Petition — Walker Die Casting, Inc. v. National Labor Relations Board

8 2 15 1 4 1 7 —— Court, U.S,

FIL E D

22 1993

No.

8 - ALEXANDER & SFEVAS,

In the Supreme Court of the United States

October Term, 1982

WALKER DIE CASTING, INC.,

Petitioner,

VS.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

WILLIAM N. OZIER

Counsel of Record

2700 First American Center

Nashville, Tennessee 37238

Attorney for Petitioner

Of Counsel:

Bass, Berry & SIS

2700 First American Center

Nashville, Tennessee 37238

— ũ— — i — — —ę— —

E. L. MeEnDENHALL, INc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030

QUESTION PRESENTED

Whether the decision of the United States Court of

Appeals for the Sixth Circuit in this case holding that

the Petitioner Walker Die Casting, Inc. violated § 8(a) (5)

of the Labor-Management Relations Act, as amended, by

suspending negotiations with the certified collective bar-

gaining representative of its employees when presented

with a decertification petition filed by its employees with

the National Labor Relations Board raising a question con-

cerning representation, and further holding that the strike

by the Petitioner’s employees was converted from an

economic strike to an unfair labor practice strike by that

suspension is contrary to legal precedent established by

this Court, by the National Labor Relations Board and by

the other Courts of Appeals.

PARTIES

All parties to this proceeding are set forth in the cap-

tion. The original unfair labor practice charge before

the National Labor Relations Board was filed by Local 259

of the Stove, Furnace and Allied Appliance Workers’ In-

ternational Union of N.A., AFL-CIO.

—

III

TABLE OF CONTENTS

111 ———---æw¶„'j——— 1

— — 2

, —————————————————————— 2

e ....————— 4

Reasons for Granting the Writ ..... 6

Conclusion si 13

Appendix A- Decision 5 this 1 Al

Appendix B- Opinion of the Court of Appeals A65

Appendix C - Order of Court of Appeals Denying Re-

— A70

TABLE OF AUTHORITIES

Cases

Allied Industrial Workers, AFL-CIO Local Union No.

289 v. NLRB, 476 F.2d 886 (D.C. Cir. 1973) 10

Automated Business Systems v. NLRB, 497 F.2d 262

(6th Cir. 1974) 9

Bally Case & Cooler, Inc. v. NLRB, 416 F.2d 902 (6th

Cir. 1969), cert, denied, 399 U.S. 910 (1970) 9

Cagle’s, Inc, v. NLRB, 588 F.2d 943 (5th Cir, 1979) .... 11

C & E Stores, Inc., 221 NLRB 218, 91 LRRM 1057 (1976) 11

Dresser Industries, Inc., 264 NLRB 145 (1982) 9

Gates Rubber Co., 103 LRRM 1158 (1979) 9

Gulf States Manufacturers, Inc. v. NLRB, 579 F. 2d 1298

(5th Cir. 1978) 11

J. McDermott & Co., Inc. v. NLRB, 571 F.2d 850 (5th

Cir. 1978), cert. denied, 439 U.S, 893 (1978) . 10

Iv

National Cash Register Co. v. NLRB, 494 F.2d 189 (8th

Cr, 1760 —————————— 10

NLRB v. Dayton Motels, Inc., 474 F.2d 328 (6th Cir.

15 ———7ꝙ5—ꝙ——————ßr————.— 9

NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333

— . 10

NLRB v. Moore Business Forms, Inc., 574 F.2d 835 (5th

REET De ae Ree ee 11

NLRB v. Proler International Corp., 635 F.2d 351 (5th

1 —A—A—[—j! — —— 10, 11

NLRB v. Topp Mfg. Co., Inc., 486 . 2d 644 (6th Cir.

—:: ... UNM a hetenssnnnshsceabioontvinn 10

NLRB v. Triplett Corp., 619 F.2d 586 (6th Cir, 1980) — 9

Pittsburgh & New England Trucking Co, v. NLRB, 643

e 10, 11

Rogers Mfg. Co. v. NLRB, 486 F.2d 644 (6th Cir. 1973) 9

Sahara-Tahoe Corp. v. NLRB, 648 F.2d 553 (9th Cir.

BOD — ——— 10

Skrl Die Casting, * v. NLRB, 641 F.2d 1218 (6th

ccc 11

C. K. Smith & Co., 227 NLRB 147, 95 LRRM 1617

— — ĩͤ ß 11

Soule Glass & Glazing Co. v. NLRB, 652 F. 2d 1055 (1st

1 ——O—————c—p— p —ç—— 10, 11

Stoner Rubber Co., 123 NLRB 1440 (1959) . 9

Telautograph Corporation, 199 NLRB 892, 81 LRRM

1337 (1972) 7, 8, 9, 10

Winn Dixie Stores, Inc. v. NLRB, 448 F.2d 8 (4th

Cir. 1971) * 11

Statutes

, ũ r—ůj ůĩ—j—j—— passim

29 U.S.C. § 159 (a), (e) (1) 3,7

No.

In the Supreme Court of the United States

October Term, 1982

WALKER DIE CASTING, INC.,

Petitioner,

vs.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Walker Die Casting, Inc. petitions for a Writ of Cer-

tiorari to review the Judgment of the United States

Court of Appeals for the Sixth Circuit in this case.

OPINIONS BELOW

The opinion of the National Labor Relations Board

(Appendix A, infra, pp. Al-A64) is officially reported at

255 NLRB 34. The Opinion of the Court of Appeals (Ap-

pendix B, infra, pp. A65-A69) is not officially reported.

The Order of the Court of Appeals denying the Petitioner’s

Motion for Reconsideration (Appendix C, infra, p. A70)

is not officially reported.

JURISDICTION

The judgment of the Court of Appeals was entered on

July 8, 1982. The Order denying the Petitioner’s Petition

for Rehearing and Suggestion for Rehearing En Banc was

entered on November 29, 1982. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1).

STATUTES INVOLVED

The relevant portions of the Labor-Management Rela-

tions Act of 1947, as amended, provide as follows:

“Section 8(a): It shall be an unfair labor prac-

tice for an employer—

(2) to dominate or interfere with the for-

mation or administration of any labor organiza-

tion.;

(5) to refuse to bargain collectively with

the representatives of his employees, subject to

the provisions of Section 9 (a).“

29 U.S.C. § 158 (a)

“Section 9(a): Representatives designated or se-

lected for the purposes of collective bargaining by

the majority in a unit appropriate for such purposes,

shall be the exclusive representatives of all the em-

ployees in such unit for the purposes of collective bar -

gaining in respect of rates of pay, wages, hours of

employment, or other conditions of employment.

3

(c)(1): Wherever a petition shall have been

filed, in accordance with such regulations as may be

prescribed by the Board—

(A): by an employee or group of employees

or any individual or labor organization acting in

their behalf alleging that a substantial number of

employees. . (ii) assert that the individual or

labor organization, which has been certified or is

being recognized by their employer as the bar-

gaining representative, is no longer a represen-

tative as defined in Section 9(a);...

the Board shall investigate such petition and if it

has reasonable cause to believe that a question of

representation affecting commerce exists shall

provide for an appropriate hearing upon due

notice.

29 U.S.C. § 159 (a), (e).

STATEMENT OF THE CASE

This case presents a significant question in the ad-

ministration of the Labor-Management Relations Act of

1947, as amended, 29 U.S.C. 58 151, et seq.

This case was commenced by the filing of unfair

labor practice charges by Local 259 of the Stove, Furnace

& Allied Appliance Workers’ International Union of North

America, AFL-CIO (hereinafter referred to as Union“)

alleging that the Petitioner Walker Die Casting, Inc. had

violated various sections of the Labor-Management Rela-

tions Act, as amended, 29 U.S.C. §§ 151, et seq. (the Act“)

including Section 8 (a) (5) of the Act. 29 U.S.C. § 158(a)

(5). The charges arose out of an economic strike which

commenced at the Petitioner’s Lewisburg, Tennessee plant

in August of 1979.

Following an administrative investigation of the

charges, a complaint was issued by the general counsel

of the National Labor Relations Board. The Board’s ad-

ministrative law judge issued a decision and order in which

he found that the Respondent had violated Sections 8(a)

(1), (2), (3), and (5) of the Act, by certain conduct which

it engaged in during the strike. Although rejecting the

allegations of the complaint that the strike was an unfair

labor practice strike from its commencement, the adminis-

trative law judge found that the strike which began as

an economic strike was converted to an unfair labor prac-

tice strike on August 27, 1979, when the Petitioner with-

drew its last pre-strike offer to the Union.

Timely exceptions to the administrative law judge’s

decision were filed by the Petitioner with the National

Labor Relations Board. With slight modification to the

administrative law judge’s findings with regard to one

allegation of Section 8(a)(1) conduct, the Board adopted

the administrative law judge’s findings and conclusions

in their entirety and modified his remedial order to con-

form with those findings.

The Petitioner filed a timely petition for review of

the Board’s Order with the United States Court of Ap-

peals for the Sixth Circuit pursuant to the provisions of

Section 10(f) of the Act. The Sixth Circuit found that

the Board had erred in its finding that the Petitioner’s

withdrawal of its last offer constituted a violation of Sec-

tion 8(a)(5) of the Act, and, therefore, that the strike

was converted to an unfair labor practice strike on August

27, 1979 because of that withdrawal. The Court found,

however, that the Petitioner did violate Section 8 (a) (5)

of the Act when, following the filing of a valid decertifi-

cation petition with the National Labor Relations Board

by its employees on September 7, 1979, the Company ad-

vised the Union on September 11, 1979 that it would “not

schedule further bargaining sessions until the petition [for

decertification] has been resolved.” The Court further

held that the strike was converted to an unfair labor

practice strike on and after September 11, 1979 by the

Company’s suspension of negotiations on that date. The

Court also concluded that the remaining findings and con-

clusions of the Board were supported by substantial evi-

dence and, therefore, entitled to enforcement.

The Petitioner’s Petition for Rehearing and Suggestion

for Rehearing En Banc was denied by the Court by an

Order entered on November 29, 1982.

REASONS FOR GRANTING THE WRIT

1. The decision of the Sixth Circuit Court of Appeals

in this case decides an important question of federal law

which has not been, but should be, settled by this Court

as to the duty and obligation of an employer to bargain

with the certified collective bargaining representative of

its employees when presented with a petition for decertifi-

cation filed with the National Labor Relations Board under

the provisions of Section 9 of the Act when that

petition presents a question of representation affecting

commerce. In light of the substantial increase in the num-

ber of decertification petitions processed by the NLRB

in the last three years, more and more employers are

presented with the decision which was presented to

the Petitioner in this case—whether to continue negotia-

tions with a union whieh may no longer represent a

majority of its employees and thereby risk a violation

of § 8(a) (2) of the Act, or to suspend negotiations, pend-

ing disposition of the petition and risk violation of §

8 (a) (5) of the Act.

2. The decision of the United States Court of Appeals

for the Sixth Circuit in this case, finding that the Petitioner

violated Section 8 (a) (5) of the Act when it advised the

Union that it would not schedule further bargaining ses-

sions until the decertification petition filed by its employ-

ees had been resolved, and, correspondingly, that the strike

by the Petitioner’s employees was converted to an unfair

labor practice strike by that violation, is in conflict with

1. According to the Forty-Fifth Annual Report of the

NLRB covering Fiscal Year 1980, 1798 petitions to decertify

existing bargaining representatives were filed in that twelve

month peri comprising 13.3% of the total of 13,318 election

petitions filed. In Fiscal Year 1981, decertification pe-

titions were filed constituting ........ % of the total of 12,177

election petitions filed. Forty-Sixth Annual Report of the NLRB.

7

the provisions of the Labor-Management Relations Act, as

amended, prior decisions of the National Labor Relations

Board and the decisions of other Courts of Appeals.

Section 8(a) (5) of the Act provides that it is an unfair

labor practice for an employer to refuse to bargain collec-

tively with the representative of his employees, “subject

to the provisions of Section 9(a).” Section 9(a) of the

Act provides that only a representative “designated or

selected. . . by the majority of the employees in a unit

appropriate for such purposes” shall be the exclusive repre-

sentative of the employees in that unit. Section 9(c) sets

forth the procedure for determining questions of represen-

tation affecting commerce raised either by the filing of

a petition alleging that a substantial number of employees

wish to be represented for collective bargaining or asserting

that the labor organization which has been certified as

the bargaining representative for such a group of employ-

ees, is no longer a representative as defined in Section

9(a).

Under the Board’s own rules and regulations, a petition

for decertification supported by 30% of the employees

in an appropriate unit raises a “question concerning repre-

sentation affecting commerce” so that an election will be

conducted by the Board to determine whether or not the

labor organization does, in fact, still represent a majority

of the employees in that unit. In this case, a petition

supported by at least 30% of the employees in the unit

represented by the Union was filed with the Regional

Office of the National Labor Relations Board and an elec-

tion was conducted pursuant to that Petition by the Board.

In Telautograph Corporation, 199 NLRB 892, 81

LRRM 1337 (1972), the Board held that an employer pre-

sented with a decertification petition from his employees

8

is justified in suspending negotiations with the employees’

union pending disposition of the decertification proceed-

ing:

“(T]he decertification petition, supported by an

adequate showing of interest . . , raised a question

concerning representation. In Shea Chemical Cor-

poration, 121 NLRB 1027, 42 LRRM 1486, the Board

established the rule that when a real question concern-

ing representation has been raised by the filing of

a petition by a rival union that ‘an employer may

not go so far as to bargain collectively with the in-

cumbent (or any other) union until the question con-

cerning representation has been settled by the Board.’

The same rule should be applied where a real question

concerning representation has been raised by the

timely filing of a decertification petition.” 81 LRRM

at 1337. (Emphasis added).

In an Advice Memorandum (an internal legal memo-

randum setting forth the Board’s General Counsel’s inter-

pretation of the law under the Act) written to one of

the Board’s regional directors in 1979 (the same year in

which the suspension of negotiations occurred in this case),

the obligation of an employer to suspend negotiations in

the face of a valid decertification petition was summarized

as follows:

“Since the R.D. [decertification] petition has

therefore raised a question concerning representation,

and since the Employer, relying on the R.D. petition

has simply refused to bargain for a new contract, the

Employer’s conduct was considered privileged.

“The rationale for the above result is that it

would have been a Section 8 (a) (2) violation for the

Employer to have bargained for and executed a new

contract in the face of the question concerning rep-

resentation raised by the R.D. petition. Hence, it

was not unlawful for the Employer to refuse to do so.”

(Emphasis added).

Gates Rubber Company, Case No.

27-CA-6387, 103 LRRM 1158 (1979).

See, also, Stoner Rubber Co., 123

NLRB 1440 (1959).?

The Sixth Circuit recognized that same obligation in

Automated Business Systems v. NLRB, 497 F.2d 262 (6th

Cir. 1974); NLRB v. Dayton Motels, Inc., 474 F.2d 328

(6th Cir. 1973); and Bally Case and Cooler, Inc. v. NLRB,

416 F.2d 902 (6th Cir. 1969), cert. denied, 399 U.S. 910

(1970). See also, NLRB v. Triplett Corp., 619 F.2d 586

(6th Cir. 1980). Although that Court reached a contrary

result in Rogers Manufacturing Company v. NLRB, 486

F.2d 644 (6th Cir. 1973), cited as authority for the panel’s

decision in the instant case, that decision was based in

part on the Court’s finding that the employer in Rogers

had engaged in a number of unfair labor practices before

the filing of the decertification petition. To the extent

that the court in Rogers might have held that the filing

of such a petition would not justify a suspension of negotia-

2. In Dresser Industries, Inc., 264 NLRB 145 (September

30, 1982), the Board, noting that existing law permitted an Em-

ployer to suspend bargaining with an incumbent Union upon

the filing of a valid decertification petition raising a question

concerning representation as set forth in its earlier decision in

Telautograph Corporation, 199 NLRB 892 (1972), overruled its

earlier holding in Telautograph and held that the filing of such

a petition would not, therafter, permit an employer to suspend

bargaining with an incumbent "Union. Recognizing that its de-

cision overruled eixsting law as established in Telautograph, the

Board found no violation of Section 8(a) (5) A! the Respondent

in Dresser Industries “inasmuch as Responde ent was acting in

accordance with existing Board law. That “

Board law” was the same law under which the Petitioner Walker

Die Casting, Inc. acted when it suspended negotiations with the

Union in September of 1979.

10

tions, that holding is contrary to the Board’s holding in

Telautograph as well as the holdings of several other

Courts of Appeals which have followed Telautograph.

The Fifth, Eighth and Ninth Circuit Courts of Appeals

have expressly recognized and followed the Board’s de-

cision in Telautograph Corporation, holding that the filing

of a valid decertification petition justifies the suspension

of negotiations by an employer pending resolution of the

question concerning representation raised by such a pe-

tition. Sahara-Tahoe Corporation v. NLRB, 648 F.2d 553

(9th Cir. 1980); J. McDermott & Co., Inc. v. NLRB, 571

F.2d 850 (5th Cir. 1978), cert. denied, 439 U.S. 893 (1978);

National Cash Register Co. v. NLRB, 494 F.2d 189 (8th

Cir. 1974).

3. The holding of the Sixth Circuit in this case that

the Union’s strike was converted to an unfair labor prac-

tice strike on September 11, 1979 is contrary to the decision

of this court in NLRB v. Mackay Radio & Telegraph Co.,

304 U.S. 333 (1938) and to the decisions of every other

Court of Appeals that has ruled on the issue of the con-

version of an economic strike to an unfair labor practice

strike. The law is clear that in order for a strike which

begins as an economic strike to be converted into an

unfair labor practice strike, the strike must be intensified

or prolonged by unfair labor practices committed by the

employer. See, e.g., NLRB v. Mackay Radio and Tele-

graph Co., 304 U.S. 333 (1938); Soule Glass & Glazing Co.

v. NLRB, 652 F.2d 1055 (Ist Cir. 1981); Pittsburgh &

New England Trucking Co. v. NLRB, 643 F.2d 175 (4th

Cir. 1981); NLRB v. Proler International Corporation, 635

F.2d 351 (5th Cir. 1981); NLRB v. Topp Manufacturing Co.,

Inc., 486 F.2d 644, 649 (6th Cir. 1973); Allied Industrial

Workers, AFL-CIO Local Union No. 289 v. NLRB, 476

F.2d 886 (D.C. Cir. 1973).

11

A violation of the Act alone does not convert an eco-

nomic strike into an unfair labor practice strike. Skrl

Die Casting, Inc. v. NLRB, 651 F.2d 1218, 1219 (6th Cir.

1981); Pittsburgh & New England Trucking Co. v. NLRB,

643 F.2d 175 (4th Cir. 1981); NLRB v. Moore Business

Forms, Inc., 574 F.2d 835, 840 (5th Cir, 1978). Absent

substantial evidence of a causal link between an unfair

labor practice committed by the employer and the continu-

ation of the strike, the strike remains an economic one.

NLRB v. Proler International Corporation, 635 F.2d at

354; Cagle’s Inc. v. NLRB, 588 F.2d 943, 950 (5th Cir.

1979); Gulf States Manufacturers, Inc. v. NLRB, 579 F.2d

1298, 1327 (5th Cir. 1978); Soule Glass & Glazing Co.

v. NLRB, 652 F.2d 1055, 1079-80 (1st Cir. 1981). In order

to support a finding that a strike is in protest of an em-

ployer’s unfair labor practices there must be evidence that

the strike is primarily because of the unfair practices of

the employer, and that such practices actually were consid-

ered by the employees in their decision to strike or to

continue the strike. Soule Glass & Glazing Co. v. NLRB,

supra, at 1080-1; C. K. Smith & Co., 227 NLRB 147, 95

LRRM 1617 (1977); C & E Stores, Inc., 221 NLRB 218,

91 LRRM 1057 (1976). Neither the Administrative Law

Judge, the Board, nor the Sixth Circuit made any finding

that the Petitioner’s suspension of negotiations after the

filing of the decertification petition was considered by

the striking employees or constituted a factor which “in-

tensified or prolonged” the strike. Indeed, there were

no facts in the record which would have supported such

a finding. The only discussion of unfair labor practices

by the union or its members as part of the decision to

continue the strike occurred in January 1980, after the

decertification election and after most of the strikers had

returned to work. This case represents the classical situa-

tion recognized by the Fourth Circuit in Winn Dixie Stores,

Inc. v. NLRB, 448 F.2d 8, 12 (4th Cir. 1971) as a “clearly

12

apparent .. [attempt] to salvage an unsuccessful eco-

nomic strike.

4. A determination that an employer is justified in

suspending negotiations with the certified collective bar-

gaining representative of its employees upon the filing

of a valid decertification petition which raises a question

concerning representation is required to clarify the rights

of an employer when presented with conflicting claims

regarding the representation of its employees and to pro-

tect the rights ot those employees themselves who are

following the procedures set forth in the Act to test the

majority status of a collective bargaining representative

whom they no longer desire to have represent them. If

the decision of the Sixth Circuit in this case is permitted

to stand, employers would be required to continue to nego-

tiate with and, where possible, reach agreement with a

collective bargaining representative who may no longer

represent a majority of its employees. Such a requirement

precludes the right of employees conferred by § 7 of the

Act to be represented by an organization chosen by a

majority of those employees in accordance with the pro-

cedures set forth in the Act, and places their employer in

the position of risking a violation of § 8(a)(2) of the Act

on one hand by negotiating with a union which does not

represent a majority of its employees, and a violation of

§ 8(a)(5) on the other if it suspends negotiations pending

resolution of the question concerning representation.

5. This Court should also clarify the elements of

proof necessary to support a finding that an economic

strike has been converted to an unfair labor practice strike

where there is no evidence that the factors relied upon

by the Board to support such a finding were ever consid-

ered by the striking employees as an issue which “intensi-

fied” or “prolonged” the strike which clearly began as

an economic one.

13

CONCLUSION

For the foregoing reasons, the Petition for a Writ

of Certiorari should be granted.

Respectfully submitted,

WILIA N. OZzIEr

Counsel of Record

2700 First American Center

Nashville, Tennessee 37238

Attorney for Petitioner

Of Counsel:

Bass, Berry & Sous

2700 First American Center

Nashville, Tennessee 37238

APPENDIX A

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

Cases 26-CA-8196,

26-CA-8213-1-3,

26-CA-8227,

26-CA-8396, and

26-CA-8477

WALKER DIE CASTING, INC.

and

LOCAL 259, STOVE, FURNACE, AND ALLIED

APPLIANCE WORKERS’ INTERNATIONAL

UNION OF NORTH AMERICA, AFL-CIO

and

EMPLOYEE COMMITTEE

Party in Interest

DECISION AND ORDER

On November 19, 1980, Administrative Law Judge J.

Pargen Robertson issued the attached Decision in this

proceeding. Thereafter, Respondent filed exceptions and

a supporting brief.

The Board has considered the record and the attached

Decision in light of the exceptions and brief and has de-

A2

cided to affirm the rulings, findings,’ and conclusions* of

the Administrative Law Judge and to adopt his recom-

mended Order, as modified herein.“

1. Respondent has excepted to certain credibility findings

made by the Administrative Law Judge. It is the Board's estab-

lished policy not to overrule an administrative law judge's reuo-

lutions with respect to credibility unless the clear preponder-

ance of all of the relevant evidence convinces us that the reso-

lutions are incorrect. Standard Dry Wall Products, Inc., 91

NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have

carefully examined the record and find no basis for reversing his

findings.

2. The Administrative Law Judge found that Respondent,

by posting its August 16, 1979, notice, violated Sec, 8(a)(1) and

(5) of the Act by communicating directly with employees, so-

liciting employees to refuse to honor a strike if one is called, and

advising employees to resign from the Union to avoid a fine. We

agree with the Administrative Law Judge, but for reasons other

than those cited in his Decision. Lehigh Lumber Company, and

Brown-Borhek Company, 230 NLRB 1122, fn. 1 (1977), cited by

the Administrative Law Judge in support of his conclusions, is

distinguishable from the case at hand since the respondent in

Lehigh, supra, in an effort to induce an employee to abandon

the union, promised him increased wages and benefits which

had not been offered the union. However, the record herein

amply supports the finding of a violation of Sec. 8(a)(1) and

(5) of the Act. First, although Respondent advised employees

to resign from the Union to avoid a fine, the Union had made

no threat to fine employees. In addition Respondent, after post-

ing the August 16, 1979, notice, unilaterally raised starting wages,

unlawfully withdrew its last contract offer and ceased to bar-

gain, made numerous coercive comments including threats to

“bust the Union,” and finally established an unlawful “Employee

Committee“ as an alternative to the Union. These actions estab-

lish a pattern of conduct clearly intended to dissipate employee

— get for the Union as the sole collective-bargaining agent. We

find that the August 16 notice was not an innocent attempt by

Respondent to advise employees of their rights or to give notice

of the intention to operate during the strike, but was calculated

to undermine the Union and set the stage for further attempts to

bypass and ignore the Union, all in violation of Sec. 8(a)(1) and

(5) of the Act. See Bromine Division, Drug Research, Inc., 233

NLRB 253, 263 (1977), enfd. 621 F.2d 806 (6th Cir, 1980);

O’Land, Inc. d/b/a Ramada Inn South, 206 NLRB 210, 219 (1973).

3. The recommended Order and notice have been modified

to remedy all unfair labor practices found by the Administrative

Law Judge and to clarify the reinstatement rights of returning

strikers. Larand Leisurelies, Inc., 213 NLRB 197, 198 (1974),

enfd. 523 F.2d 814 (6th Cir, 1975).

A3

ORDER

Pursuant to Section 10(c) of the National Labor Re-

lations Act, as amended, the National Labor Relations

Board adopts as its Order the recommended Order of ihe

Administrative Law Judge, as modified below, and hereby

orders that the Respondent, Walker Die Casting, Inc.,

Lewisburg, Tennessee, its officers, agents, successors, and

assigns, shall take the action set forth in the said recom-

mended Order, as so modified:

1. Substitute the following for paragraph 1 (a):

“(a) Interfering with, restraining, and coercing the

employees in the exercise of the rights guaranteed them

in Section 7 of the Act, in violation of Section 8(a) (1) of

the Act, by threatening not to reinstate employees be-

cause of the employees’ union activities; threatening em-

ployees that they were to mind their knitting when they

returned to work because of their union activities;

threatening to get rid of the Union; offering wage in-

creases in order to induce its employees to break the

strike and return to work; telling employees that if it had

to reinstate everybody in the Union, it was in no hurry to

start back to negotiations; threatening to shut the door

of the plant rather than continuing to deal with the union

president; telling its employee that by returning to work

after engaging in the strike she had lost her seniority

status; informing employees that they would not be con-

sidered for employment until after the decertification

election; removing its employees’ picket signs; advising

employees to resign from the Union; soliciting employees

to refuse to honor a strike; engaging in surveillance of its

employees’ union activities; threatening its employees that

there would be no more collective-bargaining agreements

A4

with the Union; and telling its employees that they would

have a good place to work once the Union was defeated.”

2. Substitute the following for paragraph 1(f):

„(f) Unilaterally, without bargaining with Local 259,

Stove, Furnace, and Allied Appliance Workers’ Interna-

tional Union of North America, AFL-CIO, as the exclusive

collective-bargaining representative of the employees in

the above-described unit, changing its wages or other con-

ditions of employment, unilaterally establishing an em-

ployee committee, withdrawing its last contract proposal,

or communicating directly with employees instead of bar-

gaining with the above-named Union.”

3. Add the following sentence at the end of para-

graph 2 (a):

“If, after such discharges, sufficient jobs are not avail-

able for these employees, they shall be placed on a pre-

ferential hiring list in accordance with their seniority or

other nondiscriminatory practice theretofore utilized by

Respondent, and they shall be offered employment before

any other persons are hired.”

4. Substitute the attached notice for that of the Ad-

ministrative Law Judge.

Dated, Washington, D.C. March 24, 1981

John H. Fanning, Chairman

Howard Jenkins, Jr., Member

Don A. Zimmerman, Member

(Seal) National Labor Relations Board

A5

APPENDIX

NOTICE TO EMPLOYEES

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

WE WILL NOT threaten our employees that we

will not reinstate them because of their activities on

behalf of Local 259, Stove, Furnace, and Allied Ap-

pliance Workers’ International Union of North Amer-

ica, AFL-CIO, or any other labor organization, or be-

cause they engage in strike activity.

WE WILL NOT tell our employees that they are

to mind their own knitting because of the employees’

union activities.

WE WILL NOT threaten to get rid of the Union.

WE WILL NOT offer our employees higher wazes

in order to induce our employees to break a strike

and return to work.

WE WILL NOT tell our employees that we are in

no hurry to resume collective-bargaining negotiations

if we have to reinstate everybody in the Union.

WE WILL NOT threaten our employees with

plant shutdown because we have to deal with the

union president.

WE WILL NOT tell employees that they have

lost their seniority by engaging in a strike.

WE WILL NOT inform our employees that re-

employment will have to await a decertification

election.

A6

WE WILL NOT remove our employees’ picket

signs from public property.

WE WILL NOT advise employees to resign from

the Union nor solicit employees to refuse to honor

a strike.

WE WILL NOT engage in surveillance of our em-

ployees’ union activities.

WE WILL NOT threaten our employees that there

will be no more collective-bargaining agreements with

the Union.

WE WILL NOT inform our employees that they

will have a good place to work once the Union is

defeated.

WE WILL NOT discharge or refuse to reinstate

our employees or otherwise discriminate against our

employees because of their strike activities or union

activities.

WE WILL NOT form, assist, support, dominate, or

interfere with the Employee Committee.

WE WILL NOT vary or abandon any wage, hour,

or other substantive benefit established for our em-

ployees as a result of our dealing with the Employee

Committee.

WE WILL NOT recognize and will completely

disestablish the Employee Committee, or any successor

thereto, as the representative of our employees con-

cerning wages, rates of pay, hours of employment, or

any other terms and conditions of employment, in-

cluding the settlement of grievances.

WE WILL NOT refuse to bargain collectively

concerning rates of pay, wages, hours, and other terms

AT

and conditions of employment with Local 259, Stove,

Furnace, and Allied Appliance Workers’ International

Union of North America, AFL-CIO, as the exclusive

representative of the employees in the bargaining unit

described below.

WE WILL NOT unilaterally change our wage

rates, or other conditions of employment, or establish

an employee grievance committee without first nego-

tiating with the above-mentioned Union as the ex-

clusive representative of the employees in the bar-

gaining unit described below; withdraw our last

contract proposal; nor communicate directly with em-

ployees instead of bargaining with the Union.

WE WILL NOT in any other manner interfere

with, restrain, or coerce our employees in the exercise

of the rights guaranteed them by Section 7 of the

National Labor Relations Act.

WE WILL offer immediate and full reinstatement

to: Cathy Becquet, Dickie Adkins, Lacon Crossland,

Sam Cook, Michael Cross, Robert Hayes, Michael

Holder, Larry Jones, Jimmy Prince, Larry Peters, E.

W. Woodward, David Wentzell, Alfred Jett, Dewey

Wayne Rowe, Michael Wayne Brewer, Charles E. Mc-

Cord, Ann Derryberry, Eddie Ward, Clyde Erwin,

Sherry D. Willoughby, David Sherin, Chit Derryberry,

James D. Flowers, Gary McClendon, Wesley Poteete,

Sandra D. Luna, Jimmy Winchester, Raymond P.

Osborne, Edel Sparks, Eugene Pullen, Roy Rowe, Paul

Rowe, James E. Stewart, Becky Gillium, William

Frank Stewart, Margaret Neill, Karon Pischel Wells,

Nancy Reed, John Liggett, Stanley Galbraith, Marie

Logue, Ruby Eckenroth, Larry S. Hopper, Shirley P.

Metcalf, Nancy Diane Smith, Sam L. Cook, Jr., Ben

A8

Porterfield, William F. Davis, Thomas R. Smith, Roy

Garrett, Ronnie L. Burns, Wilburn Phillips, James

Stegall, Chestley H. Derryberry, Mark Welch, William

Edwin Taylor, Bill D. Spence, Eddie Ward, Frankie

Moore, Wendell J. Rowe, Jackie Metcalf, Mark Welch,

and Denise Luker to their former jobs or, if their

jobs no longer exists, to substantially equivalent jobs,

discharging, if necessary, any replacements hired on

or after August 27, 1979. If, after such discharges,

sufficient jobs are not available for these employees,

they shall be placed on a preferential hiring list in

accordance with their seniority or other nondiscrimina-

tory practice theretofore utilized by us, and they shall

be offered employment before any other persons are

hired, and WE WILL make each of those employees

whole, with interest, for any loss they may have suf-

fered as a result of our discrimination against them.

WE WILL, upon request, bargain with the above-

named Union as the exclusive representative of all

employees in the bargaining unit described below with

respect to rates of pay, wages, hours, and other terms

and conditions of employment and, if an understanding

is reached, embody such understanding in a signed

agreement. The bargaining unit is:

All production and maintenance employees, in-

cluding shipping, receiving, and tool crib em-

ployees, excluding all office clerical employees,

technical and professional employees, and super-

visors as defined in the Act.

Walker Die Casting, Inc.

(Employer)

Dated — — ̃ ̃ —ꝛ.:

(Representative) (Title)

A9

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, de-

faced, or covered by any other material. Any questions

concerning this notice or compliance with its provisions

may be directed to the Board's Office, Mid-Memphis Tower,

8th Floor, 1407 Union Avenue, P.O. Box 41559, Memphis,

Tennessee 38104, Telephone 901---521-2687.

Al0

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

DIVISION OF JUDGES

BRANCH OFFICE

ATLANTA, GEORGIA

CASES 26-CA-8196

26-CA-8213-1-3

26-CA-8227

26-CA-8396

26-CA-8477

WALKER DIE CASTING, INC.

and

LOCAL 259, STOVE, FURNACE, AND ALLIED

APPLIANCE WORKERS’ INTERNATIONAL

UNION OF NORTH AMERICA, AFL-CIO

and

EMPLOYEE COMMITTEE

(Party in Interest)

Robert G. Levy, II, Esq.,

Counsel for the General Counsel.

William N. Ozier, Esq.,

Counsel for Respondent.

Carroll D. Kilgore, Esq.,

Counsel for Charging Party.

All

DECISION

Statement of the Case

J. PARGEN ROBERTSON, Administrative Law

Judge: This case was heard on June 16, 1980 througn

June 19, 1980, at Lewisburg, Tennessee. The charge in

Case 26-CA-8196 was filed on December 13, 1979, and

amended on December 21, 1979. The 26-CA-8213-1 charge

was filed on January 1, 1980. The charge in 26-

CA-8213-3 was filed on January 3, 1980, and amended

on January 16, 1980. Case 26-CA-8227 was filed on Janu-

ary 16, 1980, and amended on January 29, 1980. Case

26-CA-8396 was filed on April 23, 1980. Case 26-CA-8477

was filed on June 9, 1980, and amended on June 12, 1980.

An Order Consolidating Cases, Consolidated Complaint and

Notice of Hearing issued on February 22, 1980. An Order

Consolidating Cases, Amended Consolidated Complaint and

Notice of Hearing issued on May 21, 1980, and was amended

on at the hearing on June 16, 1980, to allege:

(1) Respondent engaged in violations of Section 8(a)

(5) by failing to recognize and bargain collectively with

the Charging Party (Union) by (a) proposing that employ-

ees be allowed to revoke union dues checkoff authorizations

at any time within 10 days’ notice; (b) suggesting that

union members resign their union membership before

crossing the picket line to avoid the possibility of a fine

by the Union; (c) withdrawing its last contract offer

presented during negotiations; (d) unilaterally implement-

ing wage increases in excess of those offered during nego-

tiations; (e) unilaterally implementing an attendance

bonus; (f) making the attendance bonus applicable on

a weekly basis, then changing it to monthly, and back

to weekly again; (g) unilaterally establishing an employee

Al2

grievance committee; and (h) refusing to recognize and

bargain with the Union since September 11, 1979.

(2) Respondent engaged in violations of Section 8(a)

(3) by failing and refusing to reinstate numerous employ-

ees following their unconditional offers to return to work

and by discharging numerous employees, including various

probationary employees and employee Cathy Becquet.

(3) Respondent engaged in violations of Section 8 (a)

(2) by establishing, recognizing and bargaining with an

Employee Committee.

(4) Respondent engaged in violations of Section 8(a)

(1) on numerous occasions; and

(5) Respondent caused and prolonged a strike by

its employees, through the unfair labor practices alleged

in the complaint.

Upon the entire record, my observation of the wit-

nesses and after due consideration of the briefs filed by

General Counsel and Respondent, I hereby make the fol-

lowing:

Findings“

Since 1971, Respondent and the Union have been par-

ties to several collective-bargaining agreements. During

1. Neither the allegations regarding commerce nor the

status of the Charging Party are in dispute. The complaint al-

leges, the Respondent admitted, and I find, that Walker Die

C Inc. is a corporation with a place of business in Lewis-

burg, Tennessee, where it is engaged in the manufacture and

non-retail distribution of custom zinc and die castings. Respon-

dent admitted, and I find, that annually, during the course and

conduct of its business operations, it has sold and shipped from

its Lewisburg, Tennessee facilities goods and materials valued in

excess of $50,000 directly to points outside the State of Tennessee

and it purchased and received at its Lewisburg facility products,

(Continued on following page)

Al3

that period Respondent continuously represented Respon-

dent’s production and maintenance employees.“

During early 1979, Respondent asked the Union to

engage in early negotiations. The collective-bargaining

agreement in existence at that time was set to expire

on August 18, 1979.

However, negotiations did not begin until the parties

met on June 29, 1979. Thereafter, negotiation sessions

occurred on August 7, 13, 14, 16 and 17, 1979.

On August 18, 1979 Respondent employees struck.

General Counsel contends that Respondent did not

engage in good faith bargaining and that the strike was

an unfair labor practice strike. In consideration of whether

the strike was an unfair labor practice strike from its

inception, the complaint alleges two matters which oc-

curred on or before August 18 as contributing causes to

Footnote continued—

goods and materials valued in excess of $50,000, from

points outside the State of Tennessee. Respondent admitted

and I find, that at all material times it was an employer engaged

in commerce within the meaning of Section 2(2), (6) and (7)

of the Act. The complaint alleged, the Respondent admitted, and

I find, that the Charging Party (Union) is now, and has been

at all times material herein, a labor organization within the

meaning of Section 2(5) of the Act,

The complaint also alleged and on the basis of unrebutted

record evidence I find that the Employee Committee constituted

an employee representation committee in which employees par-

ticipated and which existed for the purpose of dealing with Re-

spondent concerning grievances and conditions of work. On

the basis of that allegation and the record evidence, I find that

the Employee Committee constituted a labor organization within

the meaning of Section 2(5) of the Act.

2. The unit, which Respondent admitted to be an appropriate

unit, is described as: “All production and maintenance em-

ing

excluding all office clerical employees, technical and profes-

sional employees, and supervisors as defined in the Act.“

Al4

the strike: (1) Respondent, during contract negotiations,

proposed that employees be allowed to revoke union dues

checkoff authorizations at any time within 10 days’ notice;

and (2) Respondent suggested to employees that the union

members resign their union membership before crossing

the picket line to avoid possibility of a fine by the Union.

Following the beginning of the strike, Respondent al-

legedly engaged in numerous Section 8(a)(1) violations

beginning in August 1979 and extending into the spring

of 1980. Additionally, Respondent allegedly engaged in

other Section 8(a) (5) violations; Section 8(a) (3) violations

by refusing to reinstate some employees and discharging

others; and Section 8(a) (2) violations by establishing, rec-

ognizing and bargaining with an Employee Committee.

During the strike there was very little contact between

the Respondent and the Union. On September 7, 1979,

the Union submitted a contract proposal to Respondent.

However, on September 11, 1979, Respondent notified the

Union that it did not “feel that any further meetings

can be scheduled until the petition has been resolved.’

No further negotiations occurred between the parties after

August 17, 1979.

3. A decertification petition (26-RD-458) was filed with

Region 26 on September 6, 1979. A Stipulation for Consent

Election agreement was approved by the Regional Director on

October 2, 1979. An election was held on October 19, 1979. The

tally of ballots of that election indicated there were approxi-

mately 205 eligible voters, 58 votes were cast for the Union, 70

votes were cast against the Union and there were 36 challenged

ballots which were determinative. Union objections were filed

on October 26, 1979. A hearing was directed and held on De-

cember 10-14, 1979. However, no decision or recommendation

issued as a result of that hearing. On February 7, 1980, an

order issued dismissing the 26-RD-458 petition, A request for

review was filed by Respondent on February 19, 1980. at re-

quest for review was denied the Board on April 3, 1980, with-

out prejudice to the petition being reinstated, but depending on

the outcome of the instant proceeding.

Al5

Conclusions

A primary question in this case is whether the August

18 strike was an unfair labor practice strike and, if so,

whether it was an unfair labor practice strike from its

inception, or whether it started as an economic strike

but was, at some point, converted to an unfair labor prac-

tice strike. Therefore, I have categorized the complaint

allegations on the basis of pre-strike allegations and on

allegations regarding incidents which occurred following

commencement of the strike.

(1) Pre-strike Allegations:

(a) The negotiations:

General Counsel, in his brief, contends that Respon-

dent, during negotiations with the Union, engaged in sur-

face bargaining. In consideration of Respondent’s conduct

prior to the employees’ August 18 strike, I find little sup-

port for General Counsel’s contention.

Respondent’s president, Robert Walker, testified that

during early 1979 he asked the Union to engage in early

negotiations, No evidence was offered to contest Walker’s

testimony in that regard. The Union’s vice-president, E.

Ray Sullivan, admitted that Walker contacted the commit-

tee in January or February 1979 and indicated that he

would like to start negotiations early. Sullivan testified

that he told Walker that he was ready to start negotiations

at any time. However, Sullivan admitted that the Local

did not respond to Walker’s request to start early. Fur-

thermore, there is no evidence that the Union sought to

start negotiations prior to June 11.

On June 11 the Union wrote Respondent requesting

negotiations. On June 29 the parties met at the first nego-

tiations session, At that time the Union presented its pro-

Al6

posals. According to the testimony of Robert Walker, the

Union’s June 29 proposed contract was exceedingly long.

In early August, Respondent countered with its own

contract proposals. During the negotiations sessions of

August 13, 14, 16 and 17, proposals from both parties were

on the table. The Union’s original proposal appears to con-

tain some 48 separate articles.

Mr. Sullivan admitted that on August 17 the only

matters left unresolved included wages, the merit system,

dues checkoff, shift preference and temporary transfers.

During the August 17 session an agreement was reached

on a number of items including payment of the 20¢ shift

premium differential, a grievance procedure and the length

of the agreement.

Regarding the outstanding issues, General Counsel, in

its brief, points out that Respondent did not furnish its

wage proposal unitl August 14—three days before the con-

tract expired at midnight on August 17.

General Counsel also pointed to the temporary trans-

fer issue in support of its argument. During negotiations

Respondent argued that that provision should be changed

to avoid confusion as to its intent—confusion which had

already resulted in an arbitration case.

General Counsel also pointed to the disagreement re-

garding the merit system. As to that issue, during nego-

tiations the Union sought to eliminate the merit system

provision of the contract on the assertion hat the system

was not working. In support of its argument, the Union

pointed out that some senior employees had not reached

the top pay for their classifications. Respondent argued

that the system was working and insisted on retaining that

provision.

Al7

I find nothing in the above matters which would con-

tribute to a finding of surface bargaining. Although Re-

spondent's wage proposal of August 14 gave the Union

little time before the contract expiration, I must recall

that the Union was offered an opportunity by Respondent

to engage in early negotiations. Also, the Union’s proposal

of June 29 was extensive. Therefore, I do not find that

Respondent was dilatory in making a wage proposal on

August 14. As to the temporary transfer and the merit

system provisions, I find nothing improper in Respondent's

position.

The remaining question presented by General Coun-

sel—one that is alleged as violative by the complaint—was

Respondent’s proposal to change the contract’s union dues

checkoff provisions. Respondent’s proposal did not seek

to eliminate dues checkoff but to change the provision to

permit employees to revoke their checkoff authorization on

10 days’ notice. I have examined the cases in this regard,*

but I have found nothing which would warrant my find-

ing a violation. Although Respondent insisted on its dues

checkoff proposal, it was during the same negotiations

sessions agreeing to accept various union proposals and

agreeing to change or drop proposals which it had made.

In the circumstances of Respondent’s proposal there

were no other factors which demonstrated, during the pe-

riod before the strike, that Respondent was bargaining in

bad faith.

Therefore, I find that by proposing to amend the dues

checkoff provision to permit employees to revoke their

4. Markle Manufacturing Company of San Antonio, 239

NLRB No. 187 (1979); Sweney and Co. v. N.L.R.B., 437 F.2d 1127,

76 LRRM 2321 (C. A. 5, 1971), enforcing in part 176 NLRB No.

27; Longhorn Machine Works, 205 NLRB 685 (1973).

Al8

authorization at any time with a 10 days’ notice, Respon-

dent did not engage in conduct violative of the Act.“

(b) The August 16, 1979 memo to employees:

Robert Walker testified that he advised employees by

August 16, 1979 memo as follows:

8/16/79

TO: All Employees of Walker Die Casting, Inc.

SUBJECT: Company Plans -

As all of you know, we are currently negotiating with

our Union a new contract to replace the one we now

have, which expires at midnight, Friday, August 17th.

It is the Company’s intention to do all that is in its

power to reach a mutually agreeable contract with the

Union by the above date. We are confident that the

Union negotiating committee will reciprocate.

However, if a contract is not agreed on and there is a

strike, the Company plans to operate the plant. Work

will be available for any employees who wish to re-

port. Employees, who are members of the Union, may

want to resign from Union membership before cross-

ing the picket line in order to avoid the possibility of

a fine by the Union. You may resign by sending a

certified letter to the Union, with a copy to the

Company.

In the event of a strike by the Union, the Company

plans to open for work on Tuesday, August 21, at 7:00

a.m., for anyone who desires to report.

An announcement will be put on the radio on Sunday,

August 19, stating the Union’s decision whether to

accept or reject the contract.

5. Midwest Casting Corp., 194 NLRB 523 (1971).

Al9

Anyone, who has any questions, may contact the

Company on Monday, August 20th.

/s/ R. H. Walker

R. H. Walker, President

General Counsel alleges that by that memo Respon-

dent violated Section 8 (a) (1) and (5) of the Act. I agree.

By communicating directly with the employees’, soliciting

employees to refuse to honor a strike, if one is called, and

advising its employees to resign from the Union to avoid a

fine, Respondent engaged in violative conduct.®

(c) Was the strike an unfair labor practice strike

at its inception:

Although, as indicated above, the Respondent engaged

in an unfair labor practice on the day before the employees

struck, the record contains no evidence that that unfair

labor practice contributed to the strike.’ In fact, the evi-

dence which I credit demonstrates that the strike was

caused by the Respondent’s failure to agree to a contract.

Employee witnesses who attended the August 18 union

meeting and were asked about that meeting testified that

they were told by the Union that the strike would be an

economic strike. There was no evidence indicating that

Respondent’s August 16 memo to employees was men-

tioned or that it constituted a contributing factor. There-

fore, I find that the strike was, at its beginning, not an

unfair labor practice strike.

6. Lehigh Lumber Co., 230 NLRB 1122, fn. 1.

7. Compare, Larand Leisurelies, Inc., 213 NLRB 197, fn. 4.

A20

(2) Allegations Regarding Activities During the

Strike:

(a) Section 8(a) (1) allegations:

1. Allegations regarding Robert Walker:

(i) Threat not to reinstate:

Cathy Becquet testified concerning some conversations

she had with Plant Manager Walker regarding her return-

ing to work after the strike began. Becquet testified that

on September 12, 1979, she called first Plant Superinten-

dent Kenny Atkisson and then President Walker regarding

returning to work. Regarding her conversation with Mr.

Walker, Becquet testified that she identified herself and

told Mr. Walker that she would like to come back to work.

Walker told her that he didn’t want to take her back, that

he did not like the business with the scab list.“ Walker

told Becquet that he would check with his lawyer and see

if he had to take her back. Becquet told Walker she did

not think she had done anything wrong and needed to come

back to work. Walker said that he did not want any union

officers or committeemen and a few other people back

in the plant.“

Pursuant to Walker’s instructions, Becquet called Mr.

Walker back on September 14. At that time, Walker told

her that he was not taking her back to work and that she

could take whatever action she wanted. Walker said that

he had not gotten in touch with his lawyer but that he

8. Becquet, and some of the other employees on the picket

line, prepared a list of employees that had crossed the picket

line and reported to work, and posted that list of employees on

a board which was placed on the picket line.

9. Becquet had served as an alternate on the Union’s nego-

tiation committee and had been present during the negotiation

and bargaining session.

A2l1

had decided that he was not going to take Becquet back.

Becquet asked about a discharge slip so she could draw un-

employment and Walker told her that he couldn’t give her

a paper, that he did not want her to draw unemployment.

Walker told her that she had quit when she went out on

strike. Walker said he was not going to take any of the

union officers back again. Walker told Becquet that she

was one of the ringleaders in the Union and that she was

trying to break him cr that they were trying to break him.

On September 23, after Becquet mailed Respondent

a certified letter requesting reinstatement, Walker phoned

her home. Walker told Becquet that she had placed him

in an awkward position and that he had to take her back

to work. Walker told her that she could come in cn the

second shift as a trim press operator and that she was

to mind her own knitting. Walker also told Becquet that

her seniority would start the following day when she re-

ported to work—September 24.

Mr. Walker admitted telling Ms. Becquet that he did

not want to take her back if he didn’t have to. Walker

also admitted that he told Ms. Becquet that he did want

to take her back because she was involved in the incident

regarding the sign which listed the names of those people

who had crossed the picket line and returned to work.

I find Ms. Becquet to be a straightforward witness.

In view of her testimony, and Mr. Walker’s admission,

I shall credit her testimony in full. I find Walker’s

statements to Ms. Becquet constitute threats to not rein-

state employees because of the employees’ union activities.

I also find Mr. Walker’s comment to Ms. Becquet that

she was to mind her own knitting when she returned

to work constitutes a violation of Section 8(a) (1).

Mr. Walker testified that the comment regarding Ms.

Becquet minding her own knitting was intended as a warn-

A22

ing to her not to get involved in other peoples’ business

and had no reference to union activity. However, I note

that that comment was made in a context which would

tend to give the impression to any reasonable person that

Mr. Walker was referring to Ms. Becquet’s union activities.

Mr. Walker had on three occasions informed Ms. Becquet

that he was unhappy with her because of her activities

on the picket line and because of her other activities on

behalf of the Union. Nothing was said in any of those

conversations about Ms. Becquet interfering with other

peoples’ business. Therefore, I find that that activity also

constitutes an 8(a) (1) violation.

(ii) Threat to bust the Union:

Wendell Pigg testified that while he was on strike,

some two weeks after the strike began, he came in the

plant to pick up his check. As he was picking up his

check, he had a conversation with President Walker.

Walker told Pigg that he would like for him to come

back to work, that Pigg had done a good job in the past

and that Walker was satisfied with his work. Pigg replied

that he wasn’t planning on coming back until things were

settled. Walker then told Pigg that “he would—he was—

he had like to, or something to that nature, get rid of

the Union—let me think and some of the people in the

Union. He said that if he did get rid of it he would

like to run the company the way he had seen fit, or

the way he would like to, and if the people that was

working there wasn’t satisfied that we could get a petition

to get another Union and if we would like to. He said

he would like to run it for at least a year.”

When Robert Walker was questioned regarding Pigg’s

testimony, he testified that he didn’t recall making any

specific statement to Pigg to the effect that he was trying

to bust up the Union. Mr. Walker testified that he would

A23

not have meant to put something in that kind of context.

Then Walker went on to say, “Of course, I would say

that I sat out as best I could once the strike started—

we did want to win.”

In view of Mr. Walker’s testimony in this regard,

I shall credit the testimony of Wendell Pigg, whom I

found to be a straightforward, candid witness, I find

that Walker’s comments to Pigg constituted violations of

Section 8(a) (1) of the Act.

(iii) Promised higher wages:

Stanley Galbraith testified about a conversation with

Mr. Walker at the plant which, in his affidavit, he recalled

as occurring on September 7. Galbraith testified that he

went in to pick up his check and Mr. Walker told him

that he would like for him to come back to work. Walker

stated that they were going to make some changes and

streamline the place of business, and that if Galbraith

came back, they would give him a merit raise plus what

was offered and that would bring him up to $4 an hour.

Galbraith testified that Walker told him the employees

under 45 days would be dismissed and there would be

some other people replaced. Galbraith testified that he

was making $3.45 an hour when the strike started.

I find Mr. Galbraith to be a straightforward witness

and I credit his testimony in this regard. I find that

Mr. Walker’s comments to him constitute a violation of

Section 8(a) (1) by offering higher wages as an inducement

to abandon the strike.

(iv) It was in no hurry to negotiate and

close the plant:

Ricky James testified that while he was on strike,

he went back to the Company and talked to Mr. Walker

A24

around the first week of October. James testified that

Mr. Walker asked if he and Jimmy Skinner (who was

also present) knew anything about the barn burning and

the tire slashing. According to James, Mr. Walker told

them that he was not in a great hurry to start back

negotiating because the economy was slow and he already

had enough people back to run the production that he

needed to run. James testified that he believed that

Walker said that if he had to hire everybody in the

Union back, he was in no hurry to start back the negotia-

tions. Walker told Skinner that he could come back the

next day, but as to James, Walker said there were some

circumstances that made it look like James did have a

lot to do with harassment, the barn burning, the tire slash-

ing and the harassment out there on the picket line. James

testified that later during the conversation Mr. Walker

said that ever since Gary McClendon came in as union

president, he had tried to run the Company and Walker

said that he was not going to let McClendon run his

Company; if he had to let him, he would shut the door.

Robert Wells testified that while he was working at

the plant, about two or three weeks before the October

19 election, he attended a meeting conducted by President

Walker. Wells testified that Walker told them that if

the Union were voted back in before negotiations could

resume, there would have to be something done about

the tire slashing, the molten metal spilled on the floor

and the barn burning.

I find both James and Wells to be straightforward

witnesses and I credit their testimony. I find Mr. Walker's

comments regarding negotiations if he had to rehire em-

ployees from the Union and his threat to shut down the

plant because of interference from the Union’s president

constitute a Section 8(a) (1) violation as alleged by General

Counsel.

A25

(v) Lost seniority:

When Cathy Becquet returned to work, she was told

by President Walker that her seniority would start on

the day of her return, September 24, 1979. As indicated

below, I credit the testimony of Ms. Becquet in this regard.

Respondent offered no explanation as to why a striking

employee should be penalized by loss of seniority upon

her return to work during the strike. Under the circum-

stances, I find in agreement with General Counsel that

Mr. Walker’s comments to Cathy Becquet constitute viola-

tion of Section 8 (a) (1) of the Act.

(vi) Employees could not return to work

until after the election:

David Shearin testified that during the strike he went

into the plant toward the end of September. Shearin

testified that while he was there, Mr. Walker told him

that Respondent would be hiring again after the election.

Michael Brewer testified that he received a notice

from the Company indicating that he had quit to return

to school. Brewer went into the plant and talked to Mr.

Walker. Brewer told Walker that he had not quit to

return to school. Walker told him not to worry about

it, that it was a form of bookkeeping. Walker said that

he did not have any work for Brewer at that time, but

that he would contact Brewer if he had work on a part-

time basis. Brewer testified that a few days before that

conversation Walker told him that he didn’t have any

work, but that Brewer was to call him after the election.

Brewer testified that he attempted to vote in the October

19 election but that his vote was challenged by Respondent.

Dewey Rowe testified that he talked to Mr. Walker

at Walker’s home about two weeks before the election

concerning Rowe’s returning to work. Rowe testified that

A26

he asked Walker for his job back. Walker told him that

after the 19th’® he could have his job back. According

to Rowe, Walker went on to tell him that the ones who

stirred up trouble on the line, he wasn’t planning on taking

them back.

The above comments by Mr. Walker clearly give the

impression to employees that employment was being with-

held pending the October 19 decertification election. Such

an impression was corroborated by Respondent’s challenge

to the ballot of Michael Brewer. By those comments,

Respondent was holding out to strikers that either their

future employment was conditioned upon the outcome of

the election or that employment was being withheld until

following the election, in order to permit Respondent to

limit the number of employees eligible to vote in that

election. Therefore, I find that Respondent’s comments

tended to coerce employees in the exercise of Section

7 rights and are therefore violative of Section 8(a) (1)

of the Act.

(vii) Removing picket signs:

Paul Rowe testified that he was manning the picket

line on April 15, 1980. Rowe testified that he had left

the picket line and returned to see that the picket signs

were in order. As Rowe drove up to the line, he saw

Robert Walker with one picket sign under his arm and

pulling up the second picket sign. When Walker pulled

the sign up, he looked and saw Rowe. Walker walked

over with the picket signs and threw them in the back

of Rowe’s truck. Rowe got out and asked Mr. Walker

if he was going to put the picket signs back. Walker

walked over and pulled up a third sign and threw it

into Rowe’s truck. Rowe then said, “I guess you know

10. The election was held on October 19, 1979.

A27

you are going to put my signs back.” Walker replied,

“Paul, if you want your damn signs put up, you put them

up.”

Rowe also testified as to an incident he recalled oc-

curring on April 25, 1980. Rowe testified he had left

the picket line, but he circled the block and came back.

When he drove up, he observed John Walker grabbing

the picket signs and running into the plant with the signs.

Robert Walker admitted that he had pulled up the

picket signs on the occasion recalled by Paul Rowe.

Walker testified that he removed picket signs in order

to let some boys who were mowing the right-of-way area,

where the picket signs were staked, complete their mowing.

According to Walker’s testimony, he told Rowe that

you're lucky I don’t take them up and tear them up every

night.“ Walker admitted that he threw the signs in Paul

Rowe’s truck and did not replace them where they [were]

(sic) originally staked on the right-of-way property with

(sic) joined property owned by Respondent.

John Walker did not testify.

I find the evidence supports General Counsel’s allega-

tions regarding both Robert Walker and John Walker re-

moving picket signs. I find that that activity on the part

of Respondent tended to interfere with employees’ rights

and is therefore violative of Section 8(a) (1) of the Act.

(viii) Surveillance:

Employees Paul Rowe and Karen Wells testified that

they observed Robert Walker drive by the union hall on

several occasions on Sunday afternoon when union meet-

ings were being conducted around 4 p.m. Wells testified

that she attended most of the union meetings and that on

practically every occasion she has seen Walker drive by

around the time the meeting was being conducted. Wells

A28

testified that on one occasion she observed Walker drive

past the hall on three different occasions during the same

union meeting.

Robert Walker admitted that he has driven by the

union hall on Sundays and has observed employees there

for, what he believed to be, union meetings. Walker was

asked what reasons he had for driving by the meetings

and he testified that it just happened that his son lives down

Route 2 and that the street passing the union hall is a

“pretty good ways for me to go if I want to go out there

and see (my son).” Walker admitted that he knew when

the union meetings were held. Walker offered no explana-

tion as to why it was necessary to drive by the union meet-

ing on three occasions on the same Sunday during a union

meeting.

In determining this particular issue, I credit the tes-

timony of Karen Wells and Paul Rowe, both of whom I

found to be straightforward witnesses. I find Robert

Walker’s testimony does not adequately explain, or sup-

port, his basis for driving past the union hall during

union meetings on such numerous occasions. I find that

his activities in that regard tend to interfere with em-

ployees’ Section 7 rights and constitute violation of Sec-

tion 8(a) (1) of the Act.

2. Allegations regarding Kenny Atkisson:

(i) Informed employees they would not be

allowed to return to work until after

the election:

Alfred W. Jett testified that while he was on strike

around October 10, 1979, he talked to Kenny Atkisson about

returning to work. Jett testified that Atkisson told him

that everything was slack and that everybody would be

back to work as of the 19th of October. Atkisson was

A29

not called to testify. Therefore, I credit the testimony

of Mr. Jett.

[In] (sic) view of my findings above regarding the

similar comments made by Robert H. Walker, I find that

Mr. Atkisson’s comments constitute a violation of Section

8(a)(1) of the Act.

3. Allegations regarding Joe Wakham:

(i) No more contracts:

Herman Sparks testified that he was out on the picket

line during September when Supervisor Joe Wakham came

out to the picket line. Wakham asked Sparks to help

him pick up “nails or tacks or whatever.” Wakham asked

Sparks, “Why don’t you boys come back to work?” Sparks

replied that they couldn’t come back until they had a

contract. Sparks testified that Wakham told them, “You

may as well come back, there won’t be any more con-

tracts.” Sparks testified that he told Wakham that he

felt they should get one. Wakham again responded that

“there won’t be” and then he went into the plant.

Wakham did not testify. Therefore, I credit the tes-

timony of Sparks. I find that Wakham’s comments to

him constitute a violation of Section 8(a)(1) of the Act.

4. Allegations regarding Buford Agent:

Herman Sparks testified that he returned to work

around September 28, 1979. On the day Sparks returned

to work his assistant foreman on the second shift, Buford

Agent, talked to him at his machine. Sparks testified

that Agent told him that after the Union got out, they

were going to have a good place to work. Agent did not

testify. Therefore, I credit the testimony of Sparks. I

A30

find that Agent’s comments to Sparks constitute violation

of Section 8 (a) (1) of the Act.

(b) Section 8 (a) (3) allegations: u-

1. The probationary employees:

On September 4, 1979, Respondent, through Robert

Walker, mailed the following letter to all its employees

who had not completed their probationary period and

who had not returned to work since the Union’s August

18 strike:

September 4, 1979

TO: All Walker Die Casting Employees who have not

completed their probationary period and who

have not returned to work since the union’s

strike against the Company began on August 18,

1979:

Due to the present general economic conditions, the

Company is cutting the number of people on the work-

force. Therefore, effective September 5, 1979, the

Company is terminating the employment of all mem-

bers of the workforce who have not completed their

probationary periods and who have not returned to

work since the strike began.

10a. Although the following incidents are alleged as both

Sections 8(a)(3) and 8(a)(1) violations, the primary basis upon

which General Counsel rests his claim of motivation as to most

of the alleged discriminatees is the fact that those alleged dis-

criminatees did not report to work during the strike. Therefore,

technically an argument could be advanced that those matters

involved only alleged Section 8(a)(1) violations. However, the

strike was called by the Union. Therefore, I have extended my

findings to include finding both Section 8(a)(3) as well as Sec-

tion 8(a)(1) violations on the determination that by honoring

pee = sponsored strike, the employees were engaged in union

A31

If you are among these people terminated, you may

apply for re-employment as permanent replacements

for other employees who have not returned to work.

Sincerely yours,

Walker Die Casting, Inc.

/s/ Robert H. Walker

Robert H. Walker

President

Encl. - Separation Notice

General Counsel alleges that by terminating its pro-

bationary employees on September 4, 1979, Respondent

violated Section 8(a) (3) of the Act.

It appears from the September letter itself that Re-

spondent is directing its action to all of those employees

that observed the Union’s strike. That assumption is

borne out by documents submitted into evidence by Re-

spondent which indicate that all the probationary em-

ployees except employee Charlie R. Williams was ter-

minated through Respondent’s September 4 letter.!“ The

document indicates that Charlie R. Williams returned to

work on August 30, 1979. Williams was not terminated.

The record reflects that even though Respondent ter-

minated the probationary employees by its September 4

letter, there was work available in the plant. In fact,

several employees, including Wendell Pigg, Karen Wells

and Robert Wells, testified that during that period of

time they were being asked by representatives of Re-

spondent, including Robert Walker, to return to work.

Moreover, Respondent offered no evidence demonstrating

11. Uncontested evidence demonstrates that Respondent

terminated probationary employees Dickie Adkins, Lacon Cross-

land, Sam Cook, Michael Cross, Robert Hayes, Michael Holder

Jones, J Prince, Larry Peters, E. W. Woodward and

David Wentzell on tember 5, 1979.

A32

that it had a sound business reason for terminating the

probationary employees on September 4.

Therefore, I find that Respondent violated Section

8(a)(1) and (3) of the Act by terminating all its proba-

tionary employees who had not returned to work prior to

September 4, 1979.”

2. Cathy Becquet:

Cathy Becquet testified that she went out on strike

with the other employees on August 18. At the time of

the strike she was an alternate on the negotiation com-

mittee and was shop steward in the zinc department.

Becquet testified that she attended all the negotiating ses-

sions with Respondent.

On September 12, Ms. Becquet called plant superin-

tendent Atkisson and asked if she could return to work.

Atkisson responded that they didn’t need her then and

that she should check back with him on Friday. Becquet

then immediately called Mr. Robert Walker“ and told him

that she wanted to return to work. Walker told her that he

had talked with Atkisson and that he did not want to

take her back. Walker told her that he “didn’t like that

business with the scab list, and that he was going to

check with his lawyer to see if he had to take Becquet

back.” Walker also tuld Becquet that he didn’t want

any union officer or committeeman and a few other

people back in the plant.“

12. See Freezer Food, Inc., 249 NLRB No. 45; N. L. R. B. v.

Great Dane Trailers, Inc., 388 U.S. 26 (1967); National Seal, Divi-

sion of Federal-Mogul-Bowen Bearings, Inc., 141 NLRB 661 (1963),

enforcement denied 336 F.2d 781, 57 LRRM 2452 (C. A. 9, 1964).

13. Several of Becquet’s conversations with Walker were

also considered, supra, under the section dealing with Section

8(a) (1) allegations.

14. Becquet and several other emp on the picket line

a board which listed all the emp. that had crossed

the picket line and returned to work.

A33

Pursuant to Mr. Walker’s instructions, Becquet called

back on Friday, September 14, and talked to Walker.

Walker told her that he was not taking her back. Becquet

asked if she could get a discharge slip so that she could

draw unemployment. Walker responded that he didn’t

want her to draw unemployment. Walker then told

Becquet that she had quit when she went out on strike.

Walker said that he was not going to take any of the union

officers and committeemen back again. He said that

Becquet was one of the ringleaders in the Union and

that she was trying to break him, or that they were

trying to break him.

Subsequently, Becquet sent Respondent a certified let-

ter stating that she was willing to return to work uncondi-

tionally.

On September 23, Mr. Walker called Becquet at her

home and told her that she had put him in an awkward

position and that he had to take her back to work. Walker

told her that she could come in at 3:30 on September

24—the second shift. Walker told her that she would

be getting a 32¢ per hour increase plus 20¢ shift preference

and that seniority would start on September 24. Becquet

asked Walker how long she would be on the second shift.“

Walker told her maybe after the election in October; if

there was an opening on days, they would talk about

switching her to the first shift. Becquet testified that

she asked him why she was on the second shift, why

she couldn’t work days because she had five children and

15. At the time of the strike Becquet was assigned to the

first shift. Although General Counsel alleged that Becquet was

assigned more onerous conditions of employment on September

24, I find that General Counsel proved that allegation only as

to Becquet’s employment without benefit of her prior seniority.

Even though Becquet was assigned to the second shift, General

Counsel did not prove the availability of work on the first shift

for Becquet on September 24.

A34

it was really difficult for her to work second shift. Bec-

quet told Walker that she had been on the day shift for

three years, Walker told her that he had no openings

and that he was offering her the second shift if she wanted

that.

Becquet testified that when she received her first

check, she received the additional 32¢ per hour plus the

20¢ shift differential plus an additional 10¢ for being pres-

ent each work day.

On November 2, Becquet was told that her father

had suffered a stroke while in California. On November

3, Becquet requested her vacation and a leave of absence

beginning November 7 for the purpose of going to her

father in California. Becquet was told by Plant Superin-

tendent Atkisson that he would have to check with Mr.

Walker.

On Monday, November 5, and Tuesday, November

6, Becquet attempted to contact Atkisson regarding her

request for time off. However, on each of these occasions

Atkisson was not in the plant. On November 6, Becquet

checked with Assistant Plant Superintendent Lynn Chew-

ning. Becquet talked with Chewning twice on that day.

On the second occasion, according to Becquet’s testimony,

Chewning told her that she could go ahead and go, that

he would work it out when she got back. As Becquet

was leaving, she reminded her foreman, Wesley Lang, that

she wouldn’t be there the next day. Lang responded that

he had heard that she was going on a leave of absence.

Lang said that he hoped Becquet’s father would be all

right.

16. Testimony of Becquet concerning her conversation with

Atkisson and Lang stands unrebutted. Neither Atkisson nor

Lang testified.

A35

Becquet returned home from California on Thanksgiv-

ing evening. She discovered that attached to her paycheck,

which her husband had picked up at the plant on November

16, was a dismissal slip.

Becquet went to the plant the following Tuesday, No-

vember 27, and talked with Plant Superintendent Atkisson.

Becquet asked Atkisson why she had been fired. Atkisson

told her “that there was a different work situation in

the plant at that time; when I left they had plenty of

work, and when I came back they didn’t have any work,

they had lost a lot of orders and contracts, and that they

were contemplating a layoff.” Becquet then asked Atkis-

son why she hadn’t been laid off and didn’t her seniority

count. Atkisson responded that that was the way Mr.

Walker wanted it. Becquet told Atkisson that she had

checked with Lynn Chewning because Atkisson was not

there and that Chewning had told her to go ahead and

go. Atkisson told her that she should talk to Mr. Walker

about that. Atkisson then commented that she had been

a good worker and that he would give her a good reference.

Becquet then went to see Mr. Walker. She asked

Walker why she had been fired. Walker told her that

she did not get permission to leave, that he had checked

with everyone and that no one had given her permission

to leave. Becquet then asked if he had checked with

Lynn Chewning. Walker told her no, but that he would

talk with Chewning. He then asked Becquet to leave

the office.

Becquet was called back in the office a few minutes

later. Becquet asked what Mr. Chewning had said.

Walker said that Chewning said that he did not give Bec-

quet permission to go. Walker told her that it would

have to stand the way it was. Becquet then asked Walker

about going back to work or getting a layoff slip. Walker

A36

told her that he did not want her drawing unemployment

on him. Walker said something about her husband not

being able to work in this area and asked why didn’t

she move to California.

In considering the merits of the allegations that Bec-

quet was discharged in violation of Section 8(a) (3), I

credit her testimony. In determining to credit Ms. Bec-

quet, I was impressed with her demeanor. As to conflicts

between her testimony and that of Respondent’s witnesses,

I note that Plant Superintendent Atkisson did not testify.

Therefore, her testimony regarding conversations with At-

kisson stands unrebutted. In regard to conflicts with Ms.

Becquet and President Robert Walker, I find Walker’s

testimony in that regard to be incredible. J find par-

ticularly incredible Walker’s testimony as to the reasons

why Becquet was discharged around November 16. In

that regard, Mr. Walker testified that Plant Superintendent

Atkisson told him that Ms. Becquet said she wanted a

leave of absence to go to California to be with her father

who was ill. Mr. Walker testified that he and Mr. Atkisson

discussed the matter and decided to grant Ms. Becquet

the leave of absence. However, according to Walker, Bec-

quet was discharged because she left on her trip for Cali-

fornia without contacting Mr. Atkisson. Walker went on

to testify that they felt that if they permitted Becquet

to leave without checking back with Atkisson, they would

have set a precedence, Mr. Walker’s version of the events

does not explain why Respondent could not get word to

Becquet on either Monday or Tuesday, following her re-

quest for a leave of absence, that that leave of absence

had been granted. Under the evidence available to me,

it is uncontested that Atkisson was not in the plant while

Becquet was present on either Monday or Tuesday. Ob-

viously, under those circumstances, Atkisson was well

aware that it was impossible for Becquet to personally

A37

contact him. No explanation was offered as why Atkisson,

under the circumstances, did not simply leave word for

Ms. Becquet that her leave had been approved. Therefore,

I am convinced that Walker’s testimony that they dis-

charged Becquet because she failed to check back with

Atkisson is not worthy of belief.

As to the conflicts between Ms. Becquet’s testimony

and the testimony of Assistant Plant Superintendent Lynn

Chewning, Mr. Chewning admitted that Ms. Becquet asked

him on several occasions, including the day before she

left for California, whether her request for a leave of

absence had been approved. Mr. Chewning testified that

in circumstances like that regarding Ms. Becquet, he would

“probably state that it would be OK with mie, but she

would have to check with either Mr. Walker, or Kenny

Atkisson.” He was asked if that was what he said to

Ms. Becquet and Chewning responded, “I presume it was.“

On cross-examination, Chewning testified that he could

not recall whether Mr. Atkisson was present in the plant

on those occasions when Ms. Becquet asked Chewning

if her leave of absence had been approved. Mr. Chewning

testified that he did not have authority to grant a leave

of absence, but he also testified that during Atkisson’s

absence from the plant he took over Mr. Atkisson’s duties

and responsibilities. Therefore, as in the case of Mr.

Walker, I find Mr. Chewning’s testimony incredible. If

Plant Superintendent Atkisson was not present, and the

unrebutted testimony is to the effect that he was absent,

the normal thing for Mr. Chewning to have done would

have been to go to whatever sources he needed to contact,

either Mr. Walker or Mr. Atkisson, and secure an answer

to Ms. Becquet’s question about approval of her leave.

No explanation was offered as to why this was not done.

Additionally, I note that there is a conflict between the

testimony of Mr. Chewning and Mr. Walker. According

A38

to the testimony of Mr. Chewning, Cathy Becquet’s request

for a leave of absence was not approved. However, Mr.

Walker testified that the matter had been approved

Therefore, I find that I cannot credit the testimony

of either Mr. Walker or Mr. Chewning to the extent that

their testimony conflicts with that of Ms. Becquet.

In determining the allegation regarding Cathy Bec-

quet, I notice that when she was reinstated, pursuant to

her request, on September 24, she was informed that her

seniority would only run from that day—September 24,

1979. Respondent offered no business justification for

treating Ms. Becquet as a new employee regarding senior-

ity. Under the circumstances, I find that Ms. Becquet

was denied proper reinstatement’? even though she was

placed back to work on September 24, due to her participa-

tion in the strike wuich began on August 18. Therefore

since Ms. Berquet was never properly reinstated, she was

entitled to full remedies as a Section 8(a) (3) discriminatee

from September 12, 1979.

Additionally, I find that Ms. Becquet’s discharge on

or about November 16, 1979, was due to her union activities.

The circumstances convinced me that Respondent’s as-

serted bases for her discharge was pretextual. In that

regard, I notice that representatives of Respondent gave

conflicting opinions as to the basis of Ms. Becquet’s dis-

charge.“ Plant Superintendent Atkisson informed Ms.

Becquet that she was discharged because during her ab-

sence there had been a reduction in available work and

she was no longer needed. However, President Walker

17. In view of my finding below that the strike was con-

verted to an unfair labor practice strike on August 27, Becquet

was entitled to immediate reinstatement from September 12, the

date of her unconditional offer. Becquet should have been

reinstated without loss of seniority. (N.L.R.B. v. Mackay Radio

& Telegraph Co., 304 U.S. 333, 2 LRRM 610 (1938).)

18. Clock Restaurant No, Seventeen, 212 NLRB 423.

A39

testified that Ms. Becquet was discharged because she

failed to recheck with Plant Superintendent Atkisson in

order to determine whether her request for a leave of

absence had been granted. Moreover, under the circum-

stances set out in the testimony of Mr. Walker, I find

the evidence convincing that Mr. Walker’s testimony did

not reveal the true reason why Ms. Becquet was discharged.

I am unconvinced that no valuable employee, like Ms.

Becquet, would be discharged for failing to recheck with

the Plant Superintendent regarding a request for a leave

of absence under the circumstances present in her case.

The record stands uncontested that Mr. Atkisson was not

present during the last two periods Ms. Becquet worked

prior to leaving for California. It was apparent to Atkisson

and Walker that Ms. Becquet had a real need to leave

during the time requested. It was also apparent that

Atkisson could have easily left word with Mr. Chewning

or any other official that Ms. Becquet’s leave had been

approved.

In view of my findings that conflicting versions were

given as the basis for Ms. Becquet’s discharge, and my

findings [that] (sic) the bases asserted were pretextual,

I am convinced, and find, that the true reason why Ms.

Becquet was discharged was her union activities.

3. The refusal to reinstate:

Complaint alleges that certain employees listed below

on Appendix “A” made unconditional offers to return to

work, but that Respondent has failed and refused to rein-

state those employees.’®

19. By amendment near the close of the hearing, General

Counsel expanded his allegation in paragraph 16 of the Amended

Consolidated Complaint to include all employees listed on General

Counsel Exhibit 11 (a compilation of unconditional offers re-

ceived by Respondent). tionally, that amendment, Gen-

eral Counsel alleged that the Union made an unconditional offer

to return all strikers by letter dated February 11, 1980.

A40

The evidence supports General Counsel’s allegation as

to specific employees mentioned in G. C. Exh. 11 plus em-

ployees Cathy Becquet and Michael Wayne Brewer.” Ad-

ditionally, all striking employees were entitled to rein-

statement upon the unconditional offer made on their

behalf by the Union on February 11, 1980.

In view of my findings below that the strike was

converted to an unfair labor practice strike on August 27,

1979, each striking employee is entitled to immediate re-

instatement upon an unconditional offer to return to work.

The evidence indicates that many of the employees who

unconditionally offered to return have not been reinstated.

In that regard, striking employees are entitled to prefer-

ence in employment over persons employed on or after the

date the strike was converted to an unfair labor practice

strike.“

Therefore, I find that those employees listed on Ap-

pendix “A” who were denied proper or timely reinstate-

ment were deprived of their rights in that regard in vio-

lation of Section 8 (a) (3).”

20. As to Becquet and Brewer, see footnotes on Appendix

“A”, below.

21. Of course, each striking employee is entitled to rein-

statement on the basis of the earliest unconditional offer made

by him or on his .

2. Mastro Plastics Corp., et al. v. N. L. R. B., 350 U.S, 270,

37 LRRM 2587 (1956).

23. Respondent discharged a number of strikin ng employees

on the assertion that those employees were, according to Re-

spondent’s information, employed by another employer during

the strike. Although not specifically allleged as violative of

Section 8(a)(3), that issue bears upon the allegation of refusal

to reinstate. In order to justify the discharge of striking em-

2 the Employer has the burden of establishing legitimate

and substantial business justification for its action. [U Inless

the employer who refuses to reinstate strikers can show that

his action was due to ‘legitimate and substantial business justifi-

cation,’ he is guilty of an unfair labor practice. N. L. R. B. v.

(Continued on following page)

A4l

(c) Section 8(a) (2) allegations:

Wendell Pigg testified that in a meeting before the

October 19 election Robert Walker told the employees at

that meeting that he would like to try running the plant

with a committee to take care of the problems they would

have and that he would like to try that for one year and

then if the people were not satisfied, that he would agree

to a petition for another union. Pigg also testified that

Walker said that the committee would be made up of some

employees there inside the plant and that any of the prob-

lems brought up would be brought up before them (the

committee) and that they would take care of it.

Pigg testified that a committee was established some

four to six weeks prior to June 16, 1980—the date he tes-

tified at the hearing herein. Pigg testified that one of the

employees on the committee was Johnny Flippen, an em-

ployee that works with Pigg.

On December 19, 1979, Respondent posted a notice to

employees in its plant which stated, in part:

12-19-79

TO: OUR EMPLOYEES

FROM: R. H. WALKER

Immediately upon our return to work on January 2,

1980, we will begin discussing how to set up represen-

Footnote continued—

Great Dane Trailers, 388 U.S. 26, 34 (1967). The burden of

proving justification is on the employer.” N. L. R. B. v. Fleetwood

Trailer Co., Inc., 389 U.S. 375, 378 (1967). See also Bromine

Division, Drug Research, 233 NLRB 253, 261 (1977). No Pro-

bative evidence was offered in justification of Respondent's dis-

charge of those employees. Therefore, I find that those persons

retain their status as employees and, if they were included as

strikers who made, or upon whose behalf the Union made, an

unconditional offer for them to return to work, are also entitled

to immediate and full reinstatement.

A42

tation for our employees and procedures to handle

grievances. You will recall a notice posted on the

bulletin board on October 11, in which we said “it

will be up to our employees as to how representation

and grievance procedures may be set up and handled

after the election.”

Please be thinking about how you would like to see

this done. The Company feels if we have the input

of everyone we can work out an organization which

will be efficient and fair for all of us.

R. H. Walker

On May 9, 1980, Respondent posted another notice to

employees which stated as follows:

HOTLINE!

May 9, 1980

TO: OUR EMPLOYEES

FROM: R. H. WALKER

We are now setting up a temporary grievance pro-

cedure which we plan to use until our lawyer advises

we can set up a permanent, more formal, grievance

procedure without risk of committing an unfair labor

practice. The following employees have agreed to

serve as the temporary grievance committee:

Johnny Flippen Walter George

Steve Wakham Allen Goodrich

Vivian Whitworth

This committee has elected Johnny Flippen, Chairman;

Walter George, Vice-Chairman; and Vivian Whit-

worth, Secretary. Kenneth Atkisson, Lynn Chewning,

and R. H. Walker are working with this committee to

set up the procedure which we will use to process

grievances.

A43

We will continue to operate, as we promised, accord-

ing to the rules and procedures of the old contract, as

modified by the Company’s last offer to our employees.

All members of the grievance committee have copies

of this and we have copies in the office for anyone

desiring one. As soon as we have the temporary

grievance procedure worked out, we will prepare copies

of it, as well as our rules and other procedures, and

distribute one copy to each employee.

/s/ Robert H. Walker

Then, on June 6, 1980, Respondent distributed the fol-

lowing notice to employees:

June 6, 1980

TO OUR EMPLOYEES

With the checks which you receive today, we are en-

closing a copy of our Temporary Grievance Procedure.

Your Company wants to know your grievances, prob-

lems or complaints so we may take action to rectify

them or prevent them from happening again. It is

the feeling of your Company that the Temporary

Grievance Procedure is an additional means which

will help to make it easier for you to let us know

what your problems, complaints and grievances are

or may be. We hope very much that you will always

let us know what problems exist for we cannot vorrect

a problem we are not aware of. You can be sure that

we will do our best to correct and rectify problems,

grievances and complaints and continue to strive to

make Walker Die Casting the best place to work which

can be found.

/s/ Robert H. Walker

Robert H. Walker, President

A44

Walker testified that the above June 6, 1980 notice was

distributed to employees with their paychecks.

Robert Walker testified that the employee members

of the grievance committee were asked to serve on that

committee by him. Walker testified that the committee

has held a number of meetings and that in addition to the

members of the committee, Assistant Plant Superintendent

Lynn Chewning and he (Robert Walker) were present at

the meetings. Minutes of the meetings were typed by Re-

spondent’s receptionist. Walker testified that members of

the committee were paid for the time they spent in com-

mittee meetings.

Walker admitted that employee complaints were

brought up during this meeting and matters relating to

employees’ working conditions were discussed. Walker

testified that some of those problems relating to employees’

working conditions were remedied as a result of steps di-

rected by supervision, following discussing of those prob-

lems during committee meetings. During one of the com-

mittee meetings, matters relating to employees’ vacations

were discussed and a procedure was established whereby

an employee could take extra days of vacation whenever

a week’s notice was given.

I find that, in accord with the above evidence and the

record as a whole, Respondent did recognize and bargain

with the committee of employees established by it. The

committee was established around May 9, 1980, and the

evidence indicates that Respondent has continued to rec-

ognize and negotiate with the committee since that time.

I find in agreement with General Counsel that Respon-

dent’s actions in that regard constitute a violation of Sec-

A45

tion 8 (a) (2) of the Act.“ In view of evidence that there

were no negotiations between the Union and Respondent

after September 11, 1979, and my finding below that Re-

spondent was obligated to continue to recognize the Union,

I find in agreement with General Counsel’s complaint al-

legation that Respondent also violated Section 8(a) (5)

by unilaterally implementing the Employee Committee.

(d) Section 8(a) (5) allegations:

(i) Withdrawing its last offer:

By memo dated August 20, which Robert Walker

posted on the bulletin board and mailed to all striking

employees, Respondent notified employees of the details

of its last contractual offer, suggested that the employees

should inform the negotiaitng committee if they felt Re-

spondent’s offer was reasonable, and offered to pay any

employee that reported to work the new wage rates pro-

posed by the Company.

On August 27, 1979, Respondent sent the following

letter:

August 27, 1979

Mr. Gary McClendon, President

Local No. 259, Stove, Furnace and

Allied Appliance Workers’ Union

RFD #2

Cornersville, TN 37047

Dear Mr. McClendon:

The final proposal which was made to you and the

members of your negotiating committee on August

24. N. L. R. B. v. Cabot Carbon Co., 360 U.S. 203, 44 LRRM

2204 (1959); The Carpenter Steel Co., 76 NLRB 670 (1948); Wal-

green Magnetics, 132 NLRB 1613 (1961); Thompson Ramo Wool-

dridge, Inc., 132 NLRB 993 (1961); Oil Transport Co., 182 NLRB

1016 (1970); Sound Technology Research, 221 NLRB 496 (1975),

enforced 81 LC N 13013 (C. A. 9, 1977).

A46

17, 1979, was contingent on acceptance of that offer

without a work stoppage.

Since Local 259 elected to reject that offer and calls

a strike on August 18, 1979, the Company’s last offer

is hereby withdrawn.

Yours truly,

Walker Die Casting, Inc.

/s/ Robert H. Walker

Robert H. Walker

President

RHW: ec

ce: Ray Sullivan

General Counsel alleged by withdrawing its last offer

on August 20, Respondent violated Section 8(a)(1) and

(5). I agree with General Counsel. While Respondent’s

obligations under Section 8(a)(5) are limited, both the

Courts and the Board have continuously held that em-

ployers have an obligation to negotiate in good faith. The

parties negotiated in progressive fashion throughout Au-

gust. Although the employees decided to strike when the

past contract expired on August 18, that act did not release

Respondent from its obligation to continue to bargain in

good faith. However, Respondent, by the above-quoted

letter, effectively terminated negotiations.

The Board in the case of Randle-Eastern Ambulance

Service“ found that an employer violated Section 8 (a) (5)

by withdrawing all its contract proposals. In Randle-

Eastern, the employer withdrew its proposals during a ne-

gotiation session in which it, the employer, offered to pre-

sent a new proposal which would include an entire package.

230 NLRB 542 (1977), enforcement denied, in 584

F.2d 730 (C. A. 5). 8 ‘ Masini eck

A47

Here, Respondent made no such offer. Respondent's letter

offered nothing more than removal of its entire negotiation

package—in effect, Respondent rescinded all the progress

achieved during its summer negotiations with the Union.

Moreover, while it rescinded the negotiation progress, Re-

spondent made no offer to negotiate further. The record

shows that as late as June 19, 1980, when this hearing

closed, Respondent had not resumed negotiations with the

Union.

It is true that an RD petition was filed and processed

during the interval between Respondent’s August 27 letter

and June 19. However, that petition which was filed on

September 6, 1979, was dismissed by the Region on Feb-

ruary 7, 1980. Nevertheless, no negotiations have occurred

since that date.

During the interval since February 7, Respondent

formed a labor organization among its employees. (See

Section 2(c), above.)

Under those circumstances, I find the evidence per-

suasive that Respondent, by its August 27 letter to the

Union, engaged in bad faith bargaining in violation of Sec-

tion 8(a) (5).

(ii) Unilateral changes:

General Counsel alleged that Respondent unilaterally

implemented a wage increase in excess of those offered

during negotiations. Undisputed evidence supports that

allegation.

As indicated above in Section 2(a) (1) (iii), I found

that Respondent violated Section 8(a) (1) by offering strik-

ing employees higher wages as an inducement to break

the strike and return to work. President Robert Walker

admitted that he decided to raise the starting pay to a

A48

minimum of $4 an hour after the strike commenced on

August 18, 1979. Walker testified that the increased mini-

mum rate went into effect on September 5, 1979.

There is no dispute regarding General Counsel’s con-

tention that the $4 minimum starting rate was in excess

of what Respondent offered during negotiations. Respon-

dent, in its brief, admits that Respondent’s August 14,

1979 economic proposal proposed a $3.30 per hour minimum

rate. However, Respondent argues that the Union evi-

denced no interest in negotiating a minimum starting rate

and that, in any event, the Union waived any claim of

unilateral minimum rates because Respondent had during

the existence of the bargaining agreement, which expired

in August 1979, regularly employed new employees at

rates above those set forth in the agreement. The contract

provided starting rates ranging from $2.40 to $3 per hour,

but Respondent regularly hired employees from $3.30 to

$3.40 per hour and employed some new die casters at

rates as high as $4 and 4.15 per hour approximately

30 days before the strike. The Union admittedly knew

Respondent hired employees at higher rates.

President Walker, when he admitted that Respondent

decided to pay $4 as a minimum starting rate, testified

that he did so in order to get better employees.

General Counsel also alleged that Respondent unilater-

ally implemented an attendance bonus and unilaterally

made the attendance bonus applicable on a weekly basis,

then changing it to monthly, and back to weekly again.

Respondent points out that it did propose a monthly at-

tendance bonus of 10¢ per hour during negotiations. How-

ever, Respondent does not contest that it did implement

a 10¢ per hour monthly attendance bonus after the strike

which was expanded to include giving company jackets

to employees who earned the attendance bonus in Decem-

A49

ber 1979. In January 1980, Respondent began paying the

bonus on a weekly basis. Neither the awarding of jackets

nor the change from monthly to weekly basis of computing

the attendance bonus was mentioned during negotiations

with the Union.

Both the Board and the Courts have expressed concern

with an employer’s ability to undermine the negotiations

process through unilateral changes. That concern has been

voiced especially in situations involving wage increases

where the increase is contemporaneous with a strike.“

Such unilateral action is a strong indication that the em-

ployer is not bargaining with the required good faith.

I find the circumstances here particularly alarming

in that regard. Upon its employees striking over the par-

ties inability to reach a collective-bargaining agreement

because of disputes involving, among other things, wages,

Respondent, on August 27, withdrew completely its last

proposal. Shortly thereafter, on September 5, Respondent,

without further negotiations or notice to the Union, in-

stituted a minimum wage substantially higher than its

offer to the Union during negotiations.

I find little support for Respondent’s arguments in

defense of its unilateral actions. Although the Unicn had,

during harmonious relations, during existence of the last

agreement, permitted minimum rates in excess of the con-

tract provisions, there is no indication that the Union in-

tended thereby to waive its right to bargain over wages.

In fact, just the opposite occurred. During August the

Union and Respondent negotiated with respect to wages.

Moreover, I place little significance in testimony from

Respondent that the Union showed little interest in nego-

26. See N.L.R.B. v. Fitzgerald Mills Corp., 313 F.2d 260, 52

LRRM 2174 (C.A. 2, 1963); Trinity Valley Iron & Steel, 127

NLRB 417 (1960).

A50

tiating the minimum rates. Obviously, a union is more

concerned from a tactical standpoint during negotiations,

with first reaching agreement on the higher level of wages.

Since the parties had not agreed on those higher levels,

I do not find it surprising that the Union appeared unin-

terested in discussing the minimums, I do not view that

testimony as demonstrating that the Union had no interest

in negotiating minimum rates, especially since the last

contract contained minimum rate provisions. Therefore,

I find that the Union did not waive its bargaining rights

regarding minimum wages.

No evidence was offered which would demonstrate

that the Union ceased to be the exclusive representative

of the unit employees.“ Respondent, by implementing

changes in its minimum rates, changing the attendance

bonus system and awarding company jackets to employees

that earned the attendance bonus, without first notifying

the Union and offering to negotiate those items, engaged

in unilateral acts in violation of Section 8 (a) (5).

(iii) Refusal to bargain since September

1, 1979:

Respondent does not dispute that it notified the Union

on September 11, 1979, that no further negotiations could

be scheduled until the petition in the recently filed decer-

tification case was resolved.”*

The law is clear that the filing of a decertification

petition is not sufficient basis to justify an employer’s

refusal to bargain when, as here, the Respondent’s action

occurred in context with unlawful conduct.” Respon-

27. See Section 2(d) (iii), below.

28. See fn. 3, supra.

29. Autoprod, Inc., 223 NLRB 773 (1976); Lammert In-

dustries, 229 NLRB 895 (1977).

A51

dent’s September 11 termination of negotiations occurred

in a context of numerous Section 8(a)(1) and (5) viola-

tions. As shown above, Respondent violated Section 8 (a)

(1) on various occasions before September 11, and Section

8 (a) (5) on August 16, when it advised its employees to

resign from the Union and cross the picket line. On

August 27, Respondent illegally withdrew its last contract

offer. On September 5, Respondent unilaterally instituted

an illegal increase in its minimum wage rate. In this

regard, I note that President Walker actually suggested

to employees that he would like to get rid of the Union.

(See pp. A23-A24, above.) “Such conduct directly affected

all unit employees and could have reasonably been pre-

dicted to cause employee disaffectiun.” Autoprod, Inc.,

supra.

No negotiations have occurred since Respondent ter-

minated negotiations on September 11. Moreover, its sub-

sequent illegal conduct, especially its recognition of another

labor organization in May 1980, is totally incompatable

with its obligation to negotiate with the Union.

Additionally, no evidence was offered which demon-

strated that when Respondent terminated negotiations, rea-

sonable grounds existed for believing that the Union had

lost its majority status. Autoprod, Inc., supra, at 779.

Therefore, I find that Respondent, by terminating ne-

gotiations on September 11, and thereafter continuing to

refuse to negotiate with the Union, violated Section 8 (a) (5)

of the Act.

(e) Was the strike converted to a ULP strike:

Under the circumstances herein, I find the evidence

proves that the employees’ strike was converted to an

unfair labor practice strike on August 27, 1979, when Re-

spondent withdrew its last contract proposal.

52

Respondent's action on that occasion and subsequently,

as outlined above, seriously impeded the success of the

negotiations and thus prolonged the strike and its settle-

ment (Randle-Eastern Ambulance Service, 230 NLRB 542

(1977)).

Conclusions of Law

1. Respondent, Walker Die Casting, Inc., is an em-

ployer engaged in commerce within the meaning of Section

2(2), (6) and (7) of the Act,

2. Local 259, Stove, Furnace, and Allied Appliance

Workers International Union of North America, AFL-CIO,

and Employee Committee are labor organizations within

the meaning of Section 2(5) of the Act.

3. Respondent, by threatening not to reinstate em-

ployees because of the employees’ union activities; threat-

ening employees that they were to mind their own knitting

when they returned to work because of their union activi-

ties; threatening to get rid of the Union; offering wage in-

creases in order to induce its employees to break the

strike and return to work; telling employees that if it

had to reinstate everybody in the Union, it is in no hurry

to start back to negotiations; threatening to shut the door

of the plant rather than continuing to deal with the union

president; telling its employee that by returning to work

after engaging in the strike, she had lost her seniority

status; informing employees that they would not be con-

sidered for employment until after the decertification elec-

tion; removing its employees’ picket signs; engaging in

surveillance of its employees’ union activities; threatenng

its employees that there would be no more collective-

bargaining agreements with the Union; and telling its em-

ployees that they would have a good place to work once

A53

the Union was defeated, violated Section 8(a)(1) of the

Act.

4. Respondent, by discharging its probationary em-

ployees on or about September 5, 1979; by refusing to

reinstate its employee Cathy Becquet on September 12,

1979, by refusing to reinstate Cathy Becquet on September

24 without loss of seniority privileges, and discharging

Cathy Becquet on November 16 because of her union activ-

ities; and by refusing to reinstate its employees, who were

engaged in an unfair labor practice strike, following uncon-

ditional offers to return to work by or on behalf of those

employees, violated Section 8(a) (3) and (1) of the Act.

5. Respondent, by soliciting and appointing employ-

ees to an employee grievance committee, and recognizing

and bargaining with the Employee Committee since on

or about May 9, 1980, has dominated and interfered with

the formation or administration of a labor organization

in violation of Section 8(a) (2) and (1) of the Act.

6. Respondent, by advising its employees to resign

from the Union; by withdrawing its last contract proposal;

unilaterally changing its minimum wage rates; unilaterally

changing other conditions of employment; unilaterally es-

tablishing an employee grievance committee; and by refus-

ing to negotiate with the Union since September 11, 1979,

violated Section 8(a) (5) and (1) of the Act.

7. The strike among Respondent’s employees which

commenced on August 18, 1979, was converted to an unfair

labor practice strike by Respondent’s unfair labor prac-

tices on August 27, 1979.

8. The aforesaid unfair labor practices are unfair

labor practices affecting commerce within the meaning of

Section 2(6) and (7) of the Act.

A54

The Remedy

Having found that Respondent has engaged in unfair

labor practices in violation of Section 8(a)(1), (2), (3)

and (5) of the Act, and having found that the strike of

Respondent’s employees was converted to an unfair labor

practice strike on August 27, 1979, I shall recommend that

Respondent be ordered to cease and desist therefrom and

to take certain affirmative actions designed to effectuate

the policies of the Act. My recommended Order will re-

quire Respondent to offer employees Cathy Becquet, Dickie

Adkins, Lacon Crossland, Sam Cook, Michael Cross, Robert

Hayes, Michael Holder, Larry Jones, Jimmy Prince, Larry

Peters, E. W. Woodward, David Wentzell, and those em-

ployees named in Appendix A“, reinstatement to their

former jobs or, if those jobs no longer exist, to substantially

equivalent positions, without prejudice to their seniority

or other rights and privileges. I shall further recommend

that Respondent be ordered to make whole the employees

mentioned above for any loss of earnings they may have

suffered as a result of the discrimination against them,“

and that it post appropriate notices. Loss of backpay shall

be computed and interest thereon shall be added in the

manner prescribed in F. W. Woolworth Company, 90 NLRB

289, and Florida Steel Corporation, 231 NLRB 651."

30. As to employees, Adkins, Crossland, Cook, Cross, Hayes,

Holder, Jones, Prince, Peters, Woodward and Wentzell, backpay

should run from the date of their discharge, September 5, 1979.

See Abilities & Goodwill, Inc., 241 NLRB No. 5. Although em-

loyee Cathy Becquet was also discharged, her backpay should

computed from September 12, 1979, when she was first denied

a pursuant to her unconditional offer to return to

31. See, generally, Isis Plumbing & Heating Co., 138 NLRB

716 (1962).

A55

Upon the foregoing findings of fact and conclusions of

law, and the entire record, and pursuant to Section 10(c)

of the Act, I hereby issue the following:**

ORDER

Respondent, Walker Die Casting, Inc., its officers,

agents, successors and assigns shall:

1. Cease and desist from:

(a) Interfering with, restraining and coercing the

employees in the exercise of their rights guaranteed to

them in Section 7 of the Act in violation of Section

8(a)(1) of the Act by threatening not to reinstate em-

ployees because of the employees’ union activities;

threatening employees that they were to mind their own

knitting when they returned to work because of their union

activities; threatening to get rid of the Union; offering

wage increases in order to induce its employees to break

the strike and return to work; telling employees that if

it had to reinstate everybody in the Union, it was in no

hurry to start back to negotiations; threatening to shut

the door of the plant rather than continuing to deal with

the Union President; telling its employee that by return-

ing to work after engaging in the strike, she had lost her

seniority status; informing employees that they would

not be considered for employment until after the decer-

tification election; removing its employees’ picket signs;

engaging in surveillance of its employees’ union activities;

threatening its employees that there would be no more

collective-bargaining agreements with the Union; and tell-

32. In the event no exceptions are filed as provided by Sec-

tion 102.46 of the Rules and Regulations of the National Labor

Relations Board, the fin conclusions and recommended

Order herein shall, as provi in Section 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.

A56

ing its employees that they would have a good place to

work once the Union was defeated.

(b) Refusing to reinstate its employees and discharg-

ing its employees and thereafter failing and refusing to

reinstate those employees because of the employees’ con-

certed activities or union activities.

(c) Dominating, assisting and contributing to the sup-

port of, or interfering with, Employee Committee, provided,

however, that nothing in this Order shall require or au-

thorize Respondent to vary or abandon any wage, hour,

seniority or other substantive benefit it has established

for its employees because of the aforesaid agreement, or

to prejudice the assertion by its employees of any rights

they derived as a result of said agreement; and further

provided that nothing herein shall be construed as pro-

hibiting its employees from forming, joining or assisting

any labor organization.

(d) Recognizing Employee Committee, or any suc-

cessor thereto, as a representative of its employees con-

cerning wages, rates of pay, hours of employment or any

other terms and conditions of employment.

(e) Refusing to recognize or bargaining collectively

with Local 259, Stove, Furnace, and Allied Appliance

Workers International Union of North America, AFL-CIO,

as the exclusive collective-bargaining representative of the

employees in the unit described below:

All production and maintenance employees, including

shipping, receiving, and tool crib employees, exclud-

ing all office clerical employees, technical and pro-

fessional employees, and supervisors as defined in the

Act.

(f) Unilaterally, without bargaining with, Local 259,

Stove, Furnace, and Allied Appliance Workers’ Interna-

A57

tional Union of North America, AFL-CIO, as the exclusive

collective-bargaining representative of the employees in

the above-described unit, changing wages or other condi-

tions of employment or unilaterally establish an employee

committee.

(g) Inany other manner, interfering with, restraining

or coercing its employees in the exercise of rights guar-

anteed to them by Section 7 of the Act.

2. Take the following affirmative action which is

deemed to be necessary to effectuate the policies of the Act:

(a) Offer Cathy Becquet, Dickie Adkins, Lacon Cross-

land, Sam Cook, Michael Cross, Robert Hayes, Michael

Holder, Larry Jones, Jimmy Prince, Larry Peters, E. W.

Woodward, David Wentzell, and the employees listed

herein in Appendix “A”, immediate and full reinstatement

to their former jobs or, if those jobs no longer exist, to

substantially equivalent positions without prejudice to their

seniority or other rights and privileges, discharging, if

necessary, any replacements hired on or after August 27,

1979.

(b) Make the above-named employees whole for any

loss of pay they may have suffered as a result of the dis-

crimination against them in the manner set forth in the

section of this decision entitled “The Remedy.”

(c) Withdraw and withhold recognition from and

completely disestablish Employee Committee or any suc-

cessor thereto as a representative of its employees for the

purpose of collective-bargaining, including the settlement

of grievances.”

(d) Upon request, bargain with Local 259, Stove,

Furnace, and Allied Appliance Workers’ International

33. Sound Technology Research, 221 NLRB 496 (1975), en-

forced 81 LC 113013 (C. A. 9, 1977).

A58

Union of North America, AFL-CIO, as the exclusive rep-

resentative of all the employees in the aforesaid appro-

priate unit with respect to rates of pay, wages, hours and

other terms and conditions of employment.

(e) Preserve and, upon request, make available to

the Board or its agents for examination and copying all

payroll records, social security payment records, timecards,

personnel records and reports and all other reports neces-

sary to analyze the amount of backpay due under the

terms of this Order.

(f) Post at its Lewisburg, Tennessee plant copies

of the attached notice marked Appendix B“.“ Copies

of said notice on forms provided by the Regional Director

for Region 26, after being duly signed by an authorized

representative of Respondent, shall be posted by it im-

mediately upon receipt thereof, and be maintained by

it for 60 consecutive days thereafter, in conspicuous places,

including all places where notices to employees are cus-

tomarily posted. Reasonable steps shall be taken by Re-

spondent to ensure that said notices are not altered, de-

faced or covered by any other material.

(g) Notify the Regional Director for Region 26, in

writing, within 20 days from the date of this Order what

steps Respondent has taken to comply herewith.

Dated at Washington, D.C. November 19, 1980

/s/ J. Pargen Robertson

J. Pargen Robertson

Administrative Law Judge

34. 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 NA-

TIONAL LABOR RELATIONS BOARD.”

A59

APPENDIX “A”

Date Unconditional Offer

Name Received by Respondent

Cathy Becquet' 9/12/79

Alfred Jett 10/23/79

Dewey Wayne Rowe?’ 10/ 5/79 &

10/23/79

Michael Wayne Brewer“ 10/17/80

Charles E. McCord 10/23/79

Ann Derryberry 10/23/79

Eddie Ward 12/ 5/79

Clyde Erwin 10/23/79

Sherry D. Willoughby 10/24/79

David Sherin 10/23/79 &

1/23/80

Chit Derryberry 10/23/79

James D. Flowers 1/10/80

Gary McClendon 11/ 1/79

Wesley Poteete 10/24/79

Sandra D. Luna 10/27/79

Jimmy Winchester 10/31/79

Raymond P. Osborne 10/31/79

1. Although Cathy Becquet is not included on Respondent’s

list of employees who made unconditional offers, testimony,

which I have credited, shows that Becquet first unconditionally

-— to return to work orally to Respondent on September 12,

2. Dewey Rowe testified that he offered to return to work

about two weeks before the election. I have credited that testi-

mony (see Section 2(a) (1) (vi) at page 11, above).

3. Michael Wayne Brewer was not listed on Respondent's

list of employees who have made unconditional offers. How-

ever, the evidence, which I credited, demonstrates that Brewer

talked with both Plant Superintendent Atkisson and President

Walker on October 17 or 18, 1979, about returning to work after

he (Brewer) had received a separation slip from Respondent. I

find that Brewer's inquiry on that date constitutes an uncondi-

tional offer to return to work.

A60

Edel Sparks 1/ 5/80

Eugene Pullen 10/23/79

Roy Rowe 10/23/79

Paul Rowe 10/23/79

James E. Stewart 10/23/79

Becky Gillium 10/23/79

William Frank Stewart 10/23/79

Margaret Neill 10/23/79

Karon Pischel Wells* 10/23/79

Nancy Reed 10/23/79

John Liggett 10/23/79

Stanley Galbraith 10/24/79

Marie Logue 10/24/79

Ruby Eckenroth 10/26/79

Larry S. Hopper 10/30/79

Shirley P. Metcalf 10/31/79

Nancy Diane Smith 1/10/80

Sam L. Cook, Jr. 1/10/80

Ben Porterfield 1/11/80

William F. Davis 1/11/80

Thomas R. Smith 1/11/80

Roy Garrett 1/19/80

Ronnie L. Burns 1/21/80

Wilburn Phillips 1/21/80

James egall 1/21/80

Chestley H. Derryberry 1/23/80

Mark Welch 1/23/80

4. Karon Pischel Wells may be the same person that testi-

fied during the hearing herein—Karen Wells.

reflects, and I find, that Mrs. Wells was terminated on October

If so, the record

* yo pursuant to Respondent’s policy (which A included in

returned

working at the time of his wife’s termination. I find that Mrs.

Wells was terminated for legitimate and substantial business rea-

sons. Therefore, if she is Karon Pischel Wells, she is not entitled

to reinstatement following her October 23 offer.

William Edwin Taylor 1/23/80

Bill D. Spence 1/23/80

Eddie Ward 1/28/80

Frankie Moore 2/11/80

Wendell J. Rowe 2/12/80

Jackie Metcalf 2/22/80

Mark Welch 3/31/80

Denise Luker 2/12/80

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

AN AGENCY OF THE UNITED STATES GOVERNMENT

WE WILL NOT threaten our employees that we will

not reinstate them because of their activities on behalf

of LOCAL 259, STOVE, FURNACE, AND ALLIED

APPLIANCE WORKERS’ INTERNATIONAL UNION

OF NORTH AMERICA, AFL-CIO, or any other labor

organization, or because they engage in strike activity.

WE WILL NOT tell our employees that they are to

mind their own knitting because of the employees’

union activities.

WE WILL NOT offer our employees higher wages in

order to induce our employees to break a strike.

WE WILL NOT tell our employees that we are in no

hurry to resume collective-bargaining negotiations if

we have to reinstatement everybody in the Union.

WE WILL NOT threaten our employees with plant

shutdown because we have to deal with the Union

President.

WE WILL NOT inform our employees that re-

employment will have to await a decertification elec-

tion.

A62

WE WILL NOT remove our employees’ picket signs

from public property.

WE WILL NOT engage in surveillance of our em-

ployees’ union activities.

WE WILL NOT threaten our employees that there will

be no more collective bargaining agreements with the

Union,

WE WILL NOT inform our employees that they will

have a good place to work once the Union is defeated.

WE WILL NOT discharge or refuse to reinstate our

employees or otherwise discriminate against our em-

ployees because of .their strike activities or union

activities.

WE WILL NOT form, assist, dominate, or interfere

with Employee Committee.

WE WILL NOT vary or abandon any wage, hour or

other substantive benefit established for our employ-

ees as a result of our dealing with Employee Com-

mittee.

WE WILL NOT recognize and will completely dises-

tablish Employee Committee, or any successor there-

to, as the representative of our employees concern-

ing wages, rates of pay, hours of employment or any

other terms and conditions of employment.

WE WILL NOT refuse to bargain collectively concern-

ing rates of pay, wages, hours and other terms and con-

ditions of employment with LOCAL 259, STOVE FUR-

NACE, AND ALLIED APPLIANCE WORKERS’ IN-

TERNATIONAL UNION OF NORTH AMERICA,

AFL-CIO, as the exclusive representative of the em-

ployees in the bargaining unit described below.

A63

WE WILL NOT unilaterally change our wage rates,

or other conditions of employment, or establish an

employee grievance committee without first nego-

tiating with the above-mentioned Union as the ex-

clusive representative of the employees in the bar-

gaining unit described below.

WE WILL NOT advise our employees to resign from

the above-mentioned Union as the exclusive bargain-

ing representative of the employees in the bargaining

unit described below.

WE WILL offer immediate and full reinstatement to:

Cathy Becquet, Dickie Adkins, Lacon Crossland. Sam

Cook, Michael Cross, Robert Hayes, Michael Holder,

Larry Jones, Jimmy Prince, Larry Peters, E. W. Wood-

ward, David Wentzell, Alfred Jett, Dewey Wayne

Rowe, Michael Wayne Brewer, Charles E. McCord,

Ann Derryberry, Eddie Ward, Clyde Erwin, Sherry D.

Willoughby, David Sherin, Chit Derryberry, James D.

Flowers, Gary McClendon, Wesley Poteete, Sandra

D. Luna, Jimmy Winchester, Raymond P. Osborne,

Edel Sparks, Eugene Pullen, Roy Rowe, Paul Rowe,

James E. Stewart, Margaret Neill, Karon Pischel Wells,

Nancy Reed, John Liggett, Stanley Galbraith, Marie

Logue, Ruby Eckenroth, Larry S. Hopper, Shirley P.

Metcalf, Nancy Diane Smith, Ben Porterfield, William

F. Davis, Thomas R. Smith, Roy Garrett, Ronnie L.

Burns, Wilburn Phillips, James Stegall, Chestley H.

Derryberry, Mark Welch, William Edwin Taylor, Bill

D. Spence, Eddie Ward, Frankie Moore, Wendell J.

Rowe, Jackie Metcalf, Mark Welch and Denise Luker

to their former jobs or, if their jobs no longer exist, to

substantially equivalent jobs, without prejudice to

their seniority or other rights and privileges; and WE

WILL make each of those employees whole for any

A64

loss they may have suffered as a result of our dis-

crimination against them, with interest.

WE WILL, upon request, bargain with the above-

named Union as the exclusive representative of all em-

ployees in the bargaining unit described below with

respect to rates of pay, wages, hours and other terms

and conditions of employment and, if an understanding

is reached, embody such understanding in a signed

agreement. The bargaining unit is:

All production and maintenance employees, in-

cluding shipping, receiving, and tool crib employ-

ees, excluding all office clerical employees, tech-

nical and professional employees, and supervisors

as defined in the Act.

WE WILL NOT in any other manner interfere with,

restrain or coerce our employees in the exercise of

their rights guaranteed them by Section 7 of the Na-

tional Labor Relations Act.

Walker Die Casting, Inc.

(Employer)

Dated By

(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 compl. nce with its provisions may be di-

rected to the Board’s Office, Mid-Memphis Tower, 8th Fl.,

1407 Union Avenue, P.O. Box 41559, Memphis, Tennessee

38104 (Tel. No. (901) 541-2725).

A65

APPENDIX B

(Filed July 8, 1982)

No. 81-1194

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

WALKER DIE CASTING, INC.,

Petitioner,

V.

NATIONAL LABOR RELATIONS BOARD,

Respondent and Cross-Petitioner.

ORDER

Before: KEITH, and KRUPANSKY, Circuit Judges and

WEICK, Senior Circuit Judge

This matter is before the Court on the petition of

Walker Die Casting, Incorporated (the Company) to re-

view and set aside an order of the National Labor Rela-

tions Board (the Board) finding that the Company en-

gaged in numerous violations of the National Labor Re-

lations Act (the Act). The Board’s order directs the Com-

pany to, inter alia, cease and desist from its refusal to

bargain with Local No. 259 of the Stove, Furnace and Al-

lied Appliance Worker’s Union of North America (the

Union) and reinstate, with back pay, certain former em-

ployees of the Company.' The Board has cross-applied for

enforcement of its order.

The Company is engaged in the manufacture of zinc

and aluminum castings in Lewisburg, Tennessee and the

Union has represented the employees at the Lewisburg

1. 255 N.L.R.B. 34 (1981)

A66

facility since 1971. During early 1979 the Company -

quested that the Union engage in negotiations for the pur-

pose of drafting a labor contract to replace the existing

agreement which was to expire on August 18, 1979. Ne-

gotiations, however, did not commence until June 29, 1979,

apparently because of the Union’s failure to respond to

the Company’s request.

Thereafter, negotiating sessions occurred on several

dates up to and including August 17, 1979. On that date the

Union commenced a strike. On August 27, 1979 the Com-

pany directed a letter to the Union’s president informing

him as follows:

The final proposal which was made to you and the

members of your negotiating committee on August 17,

1979, was contingent on acceptance of that offer with-

out a work stoppage.

Since Local 259 elected to reject that offer and calls

(sic) a strike on August 18, 1979, the Company’s last

offer is hereby withdrawn.

A petition to decertify the Union was filed on Sep-

tember 6, 1979. The Regional Director approved a stipu-

lation for a consent election on October 2, 1979 and an elec-

tion was held on October 19, 1979, resulting in a vote

against the Union. The Union, however, filed objections

to the election and subsequently the decertification pe-

tition was dismissed. The Company’s request for review

of the dismissal was denied without prejudice to the right

of the Company to reinstate the request following resolu-

tion of the unfair labor practice charges here in issue.

Thereafter, the Board concluded, the Company en-

gaged in a series of unfair labor practices including, among

others, threatening to “bust” the Union, threatening to

close the plant, conducting surveillance of Union activities,

A867

discharging an employee for her Union involvement, uni-

laterally instituting an attendance bonus plan and estab-

lishing an employee committee and bargaining with that

committee.”

Following the filing of the decertification petition, the

Union, on September 7, 1979, submitted a contract pro-

posal to the Company. The Company responded to this

proposal on September 11, 1979 by stating that it would

not schedule further bargaining sessions “until the [de-

certification] petition has been resolved”.

It is undisputed, and the Board found, that the strike

was an economic strike at its inception. However, the

Board concluded that the Company’s withdrawal of its

contract offer on August 27, 1979 was a violation of

88 (a) (5) of the Act and, more importantly, that this vio-

lation “converted” the strike into an unfair labor practice

on that date. Accordingly, the Board’s order directs the

Company to reinstate every striker who made an uncondi-

tional offer to return to work after August 27, 1979.

In support of its finding, the Board properly noted

that this Circuit has previously held that “if an unfair

labor practice is a ‘contributing cause’ of a strike, then,

as a matter of law the strike must be considered as an

unfair labor practice strike.” Larand Leisurelies, Inc. v.

NLRB, 523 F.2d 814, 820 (6th Cir. 1975). Where, as in

the instant case, the strike was initially an economic strike,

an unfair labor practice will convert the strike into an

unfair labor practice strike if it prolongs the strike. Rogers

Manufacturing Co. v. NLRB, 486 F.2d 644 (6th Cir. 1973),

cert. denied, 416 U.S. 937 (1974).

2. The Company did not object to the Board’s finding re-

garding the establishment of the employee committee and thus

the finding is not in dispute in this appeal.

A68

However, before the foregoing principles are appli-

cable, substantial evidence must support the Board’s find-

ing that a “converting” unfair labor practice did, in fact,

transpire. As previously indicated, the Board concluded

that the Company’s withdrawal of its final contract offer

subsequent to the commencement of the strike constituted

a refusal to bargain in violation of §8(a)(5) of the Act.

This Circuit, however, has recently held that “an em-

ployer has a right to withdraw proposals made before a

strike to reflect the changed economic background.” Pease

Co. v. NLRB, 666 F.2d 1044 (6th Cir. 1981), cert. denied,

50 U.S.L.W. 3916 (May 18, 1982). The Company’s with-

drawal of its final contract offer in the instant case, like

the employer’s action in Pease, was simply a legitimate

bargaining tactic which the Company was entitled to em-

ploy.* Therefore the Company did not commit an unfair

labor practice on August 27, 1979 and, accordingly, of

course, the strike was not converted to an unfair labor

practice strike on that date.

However, as previously indicated, the Company noti-

fied the Union on June 11, 1979, that it flatly refused

to bargain with the Union and justified this refusal by

reference to the pendency of the decertification petition.

The Board also found that this refusal to bargain con-

stituted an unfair labor practice.

It is, as the Company urges, permissible for an em-

ployer to refuse to bargain with a Union under eireum-

stances where the Company entertains a good faith doubt

3. To the extent the Board relies, is an effort to ascribe

pernicious overtones to the August 27th withdrawal, on its find-

ing that an August 16, 1979 memo from the Company to its em-

ployees constituted an unfair labor practice, that reliance is

ill-fated. The August 16, 1979 memo contained “no threat of

reprisal or force or promise of benefit” and accordingly, did not

constitute a violation.

A69

as to the Union’s status of bargaining representative for

a majority of employees. However, “the mere filing of

a decertification petition is of itself insufficient justifica-

tion” to support such a refusal. Rogers Manufacturing

Co., supra at 647. Rather, the employer must advance

“evidence indicating that a good faith doubt was reasonably

grounded.” Id. The Company in the instant case failed

to introduce such evidence. Moreover, by. September 11,

1979 the Company had undertaken to engage in other

unfair labor practices, including unilaterally raising start-

ing wages and firing striking probationary employees.

These actions on the part of the Company “cast a shadow

on its allegations of good faith.” Id.

The Court concludes that the Board’s finding that

the Company’s refusal to bargain with the Union on and

after September 11, 1979 was a violation of §8(a) (5)

is supported by substantial evidence. Moreover, this re-

fusal obviously prolonged the strike, thereby converting

it into an unfair labor practice strike on September 11,

1979. The remaining findings and conclusions of the Board

are clearly supported by substantial evidence.

Accordingly, the Board’s order as modified herein is

hereby enforced.

ENTERED BY ORDER OF THE COURT

/s/ John P. Hehman

Clerk

ISSUED AS MANDATE: DECEMBER 7, 1982

COSTS: NONE

A70

APPENDIX C

(Filed November 29, 1982)

No. 81-1194

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

WALKER DIE CASTING, INC.,

Petitioner,

V.

NATIONAL LABOR RELATIONS BOARD,

Respondent and Cross-Petitioner.

ORDER

BEFORE: KEITH and KRUPANSKY, Circuit Judges;

. and WEICK, Senior Circuit Judge

Upon consideration, no judge having favored rehearing

en banc, the Court concludes the issues joined in the peti-

tion for rehearing were fully considered in the original

submission and decision in the present case. Accordingly,

the petition for rehearing is DENIED.

ENTERED BY ORDER OF THE COURT

/s/ John P. Hehman

Clerk