Zenith Radio Corp.

National Labor Relations Board - Board Decisions

Nov 27, 1970

186 N.L.R.B. 860 (N.L.R.B. 1970)

860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Zenith Radio Corporation and Thelma Reed and
Cornelia Banks and Earnestine Franklin, and
James Payne, and Reinaldo Rodriguez and Bertha
Mae Bynum . Cases 13-CA-9108, 13-CA-9119,
13-CA-9121,13-CA-9121-2, and 13-CA-9121-3
November 27, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
On June 11, 1970, Eugene E. Dixon issued his
Decision 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 Trial Examiner's Decision. Thereafter, the
Respondent filed exceptions and the General Counsel
filed limited exceptions to the Decision, and support-
ing briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
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, the exceptions, the briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, Zenith Radio Corporation, Chicago,
Illinois, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
Recommended Order.
ORDER
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE E. DIXON, Trial Examiner: This proceeding,
brought under Section 10(b) of the National Labor
Relations Act, as amended (61 Stat. 136), herein called the
Act, was heard at Chicago, Illinois, on March 3-5, 1970.
The consolidated complaint was dated December 17, 1969,
and was based on duly served individual charges filed May
7 (Case 13-CA-9108); May 12 (Case 13-CA-9119); May
12 (Case 13-CA-9121); May 13 (Case 13-CA-9121-2); and
May 13, 1969 (Case 13-CA-9121-3). The complaint , issued
by the Regional Director for Region 13 (Chicago , Illinois)
on behalf of the General Counsel of the National Labor
Relations Board , herein the General Counsel and the
Board , alleged that Respondent , Zenith Radio Corpora-
tion , had interfered with, restrained, and coerced its
employees by suspending certain of the Charging Parties
for various lengths of time for engaging in protected
concerted activity in violation of Section 8(a)(1) of the Act.
In its duly filed answer Respondent denied the commis-
sion of any unfair labor practices.
No opposition to the General Counsel 's motions to
correct the transcript having been filed the motions are
hereby granted.
Upon the entire record and from my observation of the
witnesses , I make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
At all times material Respondent has been a corporation
duly organized under and existing by virtue of the laws of
the State of Delaware and licensed to do business in and by
the State of Illinois. At all times material Respondent has
maintained its offices and production facilities in Chicago,
Illinois, where it is and has been engaged in the
manufacture of radios , television receivers , and related
radionic products . During the past calendar or fiscal year, a
representative period , Respondent in the course and
conduct of its business operations at Chicago, Illinois,
manufactured, sold, and distributed products having a
gross value in excess of $1 million of which products valued
in excess of $50 ,000 were sold and shipped from its
Chicago, Illinois , place of business directly to points of the
United States outside the State of Illinois . Respondent now
is and at all times material has been an employer engaged in
commerce within the meaning of Section 2 (6) and (7) of the
Act.
II. THE UNFAIR LABOR PRACTICES
For many years prior to April 22, 1968, Independent
Radionic Workers of America (IRWA herein) was
recognized by Respondent as collective-bargaining agent of
its production and maintenance employees. As of April 22,
1968, Respondent and IRWA were operating under a
collective-bargaining agreement effective from July 1, 1965,
through June 30, 1968. On April 22, 1968, International
Brotherhood of Electrical Workers, AFL-CIO (IBEW
herein), filed a representation petition (Case 13-RC-11555)
seeking to replace the IRWA as the bargaining agent of the
production and maintenance employees. On May 27, 1968,
a stipulation for a consent election was entered into by the
two unions and Respondent. Pursuant to this stipulation, a
Board election was conducted on June 20, 1968, with the
incumbent IRWA receiving the majority of the votes cast.
Timely objections were filed by the IBEW which on
186 NLRB No. 127
ZENITH RADIO CORPORATION
September 10, 1968, the Regional Director recommended
be overruled. Upon duly filed objections by the IBEW the
Board on October 14, 1968, ordered a hearing on the
objections which hearing was held during October,
November, and December, 1968.
In the meantime on or about December 15, 1968 (the
collective-bargaining agreement between Respondent and
the IRWA having expired on July 1), Respondent granted a
5-percent retroactive wage increase covering the period
July I to December 1, 1968. On February 14,1 1969, the two
unions and Respondent enter into a stipulation that the
June 20 election be set aside and that a new election be held
on April 2, 1969. The rerun election was held as scheduled
and IRWA again received a majority of the votes. On April
9, IBEW filed objections based on alleged improprieties
involving the custody and counting of the ballots. On April
10, Respondent informed the employees over the public
address system that it expected an early Board decision on
the IBEW exceptions and hoped for early negotiations for a
"new contract and higher wages" and voiced appreciation
for the employees' "continued patience and understand-
ing."
On April 11, Respondent heard many rumors that there
would be a walkout at either 10 or I1 a.m. At this time
Respondent (having consulted the Regional Office of the
Board and having received no determination as to the
resolution of the IBEW objections) decided to announce a
5-percent retroactive payment to all employees for the
period from December 1, 1968, to April 14, 1969, and a 5-
percent prospective wage increase effective April 14, 1969,
which announcement was made over the public address
system to the employees at approximately 10:15 a.m.2
According to the credited testimony of James Payne the
employees "started booing as soon as the announcement
was made."
Many employees at plant 2 had walked out before the
announcement and after the announcement many employ-
ees of plants 1 and 6 (including Payne) walked off the job.
At 11:48 a.m. Respondent announced over the public
address system that because so many people had walked
out they could no longer continue to operate and thus
decided to close all plants immediately. Employees were
requested to return to work at the usual time on the
following Monday.
After leaving the plant a large number of the striking
employees marched from plant 2 to the IBEW offices where
they were joined by employees from the other plants and
where they demonstrated. From the IBEW hall the
employees then marched to a position outside the
administrative offices of plant 6. The employees were
accompained by several IRWA representatives and many
employees caned IRWA signs used during the election
campaign. In front of the administration office building the
employees demonstrated demanding more money. Accord-
ing to the undenied and credited testimony of Thelma Reed
who had also walked out, the crowd outside was saying,
"We want 10 percent. We don't want 5."
I From here on all dates will be in 1969 unless otherwise noted
2 In addition to the oral announcement of the retroactive and
prospective 5-percent wage increase, Respondent also notified the
employees of the wage action by letter dated April I I
861
Several IRWA representatives including President Berg,
Financial Secretary Wojek, Treasurer Higgs, Director
Grandinetti, and Vice President Weil asked permission to
meet with management representatives. This permission
was granted and the union representatives proceeded to
meet with Respondent's officials. According to the credited
testimony of Berg when Respondent's president, Sam
Kaplan, asked Berg if he was negotiating for the employees
Berg replied that he "was definitely not negotiating ... just
communicating their demands, what the people were
hollering about out on the street" and he proceeded to tell
Kaplan "exactly what they wanted, they wanted 10 percent
and they wanted it now." Both Kaplan and Berg agreed
that in the absence of a certification they were in no
position to negotiate. Kaplan also asked Berg if the Union
was responsible for the walkouts and Berg said it was not.
When Kaplan asked if the Union would assist in getting the
employees back to work, Berg replied that it would.
On Monday, April 14, Respondent's plants opened on
schedule. Hundreds of employees congregated outside of
plants 1, 2, and 6 but only a small percentage of employees
came in to work. As a result, at 8:30 a.m. Respondent
announced over the public address system that since there
were not enough employees to operate, all plants would be
closed immediately and employees were asked to check
their radios for instructions on when to return to work.
As for the scene outside, according to Reed's further
credited testimony, there were police guards keeping people
away from the entrance of the plant and the crowd was
"screaming and hollering `10 percent.' " Finally a company
official came out and addressed the employees. In the
meantime one of the police officers, apparently relaying a
message from management, told the crowd that the
Company did not know what it was yelling about and
suggested that representatives be appointed to go in and tell
the Company what the employees wanted. Pursuant to this
suggestion Reed was designated by acclamation and at her
request two others were also designated to accompany
Reed.
In the plant this ad hoc committee informed the Company
that the employees wanted a 10-percent raise. The
Company indicated it would consider the employees'
demands and told Reed and the committee to bring
representatives from the other plants the next day at which
time it would discuss the matter with them. When the
employee committee appeared the following morning it was
told that in view of the fact that the IRWA had been
certified as the bargaining agent of the employees the day
before the Company could not now talk to them and that
they should take their demands to the Union.
After reporting the Company's position to the employees
outside they went to the union headquarters where the
committee (now joined by James Payne at the suggestion of
someone in the crowd) attempted to see IRWA President
Berg for the purpose of requesting a meeting of the union
membership. In this request the committee was
unsuccessful.3 After the unsuccessful session with the
1 According to Reed's testimony Berg refused to talk to the committee
Payne testified that Berg talked to them but refused to call a membership
meeting
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union Payne indicated that he could arrange a meeting
place for the employees at the First Congregational Church
through its pastor, Mayo Loving. This he did and the
employees subsequently met there several times.
As soon as the Board certified IRWA the Company
immediately mailed to its employees the following letter:
Dear Zenith Employee:
Good news! The National Labor Relations Board has
finally certified your official bargaining agent. It is the
IRWA.
Zenith and the IRWA have agreed to begin
bargaining at once for a new contract. These negotia-
tions will include bargaining for a wage increase in
addition to the 5% announced on Monday, April 14. The
5% lump sum payment for the period from December 1,
1968 to April 14, 1969 will be mailed to you sometime
next week. .
The IRWA joins with us in urging all employees to
return to work on Thursday, April 17, at the regular
starting time, so that new contract negotiations can
begin. The first bargaining meeting is scheduled for
Thursday, April 17.
To repeat:
The IRWA and Zenith urge you to report for work
Thursday, April 17 at the regular starting time.
Bargaining for a wage increase over and above the
5% can then begin.
The Company assures you that it will dedicate its full
efforts to arrive at a fair settlement at the earliest
possible time.
Sincerely,
S. Kaplan
President
Late in the day of April 15 IRWA and company officials
met and discussed resumption of operations and on the
next day, April 16 (the plant still closed), met for a
preliminary negotiation session. On April 17, while many
employees returned to work (attendance being poorest in
plant 6) at Respondent's urging in newspaper
advertisements4 others congregated outside the plants.
Reed arrived at the plant at about 7 a.m. The employees
told her that they had been waiting for her and asked her if
they were going to work or stay out. She said it was up to
"what the crowd wants to do." The suggestion was made:
"Stay out until we get our 10 percent." So Reed got up on a
car and told the employees, ". . . everybody stay out until
we get 10 percent." To the employees who had gone in to
work, a welcoming comment was read over the public
address system announcing that negotiations would
continue and outside another announcement was read
indicating that contract negotiations were in progress and
that the Company was "anxious and willing to come to a
settlement as soon as possible."
As promised, a negotiation meeting was held on April 17.
At this meeting both the Company and the Union voiced
their desire and purpose to reach an early agreement.
According to the direct testimony of Frederick Hedblom,
Respondent's vice president in charge of production and
one of the Company's spokesmen, in this meeting he
referred to the fact that for months they had been operating
under "most of the provisions" of the expired contract that
they "had agreed to before to operate in a status quo
manner" and asked if the Union "would agree with the
Company that there would be no work stoppages or wild
cat strikes or anything else of an untoward nature which
would interfere with a peaceful and a rapid conclusion to
the negotiations. ..." According to Helblom's further
direct testimony the Union gave "assurances . . . there
would be no work stoppages or any interference to bringing
these negotiations to any early conclusion." On cross-
examination Hedblom testified that the Union had
indicated that "it was not the intention of the Union to
exercise its economic powers unless the Company and the
Union were not making any progress and reached an
impasse."
Earl Page, Respondent's director of labor relations,
substantially corroborated Hedblom testifying that Hed-
blom had "made a statement to the effect that the
Company was interested in completing negotiations and
arriving at an agreement as expeditiously as possible and
... asked the Union for their assurance that they would
bargain in good faith and that there would be no
interruptions in work and that the status quo with respect to
the observance of the contract would be maintained during
the negotiations as it had been during the past several
months." Page further testified that the Union's spokesman
and attorney, Leon Roselle, "replied that this arrangement
would be agreeable with the Union, they would be willing
to continue the status quo which had been in effect and that
so long as reasonable progress was made in the negotia-
tions, there would be no interruptions of work, work
stoppages so far as the Union could control."
IRWA President Berg testified for both the General
Counsel and the Respondent. As a witness for the General
Counsel he testified that at no time between April 15 when
the IRWA was certified and May 2 when a new contract
was agreed upon did the Union agree to a no-strike
commitment. As a witness for Respondent he testified that
at the termination of the contract on July 1, 1968 there was
an understanding between the Union and Respondent
"that the contract would remain status quo." He also
testified first that he could not recall a-y request for
assurance from the Union of a no-strike commitment
during negotiations and then testified that during the April
15-May 2 period no specific mention was made of
continuing in effect the no-strike provision of the old
contract.
On April 18 Respondent's plants reopened and attend-
ance was improved. But Respondent heard rumors of a
proposed walkout. At 10:50 a.m. Respondent read the
following announcement to its employees:
Good morning! Again I want to welcome all of you and
thank you for being on the job. A few words about
negotiations- the bargaining committees of the Union
and the Company met for several hours yesterday
4 The ads , signed by Zenith only , stated in part: Zenith urge you to report for work Thursday , April 17, at the regular
The bargaining will include a wage increase on top of the 5% increase starting time-so so negotiations for your wage increase can begin.
which became effective Monday , April 14. We repeat : The IRWA and
ZENITH RADIO CORPORATION 863
afternoon and we are off to a good start bargaining for
higher wages and other benefits. Both sides agreed to
work as hard and as many hours as necessary to reach
agreement on a new contract for you at the earliest
moment. We are meeting again today and other
meetings will be held over the weekend. Attendance is
almost back to normal at all plants. And I'm sure that
you are as glad about this as we are. We have heard that
a few employees plan to leave sometime today If
anyone asks you to leave, it can only be for some selfish
reason of his own. Both the Union and the Company
request that you pay no attention to any request like
that, but that you continue to perform your job as you
have been doing because work stoppages can only slow
down the bargaining. We will continue with regular
schedules everyday. Again thank you for your excellent
cooperation. We will see all of you on Monday. Thank
You.
On April 18 Edwin Schroeder, Respondent's equal
employment officer, talked to employee James Payne and
Reverend Loving. In this meeting Payne and Loving
(together with employee Santos Perez) were assured by the
company officials that there would be no reprisals against
the employees "if they would return to work." Schroeder
told Loving (as spokesman for the visitors) that the
Company did not know what the employees wanted.
Loving said his information was that they wanted a 10-
percent increase. Schroeder said that the Company "would
love to give it to them, but it was up to the Union. . .
Subsequently on two occasions once on the parking lot at
the plant and later that evening at his church Loving
conveyed to the employees Schroeder's assurances that
there would be no reprisals for their work stoppage.
Negotiations continued on April 19 and 20. On April 21
attendance was near normal for a Monday. Over the public
address system Respondent read the following communica-
tion:
Good morning! We're happy to see so many of you in
the plants this morning. The attendance is about normal
and it looks like this [sic] attempts by a handful of
selfish people to persuade you not to come to work are
about over and we're rapidly getting back to our regular
schedules.
The Company and the Union have had five bargaining
sessions so far. We met for long hours on Saturday and
again on Sunday as we told you we would. We are
meeting again today. Good progress is being made and
both the Union and the Company look forward to an
early settlement of all issues. Thank You.
On the same day, April 21, the Company also mailed to its
employees the following communication:
Our records indicate that you have been absent from
work for at least 3 days without authorization. Further
unauthorized absence of this kind will not be condoned
by the Company. We urge you not to repeat any such
action which may affect your employment status.. .
On the morning of April 21 the Union handbilled the
employees as they came to work reviewing the negotiation
developments to date and pointing out that the Union had
asked Respondent for "the biggest money package" in its
30-year history and asking for the employees' "cooperation
and patience." The communication also admonished the
employees not to "listen to any false rumors" and stated
that "your IRWA officers and directors pledge to you that
they will following our IRWA constitution which requires
that the IRWA membership must ratify and approve any
settlement reached before it can be put into effect."
Sometime on April 21, Reed, Payne, and other represent-
atives of the employees met with the IRWA officials and
presented a list of things they wanted negotiated: (1) a 10-
percent increase retroactive to July 1968; (2) a cost-of-
living clause; and (3) the term of the contract. According to
Reed's testimony, Berg said that the employees' demands
seemed fair but that the Company would not negotiate with
the employees on strike. He told them to go back to work
and that he would go in and demand all that they were
requesting.
The committee agreed to go back on April 23 indicating
that they would continue their strike on the 22d because on
that date there was a stockholders' meeting scheduled and
they wanted the opportunity to let the stockholders know
how they had been treated. Berg thereupon told the
committee that if they went back on the 23d he would
present their demands to the Company and if the Company
did not agree by Friday, the 25th, the Union would back
the employees in a strike.5 Outside the union hall, Reed
reported the results of the meeting with the union officials
to the employees there congregated. She did this from the
top of an automobile with the aid of a policeman's bull
horn. She told them that Berg had assured them that if they
did not have their "demands by Friday at 1 I o'clock . . . he
would back a walkout." When the employees wanted to
know if Berg had specifically so indicated Reed had one of
the other committee members assure them that such was
the fact. The employees then wanted to know if they were
to go back to work the following day and Reed said, "No,
we are going to picket the stockholders' meeting tomorrow
and everybody will return to work on Wednesday." The
stockholders' meeting was picketed and during the
picketing the following handbill was passed out:
RONNIE BERG PROMISED 10% ACROSS THE
BOARD RETROACTIVE BY FRIDAY BEFORE
NEGOTIATIONS WE ARE STILL FIGHTING FOR
OUR RIGHTS (10% ACROSS THE BOARD) WE
HAVE BEEN PROMISED BY RONNIE BERG
THAT HE WILL DEMAND THIS 10% WITH THE
SUPPORT OF THE PEOPLE (THE MEMBERS OF
THE UNION BEHIND HIM).
WE WILL HAVE A GENERAL MEETING OF
ZENITH WORKERS TUESDAY AT 5:00 P.M. AT
FIRST CONGREGATIONAL CHURCH OF CHI-
CAGO, ON THE CORNER OF ASHLAND AND
WASHINGTON BOULEVARDS APRIL 22, 1969.
As between Berg and Reed, I credit Reed's testimony
here at least to the extent that Berg, whether he volunteered
it or acquiesced to the dictates of the committee, made a
commitment to them to back a strike if the employees'
demands were not met by 11 a.m., April 25. Reed's so
5 Berg testified that he told Reed that the Union at that time wanted the
people to go back to work and to `continue negotiations , until we get to a
point of total impasse and then we would take economic action if
necessary, which would mean a strike "
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
indicating to the employees right after the meeting with
Berg, the verification of it by another committee member,
and reiteration of it in a handbill to the employees the
following day lend strong support to its authenticity - the
impression I got of it when I heard the two witnesses testify.
On April 23 attendance was normal. There were no
gatherings or demonstrations outside the plant. Many
employees were given warning notices as indicated above
on or about this date. Another announcement was read to
the employees over the public address system on April 23
which stated in part that "the Company has made a very
substantial counter-offer to the Union covering wages,
fringes, and contract provisions. Good progress is being
made at the bargaining table and we look forward to a
settlement of all issues soon."
On April 24 Respondent gave IRWA its "final offer" in
the bargaining session of that date. That afternoon,
Respondent began elaborate preparations for a strike the
next day. Thus, Robert MacGregor, then production
superintendent of building 5 in plant 1, attended a meeting
on the afternoon of the 24th in the office of Plant Manager
Frank Dedera. He was told that "there had been
continuous rumors concerning disturbances that were
meant to incite a walkout, and these were centered at plant
No. 6" Dedera's office was designated "rumor central" for
plant 1, and security personnel briefed management on how
to deal with "incidents meant to provoke a walkout . . .
that would involve a violation of criminal law," and it was
indicated that police would be on hand if needed, and that
"Crusade of Mercy" and "Green Cross of Safety" badges
would be available for identification of supervisors.
On the morning of April 25 IRWA passed out a handbill
to the employees as they came to work containing a
summary of the Company's offer of the previous day. The
Company's offer included a 10-percent wage increase
retroactive to January 1, 1969, rather than July 1, 1968, and
contained no cost-of-living clause whatsoever.
On the morning of April 25 additional rumors of a
proposed walkout at 11 a.m. reached Respondent. Earlier
the following handbill had been passed out to employees as
they arrived at work:
On Monday, April 21, the Union President Ronnie Berg
promised Zenith workers that if by 11:00 a.m. today he
has not gotten a ten 10% across the board cash raise
retroactive to 7-1-68 to 6-30-69 he will support a
walkout and back the Zenith workers.
The company has offered us much less than this. So
now is the time when all Zenith plants are going to stand
together for what we demand as a fair cash raise in our
pay checks. Unless we hear an announcement from the
company that this ten 10% raise has been granted we
will walk out.
6 According to Payne's testimony, about April 17 he and his co-
committee members began calling themselves "The Zenith Workers" or
"The Concerned Zenith Workers."
I There is a conflict between Rodriguez 's testimony and Respondent's
as to whether or not Rodriguez was standing in an aisle encouraging people
to walk out by shouting, "Out, out, out," and as a result was arrested
The Zenith Workerss
Thank you for your cooperation
Thelma Reed, James Payne, and Union Steward Bertha
Bynum came to work at plant 6 on the morning of April 25
as did Earnestine Franklin, Reinaldo Rodriguez, and
Cornelia Banks at plant 1. During her break Reed
unsuccessfully tried to get in touch with Union President
Berg or some of the union directors to find out what to do
about the 11 o'clock strike deadline. At I I a.m. employees
from the final assembly area in plant 6 came through the
plant yelling, "We walking out." By noon about half of the
employees at plant 6 and about 15 percent of plant I had
walked out. Among them were Payne, Reed, Franklin,
Bynum, and Banks. Shortly after noon Rodriguez also left
the plant in the custody of the police.? Notwithstanding
that over a thousand employees walked out on the 25th, all
plants continued to operate.
After leaving the plants the strikers gathered in front of
the IRWA hall. Berg came out and addressed the crowd
telling the employees that the Company had "gone against
and double crossed (him) and made an announcement that
(he) had not authorized and that he was going back in and
negotiate ..." 8 Berg promised to call the group at the
church but he did not do so.
In the afternoon of the 25th the Company announced
over the public address system that in a current meeting
with the Union it had agreed with the Union to pay 4 hours
of reporting time for those who had reported to work the
previous Monday.
All employees returned to work on Monday, April 28. A
petition was circulated by Payne and others for a union
meeting. The IRWA distributed a negotiation report to
employees on the 28th as they came to work. Among other
things the report stated that unless the bargaining
committee could see that it would be able to reach an
acceptable agreement very soon it would "request the
membership to authorize strike action." On or about April
29 the following communication was given by Respondent
to employees who participated in the April 25 walkout:
Company records indicate that on April 25, 1969 you
left your job during working hours without permission.
The Company is in the process of investigating the
circumstances of your case to determine whether
disciplinary action is necessary... .
Between April 28 and May I negotiation meetings were
held daily. On May 2 a negotiation report by the IRWA
was handed out to the employees as they came to work. In
it reference was made to the complete outline of what the
Company called its "final offer" that the Union had
distributed to the employees the previous Friday (April 25)
and to the Union's report of April 28 in which they had
indicated that the bargaining committee's position that it
would recommend acceptance of a contract providing that
the Company's offer was improved to include a cost-of-
living wage reopener and "certain additional wage and
because of this conduct and his refusal to leave. I credit Respondent's
version.
" He was referring to an announcement that the Company had made
over the PA system before I I a.m. to the effect that the expected strike was
not authorized by the Union.
ZENITH RADIO CORPORATION 865
vacation improvements as well as some other adjustments."
The communication also stated:
Last Monday your bargaining committee told you if we
found we are unable to reach an acceptable agreement
very soon we would request membership authorization
to authorize the IRWA bargaining committee to call for
a strike if the bargaining committee thinks it is
necessary to do so.
We are scheduling a meeting for this purpose on
Thursday, May 8, 1969 at Ferrara Manor, 5609 W.
North Ave., Chicago, Illinois where a secret ballot of
the membership will be taken in accordance with the
provisions of the IRWA constitution.
On May 2 a negotiation meeting was held and agreement
reached on a new contract. On or about May 4 IRWA
initiated a mail ballot referendum on ratification of the new
contract. Thereupon Payne, Rodriguez, and Franklin as
well as others handbilled the employees at the plant
entrances (in full view of supervisors coming to work)
asking employees not to sign and return the mail ballots
and announcing a meeting at the church on May 6 when an
attorney would be present to explain the contract.
Apparently simultaneously with the foregoing handbilling
the above employees also were circulating a petition for a
union meeting and on May 8 when they had secured over
3,000 signatures it was duly presented at the union office.
On May 5 the IRWA handbilled employees concerning the
new agreement . Among other things this report stated that
the agreement could not go into effect until ratified by the
membership.
On May 8 a letter from an attorney representing a group
of the striking employees was hand delivered to Respon-
dent. This letter indicated that the law firm had been
retained by IRWA members in their effort to stop the
Union's mail ballot referendum on the contract until after a
membership meeting petitioned for by some 3,200 IRWA
members had taken place.
Between May 5 and 9 further negotiation meetings were
held concerning contract language. On May 9 Respondent
informed the IRWA that it was going to discipline 16 of the
employees (including Payne, Franklin, Rodriguez, and
Bynum) for participating in the April 25 walkout.
Accordingly Payne and Franklin were suspended for 5 days
on May 9, Bynum for 2 weeks on May 12, and Rodriguez
for 5 days on May 13. Cornelia Banks had already been
suspended for 3 days on April 28, also in part, for her
walkout on April 25.
In the afternoon of May 12 Respondent was informed by
the IRWA that the new contract had been ratified. Final
wording of the contract was agreed on May 13 and during
the afternoon of May 13 a short announcement was read
over the public address system concerning when the new
wage rates would be reflected in the employees' paychecks.
Contentions and Conclusions
The key question here is whether the strike of April 25 for
which the Charging Parties were suspended was or was not
activity protected by the Act. Respondent contends that it
was not protected because, it claims, it was in violation of a
no-strike commitment made to the Company by the duly
designated bargaining agent of the employees. Respondent
further contends that even if it be found that the Union had
not made a no-strike commitment , the strike was by a
minority of the employees and was not sanctioned or
authorized by the Union and thus was not protected under
the rule of N. L. R. B. v. Draper Corporation, 145 F.2d F.2d
199 (C.A. 4, 1944).
The General Counsel's position is that there was no
binding no-strike commitment in effect and that the
walkout was protected even though it may not have been
authorized by the Union. The General Counsel as an
alternative theory further contends that even if it be found
that the strike itself was unprotected activity, Respondent
in effect was using it as a pretext to punish the suspended
employees for attempting to get a union meeting and for
other permissible concerted activity.
I believe that the walkout was protected activity and find
first that no binding no-strike commitment had been made
by the Union. As shown by the testimony of Earl Page
(Respondent's director of labor relations) when Vice
President Hedblom on April 17 asked union assurance that
there would be no work stoppages to interfere with a rapid
conclusion to the negotiations, the Union's attorney replied
that there would be no work stoppages "so long as
reasonable progress was made in negotiations" and then
only "so far as the Union could control." This, in my
opinion, was not a binding no-strike commitment. Nor do I
belive that Respondent at the time really believed that it
had such a commitment. If it did, it seems to me that
somewhere in the numerous announcements and communi-
cations with the employees touching on the question of
strikes and walkouts some mention of the commitment
would have been made. Not even in the two communica-
tions regarding unauthorized absences (including the strike
at issue) were there any such allusions.9
The General Counsel makes a very persuasive argument
to the effect that Draper and subsequent cases do not make
illegal all unauthorized minority strikes and that where such
a strike is not in derogation of the bargaining agent and the
demands it is pursuing in negotiations (as he claims the
facts here show) it is protected under the Act.
It is unnecessary to pass upon the General Counsel's
contention because in my opinion the credited evidence
here clearly shows that the walkout of April 25 was authorized
by the Union and thus takes the matter out of the reach
of the; Draper rule. As shown, I have credited Reed's
testimony that Union President Berg promised that if the
employees' demands, particularly the 10-percent retroac-
tive increase to July 1, 1968 (which, so far as the
uncontroverted evidence shows, was being vigorously
advanced by the Union in negotiations), were not agreed to
by 11 a.m. on April 25, the Union would back a strike.
Regardless what position Berg may have been taking in this
connection in the negotiations with Respondent, it seems to
9 As pointed out by the General Counsel, as for these two
communications constituting a warning of possible discipline, they can be
viewed as simply restating the rule of N.L.R.B. v. Mackay Radio and
Telegraph Co., 304 U.S. 333, "that economic strikers may be replaced and
thereby have their employment status affected."
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
me that the employees were entitled to rely on Berg's
assurance to back a strike if the deadline was not met 10
(particularly in the absence of a binding no-strike
commitment by the Union ) and that Respondent, even if it
in good faith believed that the strike was unauthorized, thus
had no right to suspend the employees and in so doing
interfered with , restrained , and coerced them in the exercise
of rights protected by the Act and thus violated Section
8(a)(1) of the Act . I so find.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section II,
above, occurring in connection with the operation of
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
IV. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent suspended Cornelia
Banks for 3 days on April 28, Earnestine Franklin for 5
days on May 9, James Payne for 5 days on May 9, Reinaldo
Rodriguez for 5 days on May 13, and Bertha Mae Bynum
for 2 weeks on May 12 for engaging in activity protected by
the Act, I shall recommend that Respondent be ordered to
make them whole for any loss of earnings they may have
suffered by payment to them of a sum of money equal to
the amount they normally would have earned as wages
during their suspensions less net earnings during said
periods including interest as held in Isis Plumbing &
Heating Co., 138 NLRB 716.
I shall also recommend that Respondent preserve and,
upon request, make available to the Board payroll and all
other records necessary to facilitate the determinations of
the amounts due under this Recommended Order.
In the circumstances of this case I do not believe that a
Board order is called for. Accordingly I shall recommend
only that Respondent be ordered to cease and desist from
infringing in any like or related manner upon the rights
guaranteed employees by Section 7 of the Act. Nor do I
believe that any more notice to the employees of the
disposition herein is needed than the usual posting
requirement.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case I make the following:
CONCLUSIONS OF LAW
1. Zenith Radio Corporation is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. By interfering with, restraining, and coercing its
employees in the exercise of rights guaranteed in Section 7
of the Act, Respondent has engaged in unfair labor
practices within the meaning of Section 8 (a)(1) of the Act.
3. Said unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in the case, I
recommend that Zenith Radio Corporation, its officers,
agents , successors, and assigns , shall:
1. Cease and desist from suspending employees for
engaging in protected concerted activities for the purpose
of collective bargaining or other mutual aid and protection
in connection with their wages , hours , or working
conditions, and in any other like or related manner
interfering with , restraining , or coercing employees in the
exercise of their right to engage in concerted activities for
such purposes.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Make Cornelia Banks, Earnestine Franklin, James
Payne, Reinaldo Rodriguez, and Bertha Mae Bynum whole
for loss of pay they may have suffered by reason of their
illegal suspensions as provided in the section entitled "The
Remedy;"
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
and all other records relevant to a determination of the
amount of backpay due under the terms of this Recom-
mended Order.
(c) Post at its plants in Chicago, Illinois, copies of the
Attached notice marked "Appendix."11 Copies of said
notice, on forms provided by the Regional Director for
Region 13, shall, after being duly signed by Respondent's
representative, be posted by it immediately upon receipt
thereof and he 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 by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(d) Notify said Regional Director, in writing, within 20
days from receipt of this Decision, what steps Respondent
has taken to comply herewith.12
10 The evidence clearly shows that the deadline was not met.
11 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the
findings , conclusions, recommendations , and Recommended Order herein
shall, as provided in Sec. 102.48 of the Rules and Regulations , be adopted
by the Board and become its findings , conclusions , and order, and all
objections thereto shall be deemed waived for all purposes . In the event
that the Board 's Order is enforced by a Judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read "Posted
pursuant to a Judgment of the United States Court of Appeals enforcing
an Order of the National Labor Relations Board."
12 In the event this Recommended Order is adopted by the Board, this
provision shall be modified to read : "Notify said Regional Director for
Region 13, in writing, within 10 days from receipt of this Order, what steps
Respondent has taken by comply herewith."
ZENITH RADIO CORPORATION
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interfere with, restrain, or coerce
employees in the exercise of their right to engage in
concerted activities for the purposes of collective
bargaining or other mutual aid or protection, pertaining
to their wages, hours, or working conditions, by
suspending them for engaging in such activities or in
any like or related manner interfering with their rights
under the Act.
WE WILL make whole Cornelia Banks, Earnestine
Franklin, James Payne, Reinaldo Rodriguez, and
Bertha Mae Bynum by paying them the amount of
867
money they would have earned from us during their
illegal suspensions by us.
Dated By
ZENITH RADIO
CORPORATION
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 881
U.S. Courthouse and Federal Office Building , 219 South
Dearborn Street, Chicago, Illinois 60604, Telephone
312-353-7572.