NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1960 CCH-NLRB ¶9062, EDWARD E. GURIAN & CO., INC, Local 1031, International Brotherhood of Electrical Workers (AFL-CIO). , (Aug. 05, 1960), National Labor Relations Board, (Aug 5, 1960)

EDWARD E. GURIAN & CO., INC, Local 1031, International Brotherhood of Electrical Workers (AFL-CIO).

128 NLRB, No. 63,128 NLRB, No. 63, Cases Nos. 13-CA-3371 and 3378, August 5, 1960, Owsley Vose, Trial Examiner. August 5, 1960 Owsley Vose, Trial Examiner. .

Before RODGERS, JENKINS and FANNING.

Frank L. Ingram for Employer. Alfred Kamin, by Sheldon M. Charone, for Union. Albert DeVito for President of Union. Leonard J. Kamer and Edward Wynne for NLRB.

Majority Representation--Sufficiency of Evidence.--A finding that a union represented a majority of the employees of a unit found to be appropriate for purposes of collective bargaining was supported by unrefuted evidence that of the 16 employees in the unit at the time that bargaining negotiations were to have been resumed, 13 of them had signed cards authorizing the union to act as their sole bargaining agent prior to the time that the union had called its initial strike in protest over the termination of some employees.

Back reference ¶3042.20.

Good-faith Bargaining--Unreasonable Delay--Effect as Refusal to Bargain.--An employer’s duty to bargain with a union in good faith also requires that he do so with reasonable promptness and without unreasonable delays. He may not relegate that duty to a position of less importance than that of other business matters of consequence. An employer breaches his duty to bargain in good faith where his insistence upon indefinite postponements of bargaining negotiations is prompted by a desire to avoid all bargaining.

Back reference ¶3085.63.

Employer’s Duty to Reinstate Strikers--Scope.--Employees who had been unlawfully discharged for having engaged in a strike in protest against their employer’s refusal to bargain with their collective bargaining representative nevertheless retained their status as employees within the meaning of the National Labor Relations Act. They were entitled to reinstatement upon request even though such action required the discharge of employees who had replaced them.

Back references ¶4045.751, 5240.60.

Employer, an auto accessories manufacturer, was charged with having refused to bargain collectively in good faith with the union in violation of Section 8(a)(5) and (1) of the Act, and with having discharged and having refused to reinstate 11 employees, who allegedly struck in protest against the employer’s refusal to bargain, in violation of Section 8(a)(3) and (1) of the Act. The Trial Examiner found that the employer had engaged in the aforesaid violations and recommended the reinstatement of the discharged employees with back pay in the manner and to the extent provided in his recommendation.

The Board adopted the findings, conclusions and recommendations of the Trial Examiner. However, it did not adopt his observations as to the “reasonableness” of certain proposals made by the union, and the possible implication that the employer was obligated to agree to the substance of the union’s proposals. The Board stated that it was a well-established rule that it could not pass judgment on the desirability of bargaining proposals, and that the Act specified that the bargaining obligation did not compel either party to agree to a proposal or require the making of a concession.

The employer, a family-owned corporation, operated by 2 brothers and the wife of one of them, normally employed about 20 persons. During the peak season from February to about the middle of June, it employed an additional 20 persons. The brothers actually operated the business and made no important decisions without consulting each other. The wife participated in policy-making discussions. On June 17, 1959, 16 employees signed union-authorization cards and the next day 10 more signed up. Also on June 18th, the employer terminated the employment of the temporary employees, who, on leaving the plant, informed the union’s representative that they had been discharged. Assuming that they had been discharged for signing up with it, the union called a strike for the morning of June 19th. This strike was called off following a meeting between the brothers and the union representatives during which the brothers explained that the employees who had been laid off were temporary ones hired for the peak season only. They also agreed to recognize the union as the collective bargaining representative of their production and maintenance employees. Contract negotiations were carried on at various times until July 8th. A session scheduled for July 16th was not held because the day previous thereto, one of the brothers, Meyer Gurian, had a heart attack and the other brother, Edward Gurian, refused to negotiate without his presence. In response to inquiries from the union as to when the brother would get well enough to confer or when negotiations could be resumed, Edward stated that he had no idea. He turned down the union’s proposal of a postponement of negotiations for six months with an understanding that whatever agreement was then reached would be made retroactive to July 20th. On July 27th, the union established a picket line around the employer’s premises, and 9 of its 16 production and maintenance employees participated therein. Subsequently, 2 more employees joined the picket line. On August 3rd, the employer hired 7 replacements and transferred an office worker to take the place of another striker. The employer notified the replaced employees by letter the same day that their employment had been terminated. The union made efforts to resume negotiations on August 10th and 12th without success. On August 13th, the union offered to terminate the strike as of that date and offered to return all the striking employees to work. The employer offered only to take back the three who were not replaced. The three refused to return. On August 21st, the employer replaced two of them and on the 27th the remaining one. On September 21st, the union’s attorney offered to return the striking employees to work. The employer made no response to this offer. In the latter part of November, Meyer Gurian returned to work on a part-time basis.

The Trial Examiner found that on June 18, 1959, and at all times thereafter, the union represented a majority of the employees in the appropriate unit. He based this finding upon the fact that of the 16 employees in the unit on July 16th, cards authorizing the union to act as their “sole bargaining agent” was signed by 13 of them on or before June 18th.

In finding that the employer had breached its duty to bargain in good faith, the Trial Examiner pointed out that the obligation imposed upon the employer by Section 8(a)(5) of the Act required him to make expeditious and prompt arrangements, within reason, for meeting and conferring. This obligation required the employer to give it the same serious consideration as other matters of business importance.

From the Trial Examiner’s Opinion

Furthermore, the Respondent’s conduct after the strike began points to the conclusion that its insistence upon delay before the strike was motivated by a desire to avoid bargaining altogether. Even after Meyer Gurian had been ill for almost a month, Edward Gurian still adhered to the position that he could not set a date for resuming negotiations because his brother’s doctor had not advised him when Meyer would be well enough to participate. At this time Edward Gurian complained to Attorney Charone that the Union was being unfair in not giving him 3 more months to determine the condition of his brother’s health. Respondent’s prompt decision to discharge the strikers and to file a petition for an election also casts light on its motives in delaying the negotiations. The Respondent’s discharge of the strikers, of course, gave the Respondent a colorable basis for challenging the Union’s claim of representative status. But here, the Respondent’s action is to be viewed in light of its other conduct in this case, including its continued insistence upon an indefinite postponement of negotiations, and its rejection of the Union’s proposal for a 6-month postponement with retroactive benefits. Viewed in this light the Respondent’s discharge of the strikers is of a piece with the Respondent’s other acts and conduct and, in my opinion, reflects a desire to rid itself of the bargaining obligation altogether.

The Trial Examiner pointed out that it was the employer’s insistence on an indefinite postponement that caused the union’s representative to recommend that the employees go out on strike and that the employer’s refusal to bargain was the only topic of discussion at the meeting when the vote on whether to strike was taken.

From the Trial Examiner’s Opinion

Upon these facts and the entire record I conclude that the strike which commenced on July 27, 1959, was caused by the Respondent’s refusal to bargain collectively in good faith with the Union, that it was therefore an unfair labor practice strike, and the employees engaged therein were unfair labor practice strikers.

As unfair labor practice strikers, the 11 strikers retained their status as employees within the meaning of the Act, were protected from discharge for having engaged in the strike, and were entitled to reinstatement upon request even though this involved the discharge of the employees who had replaced them. Mastro Plastics Corp. v. N. L. R. B. [29 LC ¶69,779] 250 U. S. 270, 278, 286.

The Trial Examiner commented that the employer discharged 8 of the strikers on August 3rd, 2 more on August 21, and one on August 27th; that on August 13th, the union notified the employer that it was terminating the strike and offered to return the strikers to work; that the 3 unreplaced strikers refused the employer’s offer of work when he did not extend the offer to the other 8 strikers who had been replaced; that the picketing thereupon continued; and that the employer make no reply to the union’s subsequent offer of September 21st to terminate the strike and to return to work the 11 strikers who had been replaced. On these facts, the Trial Examiner found that the employer, by discharging the striking employees on the dates mentioned, and by refusing to reinstate them on August 14th and September 22nd, had engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act.