section 19. They explored a rearrangement of the
economic package in an effort to solve the cost items inherent therein and reach
tentative agreement on the money issue. It was then agreed that Mein would present
the proposal to the union committee on the following day. That evening Mein tele-
phoned Rutherford and told him that he preferred not to make the proposal, but if
Rutherford would make it the Company would accept, stating as his reason therefore
that this probably would eliminate the possibility of a later union rejection.
On November 7 the full union committee met with company representatives at the
Sheraton Hotel, discussed the previous meeting between Mein and Rutherford, but
could not agree as to which side was going to make the proposal. That proposal
was abandoned. On the same afternoon the Union presented a different proposal to
the Company which was rejected.
On November 9, Mein notified Rutherford by telephone that the 'Respondent
intended to open the plant on November 11 and to then begin calling replacements.
Rutherford requested Mein to defer such action in order to give him time to get the
Union's position on the matter not later than November 15. On November 15
Rutherford wrote to Mein and said in part, "I do not desire to request a revocation
of the International agreement nor do I wish to publicize to the outsides Local Unions
in New York or elsewhere of terminated relationships between your Company and
this International," and went on to suggest that a bargaining meeting be set up for
November 18. The parties met again on November 20.
The Respondent had begun hiring employees to perform work while the plant was
struck, and to assist the supervisors in attempting to maintain production or at least
part production.
Up until this time at least, there is no claim that the strike had been anything other
than an economic strike.
Events on and Subsequent to November 20
There are sharp conflicting statements between representatives of the Union and
the Respondent as to what concessions, advantages, or other changes in position were
agreed to on November 20.
Rutherford, the chief negotiator for the Union, says that the Union abandoned its
position on section 19 (grievance and arbitration) and that the Union retreated or
gave up on its proposals in connection with sections 10 and 13 (involving classifica-
tions and pay rates and vacations). Wojciechowski corroborated Rutherford's state-
ment that the Union conceded on sections 10 and 13. -
According to the testimony of Mein, discussion was had concerning sections 9,
10, 43, and 14 as set forth in the several proposals then before the negotiating par-
ties, and said that the Company would not go further on its offer with respect to
sections 10 and 13, suggested that the employees return to work, and that the
Respondent could take back as many men for whom jobs might then be available if
the employees applied for such jobs. According to Mein he informed the union
representatives that the union-security clause as proposed by the Union could not
stand and that certain other clauses "had to be changed."
At this time the specific language of a contract embodying the "agreements then
reached had not been drafted, so that still open at this point in the sense that they
were not fully agreed to, were clauses having to do with holidays, wages, vacation
qualifications, retroactive pay for striking employees,, union security, and other more
or less minor details of contract provisions.3
8 Since at this time the proposals the parties were negotiating from, contained in
three documents (the Company's original proposal, the Union's original proposal, and
the most recent contract), it is clear enough from the record as a whole that the question
of wages and other economic issues and the replacement of strikers were still open.
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In connection with the return of strikers, Union Committeeman John Voelker
wanted to know whether the strikers would have to fill out application forms as new
employees, to which Mein replied that it would not be necessary for the strikers to
make applications as new employees, but each would be taken back according to
seniority and without loss of benefits. There is no doubt in my mind that Ruther-
ford at the close of this meeting felt that the parties were in fairly close agreement
but "there were things the parties left to be worked out at a later date." For exam-
ple, the Company raised the question of the legality or illegality of the union-security
clause; it appears that the question of wages and job classifications and the replace-
ment of strikers in connection therewith was still open. At that time about 100 peo-
ple were then employed and that there were approximately 216 jobs available should
the average employment for that time of year be maintained.4
Rutherford testified, as noted above, that "Mr. Mein had told us very emphatically
that if we didn't let him know by noon of the 22nd that the people were going back
to work ... then he was going to resume hiring these people through his employment
service ... but if we could let him know by noon on the 22nd then he would start
hiring our strikers ... but he said we will not call anybody else on the 21st and we
will cease hiring those people ... until we hear from you on Friday. Of course, that
was the agreement." Rutherford at the time of the luncheon recess on November 20
felt that Mein was of the opinion that the Union and the Company had reached an
agreement . He said too, that before the evening recess on that day he had asked
Mein whether they had a full agreement and that Mein had replied that they had.
The meeting was then recessed until 6:35 p.m. There were, at that time, open con-
tract provisions which included the question of wages and replacement of'strikers.
Commissioner Kirkham of the Federal Mediation and Conciliation Service was
present at the evening meeting of November 20, and is reported to have said in the
presence of Mein that the Company would hire back, as needed, all the employees
with seniority and full rights restored; that Mem thereupon confirmed the statement
of Kirkham and said that it would do so because the parties had agreed upon a
contract. It was agreed that the return of the strikers would be upon the basis of
seniority, that the Company would get in touch with the strikers and asked that the
Union furnish him with the names, addresses, and telephone numbers of employees
desiring to return to work beginning November 25. The Union agreed to publicize
this arrangement. Further, it was agreed that the Union would notify the Respondent
of the results obtained by noon on November 22.
According to the testimony of Rutherford and Wojciechowski, Voelker asked Mein
how soon Respondent would have all the men return to work; that Mein replied that
"all" would be recalled no later than January 1, 1964, and that the Company intended
to hire 20 employees on November 25, 20 on November 26, 20 on November 27,
and then recommence hiring on December 2, Mein giving the reasons therefor and
the problems encountered or to be encountered; that Voelker specifically asked Mein
if his offer to recall the strikers meant that the Company intended to recall only
enough of the strikers to bring the employee payroll up to the prestrike level of 217
and that Voelker had explained to Mein that if the latter did mean to recall only
a small number of the strikers under the offer, that the majority of the strikers would
not have jobs and therefore there would be no need for a vote to return to work;
that Mein assured Voelker that that was not the case and reaffirmed that Respondent
intended to inflate production in order to be able to put all of the striking employees
back to work. Voelker testified:
In the morning session after Mr. Mein told us that he had some employees
that they were going to keep, I asked him if we had to fill out applications to
come back to work and he assured me that this was not true, that he just wanted
to find out who wanted to come back to work and that all people who would
come back would come back with all their seniority and all their rights. Then
in the afternoon meeting I asked him if they only intended to call back the
difference between the number of employees that we had when they went out
on strike and the number they hired while we were out on strike and he
assured me that that was not true; that Mr. Cameron had authorized him to
inflate production , to increase employment and he said that he didn't know how
long it would be before he could get all the men back to work; that he had to
acquaint the foremen with the situation , and he had to get the orders out on the
floor and start the other shift .... Mr. Mein told us that his economic pro-
posals remained the same; his offer was still the same on the Section 10, on the
4 Testimony is rather confusing on this point but it does sl em that if, as testified to by
Plant Manager Fortin, the employment figure, except for the strike, would have been
around '300, but there was something like 200 jobs which ordinarily would be open.
THE MARLEY COMPANY 931
money and on the vacations and Mr. Rutherford told him that we would pre-
sent this to the men and see, and in recap , I think Mr . Rutherford confirmed
Section 9 where they had had a meeting that we wasn 't present, that they would
give 90 days for new employees before they would get any holiday pay and
that they would give us a nickel raise on the basis on the third year and Mr.
Rutherford told him , I don 't remember the words , but something to the effect
that that should clear it all up and Mr . Mein said that was fine.
The testimony of Rutherford is too long to report here, except as above noted, but
after listening to his testimony , and the testimony of Wojciechowski and Voelker, I
am convinced that Rutherford was convinced , and rightly so, that at the end of the
November 20 meeting the parties were in substantial agreement on the provisions of
a new contract.
On the following morning, November 21, Mein called Rutherford by telephone
and suggested that he desired to make in insertion in section 13 to the effect that
employees off for less than 30 days because of an illness or an authorized leave of
absence would be entitled to have counted as days' work such days for vacation
purposes , to which Rutherford replied that this was a decent gesture on the part of
the Respondent, and agreed to such provision . It then also was agreed that it would
be acceptable for returning employees to list the last three jobs held by the employee
with the Company.
On the ervening of the same day, the Company delivered a draft of a complete
contract to Rutherford . Upon examination , he found substantial changes made,
particularly in sections 5, 9, 10 , 13, 17 , 18, 19 , 20, 21 , 24, and particularly in section 4,
which altered a "union shop " proviso to an "open shop " clause . The covering letter .
or transmittal , dated November 21, 1963 , was addressed to Rutherford and signed by
Mein and shows a copy sent to Commissioner Kirkham . It read as follows:
DEAR JIM : On September 30, 1963 , 217 members of Shopmen 's Local Union
No. 682 went on strike . This was an economic strike as defined by the Labor
Relations Act. As is permitted by the Labor Relations Act, we have hired 138
permanent employees since September 30, 1963 . We intend to increase our work
force to the pre-strike level of 217 employees . To accomplish that end we will
rehire 79 of the striking employees.
As was discussed with you at our meeting November 20, 1963, we have dis-
continued hiring additional permanent employees as of November 21, 1963, we
will hire no more permanent employees until 12 noon November 22, 1963. We
will resume hiring permanent employees at 12 noon , November 22, unless the
Union advises The Marley Company which of the striking employees are will-
ing to return to work. The Union must provide The Marley Company with the
names, correct addresses , and telephone numbers of those striking employees who
will be available for work.
Within five days of the receipt of this notification , The Marley Company will
contact those employees who will be rehired and inform them as to what day
and shift they will begin work . The rehiring will be done on a seniority basis
in the last job they held. If that job is filled, the rehired employee may fill the
next highest paid job if the employee is so qualified.
This proposal is the Company 's entire offer to the striking employees except
that The Marley Company is:
(1) Increasing the allowable maternity benefits to $225 effective as of Decem-
ber 1, 1963;
(2) Increasing the maximum allowable benefits for a semi-private room to
$540; and
(3) Increasing the maximum allowable benefits for a private room to $18
per day, not to exceed a total of $540.
On the morning of November 22, a union membership meeting was held and the
members were advised of the delivery of the Company 's proposal by Mein to Ruther-
ford but because of the changes, the contract was not submitted for approval or dis-
approval by vote of thei membership . The membership did vote on the offer , as they
understood it, to return to work and voted unanimously to end the strike and return
to work. One hundred and fifty -four members of the Union listed their names,
addresses , and telephone numbers as being available for recall.
On the afternoon of November 22 Wojciechowski presented the list to Plant Mana-
ger Fortin on the assumption , according to him , that the first employees to be recalled
would be those with seniority which would bring the level of employment up to the
number of employees on the payroll at the time of the strike ; and that 79 would be
given work immediately at the rate of 15 to 20 employees per day and the remaining
strikers would be thereafter recalled as production increased according to what the
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.union representative said Mein had promised. On this afternoon of November 22,
Wojciechowski said that Fortin assured him that the striking employees would be
returned "as if nothing had happened."
The Respondent reinstated the first 79 employees on, the seniority list with full
seniority. Upon being advised that the Union had not approved the proposal of the
Company as presented by Mein to Rutherford on the evening of November 21, the
Respondent recalled employees lower than 79 on the seniority list as new employees.
Mein and Fortin testified that there was no agreement to "inflate" the payroll to
300 people after the strike settlement but said that the Respondent agreed that the
difference beween 217 (the prestrike level of employment) and 138 (the strike replace-
ments), or a total of 79, would be rehired with full seniority immediately and that
the remaining strikers would be given preference in hiring if they made an applica-
tion to return to work. The remaining strikers, according to Mein as supported by
Fortin, were to be given preference in hiring if they made an application to return to
work; the remaining strikers would be returned to work without seniority. As a
result (and the Company says in accordance with its agreement), the Company did
return these 79 strikers to work, and has given preferential hiring to the remaining
strikers. I credit Mein and Fortin when they say that Mein informed the Union that
the Respondent had an obligation to the 138 replacements and that the Respondent
would not agree to any settlement which would cause loss of their lobs or which
would allow replaced strikers to have seniority superior to the replacements. Further,
I believe Mein when he says that he informed the Union that he did not intend to
discharge the replacements or compel them-to join the Union. When Wojciechowski
agreed with Fortin as to the 79 strikers who would be immediately called back to
work they did not discuss anything other than the return of these 79 men and there
was no limitation placed by Fortin on the number of other men who might eventu-
ally be returned to work.
On November 25 Mein communicated with Rutherford by long-distance telephone
to inquire whether the Union had ratified and approved the Company's last proposal.
The answer was negative.
Under date of November 27, Mein addressed a letter to Rutherford, at the latter's
office in Birmingham, Alabama, which, although lengthy, bears setting forth here in
full:
DEAR JIM: We met with you Wednesday, November 20th, at the Sheraton
Hotel in Louisville, Kentucky, in an effort to resolve the differences between the
Union and this Company. We discussed with you at some length our program
for hiring replacements for the striking employees. We also told you that since
we had hired 138 replacements it would be necessary to amend our contract
proposal with respect to union security. We also discussed certain other changes
in our proposal.
In the course of our meeting Wednesday evening we agreed with you that no
further replacements would be hired until noon Friday, November 22. We told
you we would submit our complete contract proposal to you. We delivered to
your hotel Thursday evening three copies of our proposal, and also handed to
Mr. Kirkham in Mr. Bullitt's office his copy that same evening. We understood
you would hold a meeting of the membership of the Union on Friday morning
to vote on our proposal. If accepted, we understood you would so advise us by
noon Friday and we would then commence to reinstate 79 of the striking employ-
ees. This number in addition to the 138 replacements previously hired would
bring our work force to the pre-strike level of 217 employees.
On Friday morning, November 22, Mr. Joe Kirkham, Federal Mediator,
called and advised me that the Union membership had accepted the contract.
Later Friday the pickets were removed, and that after Mr. Archie Wojcie-
chowski, business representative for the local union, came to our Louisville
Plant and visited with Mr. Roger Fortin. Archie and Roger prepared the list of
79 senior employees to be called back to work, and the time of the return of
these 79 striking employees was agreed upon. All of this was done with the
understanding, at least on the part of the Company, that the contract had been
agreed upon and that the strike was over.
I talked with you on the telephone Monday morning with respect to the with-
drawal of the NLRB charges filed by the Union against the Company and you
advised me at that time that the charges would be withdrawn in a few days. We
talked about the desirability of holding labor-management meetings every 3
months during the term of the contract to work out any problems that may have
arisen. At no time did you give any indication that the contract had not been
accepted by the Union.
THE MARLEY COMPANY 933
Roger Fortin was advised Monday afternoon by Archie Wojciechowski that
the contract had not been accepted, and that striking employees only voted to
end the strike and to return to work. We were certainly surprised to hear this
in view of the advice from the Mediator that the contract had been accepted, the
withdrawal of the pickets and our conversation with respect to withdrawal of
the NLRB charges at future meetings during the contract term. I then called
Joe Kirkham, Federal Mediator, and he also expressed surprise that the contract
had not been accepted. Later Monday evening I talked with Kirkham again and
her told me he had been in touch with you and that you had confirmed the fact
the contract had not been accepted.
In the meantime, we have been proceeding, pursuant to the list agreed upon by
Fortin and Wojciechowski, to reinstate the most senior 79 employees who desire
to return to work.
We are writing you this letter to advise that we will proceed with the reinstate-
ment of the 79 senior employees who desire to return to work.
We understand from Mr. Wojciechowski the strikers were told at the Friday
meeting that they would return on the basis of the Company's proposal. Although
we now understand we do not have a contract with your union, nevertheless we
will abide by this to the extent of putting into effect the wage scale and fringe
benefit program which was encompassed in our most recent offer to the Union.
If this does not meet with your approval in any way, please advise immediately.
The reinstatement of the 79 employees will give us a full working force at the
present time. All other striking employees have been, replaced and therefore
their employment relationships with this company have been, terminated. Future
hires will be obtained in the normal course from current job applications on file.
Those striking employees who were not reinstated and who desire to be con-
sidered for employment as new employees should make individual application
at our Louisville Plant personnel office. Under the circumstances, we must also
advise you that the check-off of Union dues and initiation fees will be discon-
tinued. [Emphasis supplied.]
We are sincerely disappointed that we were unable to reach agreement with
you. If you desire further meetings, I suggest that you get in touch with me.
Rutherford replied to this letter under date of November 30, commenting on and
disagreeing with a number of the statements made in Mein's letter, and concluding:
Your efforts to have Business Agent Wojciechowski sign the non-negotiated
amended unilateral document Friday, November 22, should recall to you from
such conversation that Section 27 contains no place for the signature of the Busi-
ness Agent and, in addition Section 2 of the unilateral document states emphati-
cally that such must be submitted to Headquarters for approval as to form and
this is historically so.
I will be in touch with you.
Mein on December 5 wrote to Rutherford suggesting that a meeting date be arranged
to which Rutheford under date of December 7 replied and asked that Mein "please
advise at your earliest convenience when we may, resume negotiations and bargain
collectively."
The parties met in Louisville on December 12 and 13. Under date of December 13,
1963, counsel for the Respondent, John K. Bestor, wrote an eight-page letter addressed
to Rutherford, setting forth the Company's position on those provisions of the pro-
posed contract agreed to or not agreed to according to the Respondent's understanding.,
This letter clearly shows that the parties were far apart on their understanding of what
had been agreed to or had not been agreed to on November 20 and subsequent meet-
ings. Although this letter might be regarded as a self-serving declaration, nevertheless
it seems to reflect in general accuracy the testimony of the witnesses for either side as
to what they considered had been agreed or not agreed to during all of the previous
bargaining sessions.5
s Under date of December 2, 1963, Plant Manager Fortiu'had addressed a general cir-
cular to employees which read
To All Striking Employees Not Reinstated
We have been informed that at the union meeting on Friday, November 22, the
- membership voted to end the strike and to return to work As of that time the
Company had hired 138 replacements. In order to being our work force back, to the
prestrike level of 217 employees, we were able to offer reinstatement [to] 79 of the
striking employee,, and the 79 most senior striking employees who desired to return
are in the process of returning to work When these 79 return, all available jobs
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Strike Becomes an Unfair Labor Practice Strike
Manifestly, the strike was called by the Union to enforce its economic demands
theretofore presented by it to the Company. Just as plain is the fact that by with-
drawing the contract proposals which I find previously were agreed upon between the
parties on November 20, and by unilaterally changing contract proposals agreed to by
the parties on that date, the Company by its own actions converted an economic strike
into an unfair labor practice strike.
The unilateral changes are disclosed by examination of the written proposals sub-
mitted by Mein to Rutherford on the evening of November 21. - Such matters as
changing, by putting in writing, the oral agreements previously arrived at concerning
union-security, checkoff of union dues, and other important clauses as reflected in the
Company's proposal delivered to Rutherford about 9 p.m. on November 21, reflect an
effort on the part of the Company to impose its views at the last moment without
regard to prior negotiations and oral agreements reached as clearly demonstrated by
the record.6
The parties continued to meet and bargain after the unconditional offer of the Union
to return the strikers to work after the Respondent had withdrawn from proposals
previously agreed upon. Except for the first 79 employees recalled, those striking
employees who since were recalled had been employed as new employees. In this
situation, the Respondent constructively discharged the remaining striking employees.
This fact is confirmed by a letter sent those employees on December 2 and the admis-
sion of Personnel Officer Haas that the effect of the letter was to terminate the strikers
who at that time had not been rehired or recalled.
Union Majority Status
The Respondent takes the position that after September 30 the Union did not con-
tinue to represent a majority of its employees . In brief, on its behalf , it is stated for
in the plant will be filled. Job openings in the future will be filled from current
job applications on file in our employment office. We are hopeful that we will be
able to hire additional employees in the future If you desire to be considered for
employment as a new employee, we suggest that you make application at our plant
personnel office.
Our most recent contract with the Union expired on August 1, 1963. Under the
terms of that contract, an employee whose employment with the company is ter-
minated, is entitled to receive accrued vacation pay. If you desire to claim this
accrued vacation pay at this time, please complete and mail the attached vacation
pay request to us and a check will be mailed to you.
One hundred and nineteen persons claimed accrued vacation pay. It may be noted that
individual authorization cards have not been retained for present employees but that the
Respondent retains the checkoff cards previously used, none of which have been revoked.
6I have noted that Mein as chief negotiator for the Company was assisted principally
by Fortin , and that Rutherford as the chief negotiator for the Union was assisted by
Wojciechowski. There are sharp questions concerning the reliability of the testimony
of each one of these four men and where such conflict is apparent I have chosen to
accept the testimony of Rutherford and Wojciechowski, principally because Rutherford
kept rather careful notes which, although not complete, show in general the pattern of
negotiations as they developed. Further, there is no inconsistency between Rutherford's
testimony and the testimony of the others, which, I believe, confirms my finding that the
Company, having won the strike, adopted the policy that it could more or less write its
own ticket. As for as Rutherford's notes are concerned, and they seemed fairly com-
plete, they are consistent with the testimony of each witness with respect to the main
events and the main happenings at the several bargaining sessions I have noted, too,
that Mein did not agree on his direct testimony that all issues except those contained in
sections 10, 13, 19, and 24 had been agreed upon at the last meeting prior to the strike
until confronted with his sworn pretrial statement and thereafter on cross-examination
did not, at least to my satisfaction, explain what he meant by his denial. Neither Mein
nor Fortin produced notes to refresh their recollection of what transpired at the many
bargaining sessions , whereas the recollection of the witnesses presented by the General
Counsel at all times could be refreshed by referral to notes made contemporaneously I
have mentioned the letters of the Company, which purport to set forth the Respondent's
position at various times, as containing assertions most favorable to the position of the
Respondent. Therefore , in considering the credibility of the several witnesses, I have
thought it expedient to consider the content of those letters in full and compare the mat-
ters set forth therein with the actual testimony of witnesses called by the Respondent.
THE MARLEY COMPANY 935
the Respondent "that in attempting to prove the Union's majority status the General
Counsel relied on the presumption created by the 1961 certification." I do not believe
this to be the position of the General Counsel.
Obviously the Respondent's position presupposes that the strikers not recalled
after the beginning of the strike had to be excluded in the count of employees within
the bargaining unit. This sort of argument is specious, since the law will not counte-
nance the profit of an employer in opposing a union accomplished through the
employer's own misdeeds. Stoner Rubber Company, Inc., 123 NLRB 1440, relied
upon by the Repondent, specifically holds:
However, when an employer not only refuses to bargain with the Union, but
also unilaterally changes working conditions, he in effect has unilaterally decided
the question concerning representation against the Union. In making such a
decision the employer acts at his peril. If the Union represents a majority of
employees at the time the employer unilaterally changes working conditions, the
employer violates Section 8(a) (5) by his conduct. Conversely, if the Union does
not represent a majority at the time, the employer is not guilty of a refusal to
bargain.
If, in the instant case, the Respondent destroyed the Union's majority by a refusal
to bargain in good faith (as I find it did by reason of the unilateral changes made by
it) and there is no other way to determine this than from the record herein, the Union
majority as of September 15 must be presumed to stand. Although the Respondent
continued to "bargain" with the Union and met with its representatives on Decem-
ber 12 and 13, 1963, and February 3, 1964, the events of these meetings did not con-
stitute true collective bargaining. The main concern of the Union representatives at
this time was in connection with the Company's position in regard to the rehiring of
strikers who had not been recalled to work.?
In view of all of the foregoing, I find that the Respondent on and after November 21,
by repudiating agreements already arrived at, and by changing its position so abruptly,
failed to bargain in good faith with the Union and thus became engaged in an unfair
labor practice in violation of Section 8(a) (5) and (1) of the Act. I expressly find, as
stated above, that what began as an economic strike was converted by the actions of
the Respondent to an unfair labor practice strike and, by reason of this action,
Respondent's subsequent apparent willingness to bargain was meaningless, whereas
bad faith had been demonstrated by presentation to the Union of contract proposals
which omitted, or substantially changed, provisions to which it had previously agreed.
Tomlinson of High Point, Inc., 74 NLRB 681; Mooney Aircraft, Inc., 132 NLRB 1194.
I think that the actions of the Respondent on and after November 21 were intended
to weaken the Union's bargaining position with the members of the bargaining unit
and to acquire for the Respondent an unfair advantage in the collective-bargaining
situation in which both parties were then engaged. I find that an entire collective-
bargaining agreement was orally agreed to between representatives of the parties on
November 20, and that although the company representatives at the end of that
session remarked that certain changes in language might have to be made, especially
in regard to the union-security provision (section 4), that actually when the changes
were made in that provision it radically was changed from a union-security to an open-
shop clause. There is no doubt, and the Respondent admits, of the making and the
injecting of 11th hour demands after the close of the session on November 20.8
The Comparative Rights of Strikers and Replacements
As to those replacements hired before November 21, they have status as permanent
employees. However, the Respondent is not relieved of its obligation to reinstate
economic strikers merely because it hired additional employees during the strike,
7 This case is not the type of case of the many cited by the Respondent in the brief on
its behalf on the point of proof of union majority the burden to rest on the General Coun-
sel to prove such majority. Practically all of the cases cited by Respondent go to
situations where certification was in doubt or certification had lapsed
8In asserting violation of Section 8(a)(1) in this respect, the General Counsel relies
upon Newberry Mills, Inc., 141 NLRB 1167 ; Rice Lake Creamery Company, 131 NLRB
1270, 1295, enfd sub nom . General Drivers and Helpers Union, Local 662, International
Brotherhood of Teamsters, etc. v N L.R.B., 302 F 2d 908 (CA D.C) ; Chas. S. Wood &
Co. 134 NLRB 1, enfd 309 F. 2d 140 (CA. 3) ; J. W. Woodruff, Sr., d/b/a Atlanta Broad-
casting Company, 90 NLRB 808. See also San Antonio Machine & Supply Corp., 147
NLRB 1112.
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unless such additional employees were hired only as permanent replacements for a
particular striker, and to fill the job held by an individual striker. Ohio Ferro Alloys
Corporation, 104 NLRB 542, 544.
Some 56 of the 138 new employees hired during the course of the strike have, since
the acceptance of the Respondent's strike offer by the Union, been discharged. In
this connection, it should be noted that the 79 most senior employees did displace some
of the 138 replacements. Also it should be noted that the Respondent did not decide
who was to be replaced by the 138 men hired during the course of the strike until
after the Union by Mojciechowski made the unconditional offer to return to work and
after he and Fortin had identified the first 79 employees on the seniority list. For
this reason, and because it is not possible to determine which one of the 138 employees
replaced any striker in a particular job, the Respondent should not be given the right
to take away seniority and other benefits from strikers after the first 79 were recalled
to work.
Concluding Findings
On all of the facts, therefore, I find that the Respondent has refused and is refusing
to bargain in good faith with the Union as the representative of the Respondent's
employees in the appropriate bargaining unit in violation of Section 8(a) (5) and (1)
of the Act; that under the law the Respondent is required to bargain in good faith and
after reaching agreement with the Union, if full agreement has been reached, to
embody the understanding between the Union and it in a written collective-bargaining
agreement; and I further find that because of the other acts related above the Respond-
ent has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connection
with its operation described in section I, above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and tend to lead, and
have led, to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has violated Section 8(a)(3), (5), and (1) of the
Act it will be recommended that the Respondent cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
Having found that the Respondent since November 21, 1963, has failed and refused
to bargain collectively in good faith with the Union as the exclusive representative of
Respondent's employees in an appropriate unit, it will be recommended that Respond-
ent be ordered to bargain collectively, upon request, in good faith with the Union as
the exclusive representative of its employees, and, if an understanding is reached,
embody such understanding in a signed contract.
It is found that the strike which took place on September 30, 1963, was prolonged
by unfair labor practices of the Respondent which occurred on and after Novem-
ber 21, 1963. As unfair labor practice strikers, Respondent's striking employees were,
upon their unconditional application for reinstatement on November 22, 1963, entitled
to reinstatement, and Respondent's failure to reinstate any of them was a violation of
Section 8(a) (3) of the Act. I shall recommend that Respondent offer such employees
as it has not reinstated immediate and full reinstatement to their former or substan-
tially equivalent positions, dismissing, if necessary, any employees hired since Novem-
ber 21, 1963. If, after such dismissal there are insufficient positions remaining for
all these employees, the available positions shall be distributed among them, without
discrimination because of their union membership or activity, or participation in the
strike, in accordance with such system seniority as has heretofore been applied in the
conduct of Respondent's business. Those strikers for whom no employment is
immediately available after such distribution shall be placed upon a preferential hiring
list with priority among them determined by such system of seniority as has heretofore
been applied in the conduct of Respondent's business, and thereafter, in accordance
with such list, shall be offered reinstatement as positions become available, and before
other persons are hired for work. Reinstatement, as provided herein, shall be without
prejudice to the employees' seniority or other rights and privileges.
I shall also recommend that the Respondent be required to make these employees
whole for any loss of pay they may have suffered by reason of Respondent's discrimina-
tion against them. This shall be done by payment to each of them the sum of money
he or she normally would have earned from November 21, 1963, to the date of rein-
statement or placement upon a preferential hiring list,--less his or her net earnings in
THE MARLEY COMPANY 937
accordance with the Woolworth formula (F. W. Woolworth Company, 90 NLRB
289). Backpay shall include interest at the rate of 6 percent per annum , computed
quarterly.
Upon the basis of the foregoing findings, and upon the entire record in this case, I
make the following:
CONCLUSIONS OF LAW
1. Respondent's operations occur in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. By refusing on November 21, 1963, and thereafter, to bargain in good faith with,
the Union as the exclusive bargaining representative of its employees, Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
4. By discriminating against employees in regard to hire and tenure of employment,
thereby discouraging membership in the Union, Respondent has engaged in and is
engaging in unfair labor practices affecting commerce within the meaning of Section
8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the meaning
of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law and upon the
entire record in this case, it is recommended that Respondent, The Marley Company,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Shopmen's Local Union No. 682 of the
International Association of Bridge, Structural and Ornamental Iron Workers,
AFL-CIO. -
(b) Discouraging membership in Shopmen's Local Union No. 682 of the Interna-
tional Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, or
any other labor organization of its employees by discriminating in regard to their hire
and tenure of employment.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Upon request, bargain collectively with the aforesaid Union as the exclusive
representative of its production and maintenance employees and, if an understanding
is reached, embody such understanding in a written agreement.
(b) Offer those strikers who unconditionally applied for reinstatement on Novem-
ber 22, 1963, immediate and full reinstatement to their former or substantially equiva-
lent position , without prejudice to their seniority and other privileges, in accord with
and in the manner set forth above in this Trial Examiner's Decision entitled "The
Remedy."
(c) Preserve and, upon request, make available to the Board or its agent, for infor-
mation and copying, all payroll records, social security payment records, timecards,
personnel records and reports, and all other records necessary for the determination of
the amount of backpay due under this Recommended Order.
(d) Post at its Louisville, Kentucky, facilities, copies of the attached notice marked
"Appendix." a Copies of said notice, to be furnished by the Regional Director for
Region 9, shall, after being duly signed by Respondent's authorized representative, be
posted by Respondent immediately upon receipt thereof, and be maintained by it for a
period of 60 consecutive days thereafter, in conspicuous places, including all places
where notices to its employees are customarily posted. Reasonable steps shall be
taken to insure that said notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 9, in writing, within 20 days from the
date of the receipt of this Recommended Order, what steps Respondent has taken to
comply herewith.i°
9 In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Ordei" shall be substituted for the words "the 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"
10 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read. "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps Respondent has taken to comply herewith.
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL upon request, bargain collectively with Shopmen's Local Union No.
682 of the International Association of Bridge, Structural and Ornamental Iron
Workers, AFL-CIO, as the representative of our production and maintenance
employees with respect to rates of pay, wages, hours of employment, or other
terms and conditions of employment.
WE WILL offer the employees who went on strike on September 30, 1963, and
who on November 22, 1963, applied for and were refused reinstatement, immedi-
ate and full reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority and other rights and privileges, dismissing, if
necessary, any employees hired since November 21, 1963.
WE WILL make each employee whole for any loss of pay he may have suffered
by reason of our discrimination against him.
WE WILL NOT discourage membership in the above-named labor organization,
or in any other labor organization of our employees, by refusing to reinstate or
in any other manner discriminating against our employees in regard to hire or
tenure of employment or any term or condition of employment, except as per-
mitted by Section 8 (a) (3) of the Act.
THE MARLEY COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to reinstatement upon application in
accordance with the Selective Service Act, and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Federal
Office Building, 550 Main Street, Cincinnati, Ohio, Telephone No. 381-2200, if they
have any question concerning this notice or compliance with its provisions.
The Topeka Grocers Management Association , Harry's IGA Food
Center, Butner IGA Foodliner , Falley's Market, Inc., Russ's
Market, Dibble's Grocery Co., Dibble 's Fairlawn Plaza, and
Dibbles Holliday Square Supermarket and Amalgamated
Meat Cutters and Butcher Workmen of North America, AFL-
CIO, Local Union 576. Case No. 17-CA-2391. January 13, 1965
DECISION AND ORDER
On October 14, 1964, Trial Examiner George A. Downing issued
his Decision in the above-entitled consolidated proceeding, finding
that only Respondent Falley's Market, Inc., 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 Decision. He also found that the other Re-
spondents had not engaged in unfair labor practices and recom-
mended that the complaint be dismissed as to them. Thereafter,
150 NLRB No. 89.