Dubo Manufacturing Corp.

812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Notify the Regional Director for the Twenty-first Region, in writing, within 20 days from the receipt by the Respondent of a copy of this Intermediate Report and Recommended Order, what steps the Respondent has taken to comply therewith.I2 It is further recommended that unless on or before 20 days from the date of its receipt of this Intermediate Report and Recommended Order the Respondent notify the Regional Director that it will comply with the foregoing Recommended Order, the National Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. 11 In the event that this Recommended Order be adopted by the Board, paragraph num- bered 2(e) thereof shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply therewith." APPENDIX A 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 NOT discourage membership in or activities on behalf of Chauffeurs, Sales Drivers & Helpers, Local 752, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organi- zation of its employees, by discharging or in any other manner discriminating against any individual in regard to his hire or tenure of employment or any term or condtion of employment, except as authorized in Section 8(a) (3) of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor or- ganizations, to join or assist the above-named Union or any other labor organi- zation, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargain- ing or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act. WE WILL offer to Dale Rollins immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges , and make him whole for any loss of earnings he may have suffered as a result of the discrimination against him. All our employees are free to become or remain, or to refrain from becoming or remaining, members of the above-named or any other labor organization. THE TRIPLE AAA WATER CO., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 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, 849 South Broadway, Los Angeles, California, 90014, Telephone No. Richmond 9-4711, Ex- tension 1031, if they have any questions concerning this notice or compliance with its provisions. Dubo Manufacturing Corporation and United Steelworkers of America, AFL-CIO. Cases Nos. 8-CA-2700 and 8-CA-9820. M ay 27, 1963 DECISION AND ORDER On August 28, 1962, Trial Examiner Sidney Sherman issued his Intermediate Report in the above-entitled proceeding, finding that 142 NLRB No. 91. DUBO MANUFACTURING CORPORATION 813 the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. Thereafter, the Respondent, the Charging Union, and the General Counsel filed exceptions to the Intermediate Report and briefs in support thereof. 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 Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions,' and recom- mendations of the Trial Examiner to the extent consistent herewith. On May 1, 1963, the Board issued a notice in the above-entitled proceeding, notifying the parties herein that the Board would defer its ruling in the case with regard to the Section 8(a) (3) allegations in the complaint.2 The notice further advised the parties that the Board would not, however, defer consideration of the 8(a) (1) and (5) allegations of the complaint, but would instead review the Trial Examiner's findings thereon and issue its Decision forthwith with respect to these allegations. Accordingly, we now proceed to a deter- mination of these issues. 1. The complaint issued by the General Counsel alleged that on or about January 3, 1962, Respondent Dubo interfered with, re- strained, and coerced its employees in violation of Section 8(a) (1) .of the Act by telling certain employees that they would have to work after that date without the protection of a collective-bargaining agree- ment 3 The occurrences antedating this action are as follows : On January 2, 1962, 16 day-shift employees of Respondent Dubo "walked -out" of the shop allegedly in protest of a refusal by Respondent to permit an employee returning from sick leave to work without having produced a medical certificate. Respondent Dubo thereupon trans- ferred 3 former night-shift employees to daywork on January 3, 1962, and informed them, through President Bollas, that Dubo interpreted the "walkout" as a breach of its current collective-bargaining agree- ment with the Union. Bollas then told the three employees they would thereafter be working "under the same conditions as before but without a contract." I Since, as noted elsewhere herein, the Board is deferring its determination of the 8(a) (3) allegations of the complaint, we do not pass upon the Trial Examiner's conclu- sion that Respondent violated that section of the Act. 2142 NLRB 431. 3 The complaint also alleged that Respondent violated Section 8(a) (1) of the Act on or about January 2, 1962, when Production Superintendent wise told employees involved in the "walkout" of that date that the Company considered them as having "voluntarily quit." The Trial Examiner found that this language constituted a threat of discharge for engaging in protected, concerted activities. Inasmuch as the lawfulness of the threat, if such it is, depends upon the lawfulness of the "walkout," a determination which we have deferred pending court-ordered arbitration, we shall make no finding concerning this alle- gation at this time. 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find, as did the Trial Examiner, that Bollas' statement to these employees was reasonably calculated to convey the impression that they would, at the very least, no longer enjoy the right to be repre- sented by the Union in presenting grievances, and thus constituted an unlawful threat in violation of Section 8(a) (1) of the Act. 2. The complaint also alleged that on and after April 3, 1962, Respondent refused to negotiate with the Union for a new contract to replace the agreement due to expire on June 8, 1962. It appears that the only explanation given to the Union by Dubo at that time was the pendency of the Union's civil action in the district court to enforce the expiring contract's arbitration provision and the pendency of the Union's unfair labor practice charges. The Board has long held that these are not valid reasons for refusing to negotiate.' At the hearing, however, Respondent defended its refusal to bar- gain on the ground that the Union was not the representative of a majority of Dubo employees after January 2, 1962. In support, Respondent argues that of those in its employ on April 3, 1962, 10 had been hired as replacements for the employees involved in the January 2 "walkout." The replacements in fact joined the Union. but Respondent takes the position that these replacements were re- quired to join the Union by virtue of Dubo's application of the union- security provision in its collective-bargaining agreement with the Union. From this, Respondent argues that the Union did not repre- sent an uncoerced majority of its employees on the date of the bar- gaining request and its refusal to negotiate was not unlawful. We disagree. Initially, we find no evidence in the record to support Respondent's contention that the union membership of the replacements was not the result of their voluntary choice. However, even if the replace- ments became union members due to the application of the union- security agreement, we perceive no basis for questioning the lawfulness of a union majority so acquired. Respondent's contract with the Union was current until June 8, 1962. It contained a lawful union- security provision, and Respondent does not contend, nor does it ap- pear, the Respondent applied it in an unlawful manner. Regardless, then, of whether the replacements became members of the Union be- cause of voluntary action or because of Dubo's enforcement of the union-security provision, the Union represented a majority of Dubo employees on April 3,1962. We find, therefore, that the Union was the majority representative of Dubo employees, either as the bargaining agent for dischargees, 'See Southern Illinois Sand Co., Inc., 137 NLRB 1490; Meyer Fabes. et al. d/b/a Gateway Luggage Mfg. Co., 122 NLRB 1584 ; Automotive Supply Company, Inc., 119 NLRB 1074; The Borden Company, 108 NLRB 807. DUBO MANUFACTURING CORPORATION 815 who have been unlawfully discharged and entitled to reinstatement,5 or as the duly authorized bargaining representative, of those who replaced them." In any event, under either of these conditions Re- spondent Dubo was obligated to bargain collectively with the Union during the pertinent period. By failing and refusing to bargain col- lectively with the United Steelworkers of America, AFL-CIO, on and after April 3, 1962, Respondent Dubo violated Section 8(a) (5) and (1) of the Act' THE REMEDY Inasmuch as we are deferring ruling upon the Section 8 (a) (3) allegations of the complaint herein, we shall, in lieu of the "broad order" recommended by the Trial Examiner, issue our usual Order in cases of this nature. ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Dubo Manufac- turing Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with United Steelworkers of America, AFL-CIO, as the exclusive representative of its em- ployees in an appropriate unit composed of all production and main- tenance employees, excluding office clericals, professional employees, guards, and supervisors as defined in the Act, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. (b) Telling its employees that they shall no longer have the right to union representation in processing of grievances or other contract benefits. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed by Sec- tion 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as amended. 5 As noted above, the Board has deferred the resolution of this question to arbitration -ordered by the United States District Court , Eastern District of Ohio, in June 1962. Nothing herein is to be construed as a predetermination by the Board of any issue properly before the arbitrator. 0It appears that on April 3, 1962 , Respondent employed a maximum of 18 persons, at least 2 of whom were among the group of 4 union members reinstated following the January 2 "walkout." There is no evidence they had relinquished their union member- ship The record shows further that 9 of the 10 replacements joined the Union. Clearly, then, the Union represented a majority of the Dubo employees on the date it requested bargaining. 7 Sharp's Markets, Inc., 140 NLRB 1221 ; General Medical Supply Corp., 140 NLRB '712; Rea Construction Company, 137 NLRB 1769. 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with United Steelworkers of America, AFL-CIO, as tie exclusive representative of its em- ployees in an appropriate unit composed of all production and main- tenance employees, excluding office clericals, professional employees, guards, and supervisors as defined in the Act, with respect to rates of pay, wages, hours of employment, or other terms and conditions of employment, and, if an understanding is reached, embody such under- standing in a signed agreement. (b) Post at its plant in Akron, Ohio, copies of the attached notice marked "Appendix." 8 Copies of said notice, to be furnished by the Regional Director for the Eighth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respond- ent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reason- able steps shall be taken to insure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Eighth Region, in writ- ing, within 10 days from the date of this Order, what steps Respond- ent has taken to comply herewith. MEMBERS FANNING and BROWN took no part in the consideration of the above Decision and Order. 8In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES OF Duno MANUFACTURING CORPORATION, AKRON, OHIO Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL bargain, upon request, with United Steelworkers of America, AFL-CIO, as the exclusive representative of all em- ployees in the bargaining unit described below in respect to rates of pay, wages, hours of employment, or other terms and condi- tions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is : All production and maintenance employees at our Akron, Ohio, plant, excluding office clericals, professional employees, guards, and supervisors as defined in the Act. DUBO MANUFACTURING CORPORATION 817 WE WILL NOT tell our employees that they shall no longer have the right to union representation in the processing of grievances and other contract benefits. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of their rights guar- anteed them by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring member- ship in a labor organization as a condition of employment, as authorized by Section 8(a) (3) of the Act, as amended. All of our employees are free to become, remain, or refrain from becoming or remaining, members of United Steelworkers of America, AFL-CIO, or any other labor organization. Durso MANUFACTURING CORPORATION, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date hereof, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio, 44115, Telephone No. Main 1-4465, if they have any question concern- ing this notice or compliance with its provisions. INTERMEDIATE REPORT The charge in Case No. 8-CA-2700 was served upon the Respondent on Janu- ary 31 , 1962, and the charge in Case No. 8-CA-2820 was served on June 8, 1962. The complaint in these cases issued on May 25 and June 25, respectively, and on June 25 the Regional Director ordered the cases consolidated for the purpose of hearing. A hearing was held before Trial Examiner Sidney Sherman in Akron, Ohio, on July 10 and 11. After the close of the hearing, briefs were filed by all parties. The issues litigated were whether the Respondent had violated : ( 1) Sec- tion 8 (a)(3) and (1) of the Act by the discharge and refusal to reinstate certain of its employees; (2) Section 8(a)(1) of the Act by threats of reprisal for con- certed activities, and (3) Section 8 (a)(5) and ( 1) of the Act by refusing to bargain with the Union. Upon the entire record,' and from my observation of the witnesses , I adopt the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Dubo Manufacturing Corporation , herein called the Respondent, is an Ohio corporation, with its principal office and plant in Akron , Ohio, where it is engaged in the manufacture and sale of metal products . During 1961 , Respondent sold to other manufacturing concerns located in Akron products valued in excess of $50,000 and each of such other concerns annually ships products valued in excess of $50,000 to out-of-State firms. I find that the Respondent is engaged in operations affecting commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. 1 All events hereinafter related occurred in 1962, unless otherwise specified. 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 11. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. ill. THE UNFAIR LABOR PRACTICES The complaints herein allege that the Respondent ( 1) violated Section 8(a)(5) and (1 ) of the Act by refusing to bargain with the Union as the representative of its employees, (2) violated Section 8(a)(3) and ( 1) of the Act by discharging and refusing to reinstate 16-named employees because they engaged in concerted ac- tivities, and (3 ) violated Section 8 (a) (1) of the Act by threatening employees with reprisals for engaging in concerted activities. The answer denies these allegations. A. The discharges 1. The sequence of events In 1955 the Union was certified as the representative of Respondent 's production and maintenance employees , and entered into a series of contracts with the Re- spondent, the most recent having been executed on June 21, 1961 , for a term end- ing June 8, 1962. This contract contained a union-shop clause, a dues checkoff clause, and a grievance procedure culminating in arbitration . The contract con- tains no clause expressly limiting the right to strike. The contracting parties are identified as the Respondent, the Union, and its Local Union No. 5305, and the contract is signed by officers of the local, among others. On January 2, in the contractual bargaining unit, the Respondent had 16 produc- tion employees on the day shift (7:30 a.m. to 4 p.m.) and 3 employees on the night shift (4 p.m. to 12:30 a.m.). At 7:30 that morning William Nesit, return- ing from a period of sick leave, reported for work. Production Superintendent Wise asked if he had brought a certificate from his attending physician? When Nesit replied that he had not , Wise ordered him to leave the plant and not to return without such a certificate . Nesit reported this development to Himelright , president of Local 5305, who told Nesit to repair to the union hall. Word of Wise's action quickly spread among the other employees and , when Himelright proceeded to leave the shop, the rest began to follow suit . Wise promptly called James Bollas, presi- dent of the Respondent , and reported that "a wildcat strike" was in progress. Bollas instructed Wise to call Rector, the Respondent's labor relations counsel, who advised Wise to tell the men that their action constituted a "voluntary quit" and that they could pick up their paychecks . Wise did in fact so inform several of the employees who had not as yet left the plant but were loitering in the restroom. About 8 : 30 a.m., Bollas arrived at the plant and found Rector already there. Rector, in Bollas' presence, spoke on the telephone to Taggart , a union representa- tive, and said, "Get those men back on the job ." However, in later conversations with Taggart the same day, Rector stated that Bollas had taken the position that the men had quit and Rector evaded Taggarts requests for a meeting to discuss the situation. That afternoon the three night-shift employees did not report for work, presumably because of the action of the day-shift employees? At 8 the next morning, the employees met at the union hall with Taggart, who called Bollas to advise him that Taggart would like to get the men back to work and offered to meet to discuss the matter. Bollas rejected this overture , insisting that as far as he was concerned the men had quit. Taggart was unable to budge Bollas from this position. Taggart then advised the men to apply to the Respondent for reinstatement. They accordingly returned to the plant that morning, and Himelright informed Bollas that the men wished to return to work. Bollas rejoined that as far as he was con- 2 Wise had warned Nesit, on December 29, when he applied for sick leave , not to return without such a certificate. Nesit at that time consulted Himelright , president of Local 5305, who advised him that the contract did not require such a certificate. s Reitz, the only night-shift employee Interrogated on this point at the hearing , testified that he did not report on January 2 , due to the walkout of the day shift. DUBO MANUFACTURING CORPORATION 819 cerned they had voluntarily quit,4 adding that they would receive a letter and to go home and follow the instructions in the letter. Later that day Respondent sent a letter to each of the 16 day -shift employees reading in part as follows: We regret to inform you that the manner in which you walked off your job here constitutes a voluntary quit under the terms of our Labor -Management Agreement. Under these circumstances, we must ask you to apply for rein- statement or come in and pick up your personal belongings together with your final pay check. I would appreciate it very much if you will call and let me know what your intentions are. That afternoon, the three night-shift employees returned to the plant and were told to report the next morning for work on the day shift. On January 4 and 5, in response to the foregoing letter of January 3, all 16 day- shift employees applied to Bollas for reinstatement in individual interviews. He accepted the applications of four 5 and told the rest there was no work for them.6 However, during the ensuing months the Respondent hired 25 new employees, none of whom had ever worked for the Respondent before, and recalled 4 from layoff. None of the 12 day-shift employees whose applications were rejected on January 4 and 5 was ever recalled. 2. Discussion The Respondent's interpretation of the events related above is that the 16 day- shift employees were not discharged , but quit their employment in concert, that the Respondent's selection on January 3, 4, and 5 of 4 of the day-shift employees and the 3 night-shift employees to fill the available vacancies was based solely on their relative efficiency and their attitude toward Wise, and that the subsequent failure to recall any of the remaining 12 day-shift employees when other vacancies developed was due to their inadequate performance on the job. Turning first to Respondent's contention that there was no discharge here but merely a concerted quitting, it is true that such a quitting-i.e., a permanent aban- donment of the employment-has been held not to be protected by the Act, even though concerted.7 However, it is clear, and I find, that here the employees did not intend such a quitting but meant only to bring pressure upon the Respondent to modify its action in Nesit's case, intending to return to work when this was accom- plished . Such action being for mutual aid and protection, has uniformly been held by the Board and the courts to constitute concerted activity which is protected by the Act, absent special circumstances.s It is clear moreover that ( 1) the notice given to the 16 day-shift employees in the Respondent's letter of January 3, that "the manner in which" they walked off the job constituted "a voluntary quit," and (2) the oral statements to the same effect made by Rector on January 2, to Taggart , and by Bollas on January 3, to Taggart and to the day-shift and night-shift employees was tantamount to a notice of discharge of the day shift employees because of their concerted activity.9 ' William Nesit and other employees testified to this statement . Bollas did not deny it, but stated merely that he could not recall making the statement . However, he admitted that later the same day he told the night-shift employees that as far as Respondent was concerned the day shift had quit, nor was there any denial of Taggart's testimony that Bollas had taken the same position in their conversation before the men returned to the plant on January 3. Accordingly , I credit Nesit's testimony. 5 Fricke, Moore, Spanos, and Stock. However, they were told that they were returning as new employees , without seniority 8 There was no evidence that there was in fact any wont available for them at the time. On this point, the record shows only that Bollas told the employees on January 4 and 5 that he had "farmed out" part of the work in the plant, necessitating a reduction in the work force. Y Crescent Wharf and Warehouse Company and its successor, West Coast Terminals Co , Inc., 104 NLRB 860, 861-862. The reason for this is that where employees leave their employment with no intent to return , such a leaving cannot be deemed to have as its object the improvement of their future working conditions 8 There is insufficient support in the record for Respondent's apparent contention that the true purpose of the walkout was to discredit or oust Wise as a supervisor Moreover, even if it be true that the walkout was prompted by antipathy to Wise , that would not render the walkout unprotected . Guernsey-Muskingum Electric Cooperative, Inc., 124 NLRB 618, footnote 1, enfd. 285 F. 2d 8 (CA. 6). e Delsea Iron Works, Inc., 136 NLRB 453. 712 - 5 4 8-6 4-v o f 14 2-5 3 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I find therefore that on January 2, the Respondent discharged all 16 day-shift employees because of their participation in the walkout, and that such walkout was concerted activity for mutual aid and protection. The Respondent contends further that the walkout was nevertheless not protected by the Act because (1) the Respondent had no advance notice of the grievance which occasioned this walkout, and (2) the employees' action was in violation of a con- tractual obligation not to strike. As to (1), I find that the Respondent was aware of the reason for the employees' action at the time of the walkout, and that no advance notice of the walkout was required by law.l° As to (2), the contract contained no express understanding not to strike. While the Supreme Court has held, in conformity with lower court and Board precedent,ii that such an under- taking is to be implied when the contract imposes a duty on the parties to submit their differences to "final and binding" arbitration,12 I do not deem that decision controlling here. Article IX of the contract establishes an elaborate five-step grievance procedure for adjusting (1) any differences between the Respondent and the Union or between the Respondent and any employee over the interpretation of the contract or (2) any grievance concerning hours, wages or working conditions "under the terms of the contract." At the fourth step, the Union is required to meet with the "Manager of the Company," and it is further provided that if no agreement is reached at this level the grievance proceeding will be considered "terminated," unless (1) the parties agree to "hold the grievance for further consideration" or (2) "the case is submitted by the parties" to arbitration. Article X of the contract provides that, in case of discharge, the employee may file a grievance in accordance with the foregoing article IX. Article XIV recognizes the right of management to hire, discharge, or suspend "for just cause." Respondent appears to contend that the case of William Nesit involved a differ- ence over the interpretation of "just cause" in article XIV, above, which difference was required to be processed through the grievance machinery, and that, as arbitra- tion was available at the last stage of the grievance procedure, the rule of the Lucas case applies and the contract should be deemed to have been breached by the January 2 walkout.13 However, in the Lucas case the contract required submission of the dispute to arbitration, whereas here arbitration is optional. I deem this distinction controlling. The holding in Lucas was that the grievance there involved was one which under the terms of its contract the union had "expressly agreed to settle by submission to final and binding arbitration proceedings," so that the strike in that case was a "violation of that contractual obligation." Here there was no such binding agreement by the Union, as arbitration is not mandatory under the contract but dependent on a voluntary submission by the parties.14 There is, thus, no basis for inferring that 10 Bollas admitted that when he arrived at the plant on January 2, he had a "good idea" of the reason for the walkout, and that Wise informed him of the reason later that day. Wise admitted that after he ordered Nesit not to return to work without a medical certificate, Nesit conversed with Himelright and a few others in the rear of the shop. and one of the employees asked Wise if it "was true about Air Nesit " It was then that Himelright walked off the job and the rest followed Accordingly, it is clear that Wise at least was aware of the reason for the walkout as soon as it began Under the circum- stances, the failure of the employees to give Respondent advance notice of the walkout is immaterial . N.L R B v Washington Aluminum Company, Inc, 370 U S. 9, Delsea Iron Works, Inc., supra. 31E g, W. L. Mead, Inc., 113 NLRB 1040. 12 Local 174, Teamsters, Chauffeurs, Warehousemen & Helpers of America v Lucas Flour Co., 369 U.S. 95. to The General Counsel contends that the dispute over the suspension of Nesit was not subject to the grievance procedure because it was not a dispute over the interpretation of the contract or over conditions of work "under the terms of the contract," as required by article IX In view of my disposition of the matter, I do not deem it necessary to pass on this point. 14 It is true, as related below, that a Federal district court has entered a summary judgment, upon the complaint of the Union, ordering arbitration of grievances arising from the instant discharges, including the discharge of Nesit, and that it is implicit in such judgment that the contract required arbitration However, it appears from a review of the record before the court (which was received in evidence by me) that the Respond- ent did not oppose the Union's complaint on the ground that arbitration was optional under the contract, and the question was therefore not litigated in the court action In DUBO MANUPA6 URING CORPORATION 821 the Union had agreed in its collective contract to arbitrate rather than strike or for holding that the walkout was therefore a violation of any contractual obligation. Accordingly, even if it be assumed that the walkout here stemmed from a grievance or "difference" which was subject to the grievance procedure, it would not follow that such walkout violated any provision of the contract and was therefore unprotected. Moreover, even if the walkout be deemed unprotected, I find that the Respondent condoned the walkout, thereby foreclosing itself from relying thereon as a ground for discharge. As related above, when Bollas arrived at the plant about 8:30 a.m. on January 2 he found his labor relations advisor, Rector, already there. Bollas testified that he called Taggart and put Rector on the telephone, and that Rector in Bollas' presence demanded that Taggart get the men back to work. I find that the Respondent thereby condoned any breach of contract involved in the walkout.' Pendency of Court and Arbitration Proceedings Respondent at the hearing moved to dismiss Case No. 8-CA-2700 on the ground that the issues involved therein relating to the discharge of the 12 employees who were not reinstated were currently being litigated in a Federal district court proceed- ing instituted by the Union to compel arbitration, under the collective-bargaining contract, of certain grievances filed on January 6, by the 12 employees, alleging that they had been wrongfully discharged. The court in that case in June 1962, entered a summary judgment in favor of the Union, ordering the Respondent to arbitrate the grievances pursuant to the collective-bargaining contract.is At the hearing I reserved ruling on the foregoing motion. Respondent contends that the jurisdiction of the court pre-empts the Board's juris- diction over this case as a matter of law. However, Section 10(a) of the Act pro- vides that the jurisdiction of the Board to prevent the commission of unfair labor practices "shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise.. " 17 Moreover, it is clear from the record of the court proceeding, which was received in evidence by me, that the issue there was not, as here whether the 12 men were wrongfully discharged, but whether the Respondent should be required to submit to arbitration the question of the propriety of such discharge. While it appears therefore that there has been no legal ouster of the Board's jurisdiction by the court proceeding, the question remains whether as a matter of policy the Board should withhold action here in view of the impending arbitration of the 12 grievances. While there is precedent for such action,18 there are a number of circumstances here which appear to militate against it. Only the grievances of the 12 who were not reinstated on January 4 are involved in the court proceeding. There remains the question litigated before me of the legality of the Respondent's action in discharging the remaining 4-day shift em- ployees as well as the legality of its action in depriving them of seniority when they were taken back.19 Moreover, the arbitration ordered by the court would not deal with the various independent violations of Section 8(a)(1) of the Act alleged in the complaint. It follows that the arbitration would be more limited in scope than the complaint herein, and that the motion to dismiss may not be granted in any event as to matters not involved in the arbitration. This suggests the alternative of dismissing only as to that part of the case to be covered by the arbitration. However, should the arbitration not materialize,20 or should it result in an award not conforming to any event, as neither the General Counsel nor the Board was a party to that action, the court's finding is not res judicata here Is See Union Twist Drill Co, 124 NLRB 1143, 1145; M. Elkin & Son, 135 NLRB 666 10 United Steelworkers of America, AFL-CIO, et at. v. Dubo Manufacturing Corporation (Northern District of Ohio, Eastern Division, No. C62-152). The action was brought under Section 301 of the Labor Management Relations Act, as amended 17 See United Steelworkers of America, AFL-CIO, Local No. 2772, United Steelworkers of America, AFL-CIO (Vulcan-Cincinnati, Inc.), 137 NLRB 45. Cf. Lodge No. 12 v Cameron Iron Works, Inc., 257 F. 2d 467 (C.A. 10) ; United Steelworkers of .4mer,ca v New Park Mining Co., 273 F. 2d 352, 358 (C A 5). 18 See Consolidated Aircraft Corporation, 47 NLRB 694, 707. 20 See footnote 5, supra. 20 Respondent may appeal from the order for arbitration and secure reversal of that order. 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the standards established by the Board in the Spielberg case,21 it would be too late to file a new charge.22 Accordingly, I do not believe it would effectuate the policies of the Act for the Board to withhold action here because of the pending arbitration , and I hereby deny the motion to dismiss referred to above. Conclusion as to the Discharges I conclude therefore that the 16 day-shift employees were discharged on January 2, and that by such discharge the Respondent violated Section 8(a) (3) and (1) of the Act. In view of this finding, it is unnecessary to consider the further allegation of the complaint that the refusal to reinstate these employees was also unlawful.23 B. The threats The complaint alleges that the Respondent violated Section 8(a) (1) of the Act by (1) Bollas' threatening of employees with loss of their rights under the union contract because of their walkout, and (2) Wise's threat of discharge in reprisal for such walkout. As to (1), this has reference to Bollas' remarks to the three night-shift employees, when they reported for work on January 3, after 1 day's absence. According to one of them (Reitz), both Wise and Bollas advised the returning night-shift employees that they would be working "under the same conditions" as before but "without a contract." Moore testified to a similar remark by Bollas when he was offered rein- statement on January 4, and on January 3 a like statement was allegedly made to Lazoran, Senior, and Edward Nesit, when they were offered jobs as replacements for the strikers. Far from contradicting the foregoing testimony, Bollas admitted that he told various employees, including the three night-shift employees and the four day-shift employees who were reinstated, that "until proven otherwise" there was no contract because it had been breached by the walkout, but he asserted at the hearing that, after consulting his attorney, he decided to honor the union contract. Accordingly, I credit the testimony of the General Counsel's witnesses that Bollas told them they would be working without a union contract, albeit with the same conditions or benefits as before. While, apart from the cancellation of the seniority of the four reinstated day-shift employees, there is no evidence that Respondent failed to honor the contract for the balance of its term, Bollas' statement that the employees would have the same benefits or conditions as before but without a union contract was reasonably calculated to convey the impression that they would, at the very least, no longer enjoy the right to be represented by the Union in presenting grievances.24 Such a threat is unlawful, even if not implemented. I find therefore that by such threat Respondent violated Section 8(a)(1) of the Act. As for Wise's threat of discharge, it has already been related that Wise, as he admitted, on January 2 warned some of the day-shift employees that if they joined in the walkout they would be voluntarily "quitting" and could "pick up" their checks. As this was in effect a threat of discharge for concerted activity, which has been 218pielberg Manufacturing Company, 112 NLRB 1080. There the Board stated it would honor arbitration awards where (1) the parties agreed to be bound by the arbitration, (2) the procedure before the arbitrators was "fair and regular," and (3) the award was not repugnant to the policies of the Act 22 See Section 10(b) of the Act, which requires that a charge be filed within 6 months after the event In Consolidated Aircraft Corporation, supra, the Board dismissed "with- out prejudice" an alleged discriminatory discharge, in view of the admission of the parties that the discharge was arbitrable under the collective-bargaining contract How- ever, at that time the Act contained no time limitation upon the filing of charges, and it would have been feasible to file a new charge had the arbitration failed to conform to Board requirements 23 However, if it were necessary to rule thereon, I would find unlawful (1) the Re- spondent's action of January 4 and 5 in reinstating 4 of the 16 without seniority, and (2) the refusal on those dates to reinstate the remaining 12 As to (1), it is clear that the four were deprived of seniority because of their participation in the walkout. As to ( 2), although Bollas contended that his decision not to reinstate the 12 was in- fluenced to some extent by other factors, he conceded that it was precipitated by their involvement in the walkout. 24 Reitz testified in effect that this in fact was his interpretation of Bollas ' remark. DUBO MANUFACTURING CORPORATION 823 found to be protected, I find that the Respondent thereby violated Section 8 (a)( I) of the Act. C. The violation of Section 8(a) (5) The complaint in Case No. 8-CA-2820 alleges that since on or about April 3, 1962, the Respondent has unlawfully refused to bargain with the Union as the representative of Respondent's employees in an appropriate unit, and, more specifically, that Re- spondent has refused so to bargain because of the pendency of the charge in Case No. 8-CA-2700 (relating to the foregoing discharges and threats). The answer denies that the Union currently represents the majority of the employees, and, while denying generally that Respondent has refused to bargain since April 3, the answer admits that since on or about May 14 the Respondent has refused to bargain because of the pendency of Case No. 8-CA-700. 1. The appropriate unit The complaint alleges, the answer admits, and I find that all production and main- tenance employees at Respondent's Akron, Ohio, plant, excluding office clerical em- ployees, professional employees, guards, and supervisors as defined in the Act, con- stitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act. 2. Majority status of Union In 1955 the Union was certified by the Board as the representative of Respondent's employees, and entered into a series of contracts, the most recent thereof expiring on June 8, 1962. It is not disputed that all 16 day-shift employees in the bargaining unit on January 2 were union members, and that, of those who were hired between January 2 and June 8, all but one were union members, they having been induced by the Respondent to join the Union pursuant to the union-shop clause in the collective- bargaining contract. Nevertheless, in its brief of the Respondent contends that the Union has not repre- sented a majority since January 2, when 16 union members allegedly ceased to be employees of the Respondent by reason of the walkout. As to those employees hired (or recalled from layoff) after January 2, while conceding that virtually all were union members, the Repsondent contends that they should not be counted as union members, because they "were forced to join the union" by the Respondent "against their will and by virtue of the contract." Presumably, Respondent would have them counted as opposed to the Union. As I have found above that the 16 day-shift employees were discriminatorily dis- charged, it is clear that they did not cease to be employees of the Respondent under the Act, and that they were therefore entitled at all material times hereafter to be counted for the purpose of determining the Union's majority status. By the same token, any employees hired to replace them may not be counted as either for or against the Union 25 Accordingly, it is not necessary to pass upon the implications of the fact that Respondent solicited such employees to join the Union, pursuant to the union-shop clause in the Union's contract. The record shows that on April 3 Respondent had not more than 18 employees,26 including 2 of the 4 reinstated day-shift employees,27 and 2 of the 3 night-shift em- ployees who had been transferred to the day shift on January 4. Of these 18 em- ployees, 10 had been hired to replace 28 an equal number of the 12 discharged employees who were not reinstated, and so may not be considered as members of the bargaining unit for the purpose of determining the Union's majority status. There remain eight employees, of whom four (Fricke, Spanos, Bowers, and Gibbs) admittedly were union members prior to January 2 and not subjected to employer coercion to join the Union. Thus, of the 18, there remain only 4 who may be counted as against the Union. On the other hand, it is proper to count as for the Union the 4 bona fide members actually employed on April 3 and the 12 dischargees who were not reinstated-a total of 16 for the Union. (Furthermore, even if all 26 Delsea Iron Works, Inc., supra 20 This is the number indicated by an exhibit offered by the General Couneei (General Counsel's Exhibit No. 15), which was stipulated by the Respondent to be accurate. How- ever, one of Respondent's officers testified that Respondent at no time after January 2 had more than 14 employees. For the purpose of this discussion, I have assumed the accuracy of the higher figure, which is more favorable to the Respondent. 27 The other two had quit in the interim. 281t is immaterial for present purposes whether they were temporary or permanent re- placements, as they would not be entitled to be counted in either case. 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees hired, or recalled from layoff, after January 2 were considered as entitled to be counted, the Union would still have a majority on April 3. The 18 employees on the payroll on that date, less the 4 bona fide union members named above, would represent a maximum of only 14 against the Union as compared to the foregoing total of 16 bona fide union members.) I find, therefore, that on April 3 and at all relevant times thereafter 29 the Union represented an uncoerced majority of Respond- ent's employees. 3. The demand and refusal It is undisputed, and I find, that on April 2 the Union requested the Respondent to bargain with it concerning the terms of a new contract, that on April 10 Bollas, in reply to this request, advised the Union that Respondent had retained Rector to represent it and requested the Union to communicate with him; that on May 8 the Union wrote Rector, suggesting a meeting on or about May 14; that on May 14 Rector replied, expressing the belief that no meeting would be productive until after the disposition of the pending court action and the charges in Case No. 8-CA-2700, and suggesting that until then "the situation remain status quo"; that on May 21 the Union wrote Rector, asking him to clarify his position by stating whether he was prepared to meet with the Union notwithstanding the pending litigation; and that on May 25 Rector answered in effect that his previous letter needed no clarification. It is clear from the foregoing, and the Respondent's answer to the complaint admits, that the Respondent refused to bargain with the Union because of the pendency of the Board proceeding in Case No. 8-CA-2700 (as well as the court action). It is well settled that this is not a valid reason for refusing to bargain.30 I find therefore that since April 3,31 the Respondent has refused to bargain with the Union thereby violating Section 8 (a) (5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the 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 obstruct- ing commerce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent violated Section 8(a)(1), (3), and (5) of the Act, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act It has been found that the Respondent refused to bargain with the Union, which represented a majority of the employees in an appropriate unit. Accordingly, I shall recommend that the Respondent be ordered to bargain, upon request, with the Union as the exclusive representative of the employees in the appropriate unit. It has also been found that the Respondent discharged the 16 day-shift employees on January 2 because of their concerted activity. Accordingly, the Respondent should be required to offer them immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges. The Respondent should also be directed to reimburse them for any loss of pay they may have suffered by reason of the Respondent's discrimina- tion against them, by paying to them a sum of money equal to the amount they would normally have earned as wages from January 3,32 to the date of Respondent's offer of reinstatement, less their net earnings during that period. Backpay shall be computed on the basis of calendar quarters, in accordance with the method prescribed in F. W. Woolworth Company, 90 NLRB 289.33 °° There were no relevant changes in Respondent's employee complement after April 3. Moreover, in view of the finding below that Respondent on that date unlawfully refused to bargain, any such changes would be of no avail to Respondent. Franks Bros. Company v. N.L R.B , 321 U.S. 702. 80 Southern Illinois Sand Co, Inc, 137 NLRB 1490 ai The presumptive date of receipt of the Union's bargaining request of April 2. =The date when the 16 employees abandoned the strike and offered to return to work. 84 The foregoing remedy is fully applicable even to the four employees who were actually reinstated on January 4 and 5, as their reinstatement without their accrued seniority was not effective to toll Respondent's liability for backpay. J. L. BRANDEIS & SONS, INC. 825 In view of the Respondent's unfair labor practices, particularly the discriminatory ,discharges found above, there exists a threat of future violations, which warrants a broad cease-and-desist order. CONCLUSIONS OF LAW 1. All Respondent's production and maintenance employees at its Akron, Ohio, plant, excluding office clericals, professional employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 2. At all times material the Union has been and still is the exclusive representa- tive of all the employees in the aforesaid unit for the purposes of collective bar- gaining, within the meaning of Section 9(a) of the Act. 3. By refusing to bargain collectively with the aforesaid labor organization as the exclusive representative of its employees in an appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Secton 8(a)(5) and (1) of the Act. 4. By threats of reprisals for engaging in concerted activities, the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 5. By discharging its 16 day-shift employees for engaging in concerted activity, the Respondent has violated Section 8(a) (3) and (1) of the Act. [Recommended order omitted from publication.] J. L. Brandeis & Sons, Inc. and General Drivers and Helpers Union, Local No. 554, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Petitioner. Case No. 17-RC-4048. May 27, 1963 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before a hearing officer of the National Labor Relations Board. The hearing officers' rulings made at the hearing are free from prejudicial error and are hereby affirmed.' Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman McCulloch and Members Rodgers and Leedom]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The labor organization named below claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. 'The Employer's request for oral argument is denied, as the record and the briefs, In our opinion , adequately present the Employer's position. 142 NLRB No. 90.