Tee-Pak, Inc.

458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. The aforesaid unfair labor practices having occurred in connection with the operation of Respondent's business as set forth in section I , above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and substantially affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices , I shall recommend that it cease and desist therefrom and that it take certain affirmative action of the type conventionally ordered in such cases, which I find necessary to remedy and to remove the effects of the unfair labor practices and to effectuate the policies of the Act. Because of the limited nature of the unfair labor practices charged and found herein , the recommended remedial action will be limited to requiring Respondent to bargain with the Union on request. [Recommendations omitted from publication.] Tee-Pak, Inc. and Oil, Chemical and Atomic Workers Interna- tional Union, AFL-CIO, Local 7-569. Case No. 13-CA-2747. March 30, 1959 DECISION AND ORDER On November 28, 1958, Trial Examiner Albert P. Wheatley issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dis- missed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel filed ex- ceptions to the Intermediate Report and a supporting brief. The Respondent filed a brief in support of the Intermediate Report.- Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman Leedom and Members Rodgers and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds no prejudicial error was committed. The rul- ings are hereby affirmed. The Board considered the Intermediate Report, the exceptions, the briefs, and the entire record in the case and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the modifications noted below. We agree with the ultimate conclusion of the Trial Examiner inso- far as he finds that the Respondent's conduct in terminating the cleanup project with the resultant layoff was not a violation of Sec- tion 8 (a) (1) and (3). However, in arriving at this conclusion, we do so only because we find that the layoffs were motivated by eco- nomic reasons. 1 The Respondent's request for oral argument is hereby denied as the record, exceptions, and briefs adequately present the issues and positions of the parties. 123 NLRB No. 56. TEE-PAK, INC. 459 The essential facts are not in dispute. Near the end of January 1958, Respondent found it necessary, for economic reasons, to lay off 8 to 10 employees within the production and maintenance unit. About this time, the Respondent advised the Union that it contem- plated using the slack period to clean up the plan. It proposed that the two most senior employees among those to be laid off be as- signed to this work, which in the past had been contracted out to decorators. The Union rejected this proposal. Nevertheless, the Respondent selected the two most senior employees (Leo Harris and Leonard Martin) from the group to be laid off and assigned them to wall washing. There followed several grievance meetings and the exchange of memoranda between the Union and the Respondent. The Union reiterated its position that the work in question should be included under the bargaining contract and paid at painter and painter as- sistant rates. The Respondent maintained throughout that the work was customarily done by outsiders and was only being offered now to Harris and Martin to ease their situation, and that, if the Union per- sisted in its position, the Respondent would be forced to let the latter employees go, and to give the work to outside contractors. The last of these memoranda by the Respondent stated : We regret that the Union has taken the position that employ- ment of the men laid off from the bargaining unit shall be sub- ject to bumping under the contract even though the work they are assigned to has traditionally been done by outside contrac- tors. This factor, coupled with the Union's request to classify these jobs in pay grades 4 and 6, leaves us the alternatives of arbitration or discontinuance of the work by our laid-off em- ployees. Since it would be impractical to constantly change employees assigned to this work and costly to go through arbitration, the Company has decided to return to the previously established practice of contracting this work out. Therefore, Leo Harris and Leonard Martin have been laid off effective February 28, 1958. The only issue before the Board is whether Respondent's course of conduct violated Section 8 (a) (1) and (3) of the Act. The Gen- eral Counsel contends that Harris and Martin were laid off because the Union, acting on their behalf, attempted to process a grievance on the question of whether their jobs were to be included or excluded from the bargaining unit and that the natural consequence of this discrimination was to discourage membership in such Union. We do not agree with this contention. It appears from the record, and we find, that the Employer, in laying off the employees in ques- 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion, was motivated by the economic unfeasibility of continuing the program, and not by any desire to penalize the employees for prose- cuting a grievance so as to discourage union membership, within the meaning of the Act. Accordingly, we sustain the Trial Ex- aminer, and shall dismiss the complaint. [The Board dismissed the complaint.] INTERMEDIATE REPORT AND RECOMMENDATIONS ISSUE The issue herein is whether Leo Harris and Leonard Martin were laid off on or about February 28, 1958 , because they "engaged in union or other concerted activity." THE FACTS At the times material herein, Respondent (Tee-Pak, Inc.) and the Union (Oil, Chemical and Atomic Workers International Union, AFL-CIO, Local 7-569) were parties to a collective -bargaining agreement covering production and main- tenance employees. During January 1958 , the Respondent advised the Union that it (Respondent) contemplated a number of layoffs for economic reasons 1 and that 8 or 10 em- ployees were scheduled to be laid off the latter part of that month . Respondent also advised the Union that it (Respondent ) contemplated using the slack period to wash and paint large areas of wall space and proposed that two of its own employees rather than outsiders be used for the wall-washing operations? Re- spondent also proposed that the two most senior employees among the first group of employees to be laid off be assigned to this work and that these two employees, while wall washing, not be considered as within the unit set forth in the contract because the seniority provisions thereof, if applicable , would require "bumping" as each subsequent group of employees was laid off . The Union rejected this proposal. Nevertheless, Respondent, at the time of the layoffs during the latter part of January, selected from the laid-off group the two most senior employees and assigned them (Leo Harris and Leonard Martin ) to wall washing. By memorandum dated February 6, 1958, the Union advised Respondent: The Company has violated Article I and II of the articles of agreement s by informing the Union that work formerly done by members of the bar- gaining unit 4 is now to be done by recalled Union employees and that same- employees are excluded from Article IV of the agreement.5 The Union demands that this situation be corrected immediately. The- Union further requests that a meeting be held immediately to ascertain the: wage rate to be paid for this work. The parties met and conferred about this matter on February 19 or 20 , 1958,. but the positions of the parties remained the same. The Union contended that the contract applied to wall-washing operations and Respondent contended that it did not and that if the Union persisted in its position Respondent would lay off Harris and Martin-would lay off the wall washers rather than apply the contract pro- visions and consequently a "bumping" procedure. By memorandum dated February 20, 1958, Respondent advised the Union: The following will constitute the Company answer to the meeting held today on the subject employees. 1 The total number of layoffs during January and the succeeding months approximated 60. 2 In the past, Respondent had used outside decorators when the area to be painted exceeded approximately 300 square feet. The area then under consideration approximated 225,000 square feet. a Article I of the agreement defines the term "employees " and article II provides for recognition of the Union a s the bargaining agent for "production and maintenance" employees. • See footnote 2. 6 Article IV of the agreement contains "union shop " and "checkoff" provisions. TEE-PAK, INC. 461 The Company needed to have the work in question done. In the past, work of this type was done by outside contractors. The Company decided, in this case, to give the work to laid off employees. If the Union persists in the position that it has taken, we will lay off the men and give the work to outside contractors. By memorandum dated February 23, 1958, the Union advised Respondent: The Union rejects the answer given by the Company to this grievance of the Step II meeting and therefore requests that this grievance be taken into the Third Step of the grievance procedure. The Respondent's negotiator and the Union's negotiator met and conferred about this matter on February 25 but their respective positions remained as indi- cated above `and as indicated in the quoted correspondence. By memorandum dated February 26, 1958, Respondent advised the Union: We regret that the Union has taken the position that employment of the men laid off from the bargaining unit shall be subject to bumping under the contract even though the work they are assigned to has traditionally been done by outside contractors. This factor coupled with the Union's request to classify these jobs in pay grades 4 and 6 leaves us the alternatives of arbitration or discontinuance of the work by our laid off employees. Since it would be impractical to constantly change employees assigned to this work and costly to go through arbitration, the Company has decided to return to the previously established practice of contracting this work out. Therefore, Leo Harris and Leonard Martin have been laid off effective February 28, 1958. A day or two prior to February 28, 1958, Harris and Martin were told that they were being laid off (from the wall-washing jobs) because "the Union was kicking against" them washing the walls and that their layoffs would be effective at the close of business on February 28, 1958. On August 29, 1958, the complaint herein issued accusing Respondent of dis- crimination against Harris and Martin. By telegram dated August 29, 1958, Respondent advised Harris and Martin: You are hereby recalled to work on clean-up crew. Please report at regu- larly scheduled hour on September 2, 1958. Harris and Martin were reinstated to their wall-washing jobs on September 2, 1958. No wall-washing operations were performed between the time Harris and Martin were laid off and the time they were reinstated (between February 28 and September 2, 1958). Conclusions The controversy here involves a dispute between Respondent and the Union over the assignment of some newly created work and the applicability of the collective-bargaining agreement. While Respondent's choice of language-that the layoffs were because of the Union's persistence in processing its grievance-standing alone indicates that the layoffs were for presenting and processing a grievance, the record as a whole reveals that this language amounted to a statement indicative that an impasse had been reached and that Respondent was resolving this conflict by following the contentions it had made to the Union. Whether Respondent's course of conduct in resolving this dispute violated the collective-bargaining agree- ment or sections of the Act other than 8(a)(1) and (3) is not before the Trial Examiner and not determined herein. The sole issue before the Trial Examiner is whether Respondent's course of conduct violated Section 8(a)(1) and (3) of the Act. The General Counsel, relying upon the Marlin Firearms case, 116 NLRB 1834, 1839-1840, urges that the layoffs had a natural substantial tendency to discourage concerted activities or union membership and that these sections of the Act were violated. The fact that some encouragement or discouragement of concerted activities or of union membership may result from specific conduct does not appear to be the criterion to be used in determining whether the conduct is violative of the Act, but whether the natural substantial tendency, not merely the incidental tendency, is to encourage or discourage (see Consolidation Coal Company, 100 NLRB 392). Here the acts and conduct of Respondent were for purposes and objects which are remote from those normally considered to give substantial encouragement or discouragement and such acts and conduct had no more than an incidental effect 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on concerted activities or union membership . Respondent herein contended that the wall-washing work was not encompassed within the terms of the contract and sought to force acceptance of its contention . Although others may not agree as to how the contract should be interpreted and applied, such disagreement does not detract from Respondent's right to seek its interpretation and application. Also, whether the layoffs were merited or unmerited , just or unjust , mild or drastic are not before the Trial Examiner, the Trial Examiner having only the limited issue of whether the layoffs were for reasons not sanctioned by Section 8(a)(1) and (3) of the Act . In the opinion of the Trial Examiner this was a struggle involving the appropriate composition of the bargaining unit and encour- agement or discouragement of concerted activities or union membership was, at best, only remotely and indirectly involved. This was not a situation , like that involved in Marlin Firearms, where the natural substantial tendency of Respond- ent's conduct was to defeat the purposes of the Act and eliminate concerted activities or union membership and the friendly adjustment of industrial disputes. The Trial Examiner believes and finds that Respondent's conduct was not violative of the sections of the Act under consideration. In view of the foregoing, it is believed that the complaint, in its entirety , should be dismissed. [Recommendations omitted from publication.] Kermac Nuclear Fuels Corp . and United Steelworkers of America, AFL-CIO, Petitioner Kermac Nuclear Fuels Corp . and International Brotherhood of Electrical Workers, Local No. 611 , AFL-CIO, Petitioner. Cases Nos. 33-RC-708 and 33-RC-710. March 30, 1959 SUPPLEMENTAL DECISION, ORDER, AND AMENDED DECISION AND DIRECTION OF ELECTION On February 17, 1959, the Board issued a Decision and Direction of Elections in the above-entitled proceeding,,. in which it directed separate elections in two voting groups of employees, one consisting of production and maintenance employees and the other of elec- tricians, helpers, apprentices, and electrical repairmen at the mines, mill, and auxiliary departments of the Employer's operations near Grants, New Mexico. Thereafter on February 24, 1959, the Em- ployer filed a motion for reconsideration of the Decision and Direc- tion of Elections insofar as it granted a self-determination election for a voting group of electricians in Case No. 33-RC-710. In its motion the Employer asserted that since the hearing, it has progressed from a construction to a full production stage, as outlined in an affidavit by Robert L. Cline, its industrial relations manager, dated January 28, 1959; and that a separate voting group of electricians is therefore inappropriate. The Board, on March 6, 1959, issued a telegraphic notice 2 to all parties stating that, unless any party to this proceeding shows good cause to the contrary, the Board will admit Cline's affidavit into the 1122 NLRB 1512. *The notice also ordered the Regional Director to defer the conduct of the elections directed pending further action herein. 123 NLRB No. 69.