Federal-Mogul-Bower Bearings, Inc.

NATIONAL SEAL, ETC. 661 National Seal, Division of Federal -Mogul-Bower Bearings, Inc. and Local 171, United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO. Case No. 21-CA-4738-1. March 21, 1963 DECISION AND ORDER Upon a charge duly filed on March 16, 1962, and amended on April 27, 1962, by Local 171, United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, hereinafter sometimes re- ferred to as Local 171, the General Counsel for the National Labor Re- lations Board, by the Regional Director for the Twenty-first Region, issued a complaint dated May 10, 1962, against National Seal, Division of Federal-Mogul-Bower Bearings, Inc., herein referred to as the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8(a) (3) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, the amended charge, the complaint, and the notice of hearing were duly served upon the Respondent and upon the Charging Party. With respect to the unfair labor practices, the complaint alleged in substance that on or about October 31, 1961, the Respondent, by discharging certain of its employees because they had participated in a lawful strike against the Respondent, violated Section 8(a) (3) and (1) of the Act. Thereafter, on May 21, 1962, the Respondent filed an answer, denying the material allegations of the complaint. On August 23, 1962, all parties to this proceeding entered into a stipulation of facts, and requested that the proceeding be transferred directly to the Board for findings of fact, conclusions of law, and a Decision and Order. The request states that the parties have waived their rights to a hearing before a Trial Examiner and to the issuance of an Intermediate Report and Recommended Order. The parties also agreed that their stipulation and certain specified documents shall constitute the entire record in the case. On August 29, 1962, the Board granted the parties' request to trans- fer the case to the Board. Briefs were thereafter filed by the Respond- ent and by the General Counsel. Upon the basis of the parties' stipula- tion, the briefs and the entire record in the case, the Board makes the following : FINDINGS or FACT 1. THE BUSINESS OF THE COMPANY The Respondent, a Michigan corporation, with branches in several States, including Downey, California, is engaged in the manufacture of automobile parts. During the past year, the Respondent purchased and caused to be delivered goods, materials, and supplies valued in 141 NLRB No. 27. 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD excess of $50,000 from points located outside the State of California directly to its Downey, California, plant. The Respondent admits, and we find, that it is engaged in commerce within the meaning of the Act. II. TILE LABOR ORGANIZATION INVOLVED Local 171, United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES In September 1961 representatives of Local 171 and the Respondent began negotiations pursuant to a wage reopener clause in their exist- ing collective-bargaining contract. That clause provided that the collective-bargaining contract would terminate on October 1, 1961, in the event that agreement was not reached by that date. The parties failed to agree and on October 1 the Respondent's employees, in- cluding even probationary employees, who had not yet completed their 60-day probationary period,' went on strike. On October 27 the Re- spondent notified each of its employees that it was opening its plant for full production on October 30 and that it would commence to hire replacements. On October 30 the Respondent hired 30 new employees to replace strikers who had not reported for work and on October 31 the replaced strikers were notified that their employment had been terminated. On October 31 the Respondent also sent a letter to five of its probationary employees who had not been replaced,' stating in pertinent part, "Since you did not complete your probationary period prior to the strike you are being terminated. We will be pleased to consider your application for future employment at any time." The strike was settled on November 21, at which time the parties entered into a settlement agreement containing various provisions relating to the return to work of "replace" and "nonreplaced" strikers. The parties agree that Local 171's strike was a lawful economic strike and that the Respondent acted lawfully in terminating the em- ployment of the strikers who had been replaced. The sole issue before the Board is whether the Respondent violated Section 8(a) (3) and (1) by discharging the five unreplaced probationary employees on October 31. The Respondent contends that : it had consistently required probationary employees to complete a 60-day probationary period 'The collective-bargaining agreement between the Respondent and Local 171 provides, "There shall be a sixty (60) day probationary period for all new employees who during such probationary period shall not be regarded as regular employees and, in case of dis- charge, shall have no recourse to the grievance procedure." 2 R Bonballion , Charles Coleman, J. M. Cordray, Shirley Pollard , and Isabelle Powell The other two probationary employees , M. Holst and B. Sanford were replaced and they were sent the same letter that had been sent to nonprobationary employees who had been replaced. NATIONAL SEAL, ETC. 663 without interruption; s probationary employees whose 60-day proba- tionary period was interrupted have always been terminated; this rule has been applied to probationary employees even where the proba- tionary period was interrupted for reasons of illness or because of other excused absences; and, therefore, the Respondent did not violate the Act since it terminated the probationary employees herein because they did not complete their probationary period and not because they participated in the strike. We are unable to agree with Respondent's reasoning; rather, we find that by discharging the five unreplaced probationary employees on October 31, the Respondent violated Section 8(a) (3) and (1) of the Act. The Respondent does not deny that the failure of the proba- tionary employees to complete their probationary period was due solely to the fact that they had engaged in strike activity. Thus, by dis- charging these employees because they failed for such a reason to complete their probationary period, the Respondent in effect penalized them with the loss of their jobs because they had engaged in lawfully protected activity. The Respondent might, as it contends, have law- fully discharged these probationary employees if their 60-day proba- tionary period had been interrupted because of excused absences, such as illness, since the Act affords no protection to employees who are absent because of illness or for other similar reasons, even if such absences are excused. Because the Act does, however, protect em- ployees who are absent because of strike activity, the Respondent may not apply this 60-day rule to employees who are absent because of a strike. The Board has recently held 4 that an employer violated Section 8(a) (3) of the Act by making certain changes in its profit- sharing plan under which employees' absences because of strike activ- ity were considered to be the equivalent of normal absences from work for the purpose of determining forfeiture of the employees' rights under the plan. The Board there concluded that the employer may not lawfully decide that "strike time is merely another form of absence, equating it to other forms of absence discouraged by it, and then proceed to impose a total and nonproportionate forfeiture on employees because they engaged in such absence-in effect because they engaged in Section 7 activity." We deem this decision controlling in the instant case. If an employer may not equate strike time to other The parties stipulated that: the Respondent has traditionally terminated probationary employees whenever a layoff occurs because the Respondent wants probationary periods to be continuous ; the sole motive of the Respondent in terminating the probationary em- ployees herein was that the Respondent wanted all probationary periods to be continuous rather than broken ; and the Respondent lost so many customers during the first 30 days of the strike it was uncertain whether it would require the same work force when the strikers resumed work. 4 Quality Castings Company , 139 NLRB 928, chairman McCulloch and Member Rodgers dissenting 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD forms of absence for the purpose of forfeiting employees' rights in a profit-sharing plan, it surely may not equate strike time to normal absence for the purpose of completely depriving employees of their jobs. The application of the rule herein, equating strike absences to normal absences for such purposes, necessarily interferes with the employees' right to engage in protected concerted activity and dis- criminates against such employees. We accordingly find that by dis- charging employees Bonballion, Coleman, Cordray, Pollard, and Powell I on October 31, 1962, the Respondent violated Section 8 (a) (3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in section III, above, occurring in connection with its operations, as described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. TIIE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (3) and (1) of the Act, we shall order that it cease and desist therefrom and take affirmative action designed to effectuate the policies of the Act. We have found that the Respondent discriminatorily discharged certain probationary employees on October 31, 1962. However, it appears from the record that during the strike the Respondent lost customers and that it is uncertain whether it would require the same size work force when all the strikers resume work. Under these cir- cumstances, we shall order the Respondent to offer to employees Bonballion, Coleman, Powell, and Pollard 8 immediate and full rein- 5 The parties stipulated that employee Powell had completed her probationary period prior to the strike and that she was treated as a probationary employee by the Respondent through a clerical error. However, regardless of the Respondent's belief as to Powell's status , since the Respondent admittedly terminated her employment because she had en- gaged in lawful protected activity, we find that such termination violated Section 8(a) (3) of the Act. 6 While we have found that the Respondent also discharged probationary employee Cordray on October 31 in violation of Section 8(a) (3), the parties stipulated that during the strike she was observed distributing heavy nails at the entrance to the Respondent's parking lot ; that similar nails had badly damaged tires of employees and passers-by be- fore she was discovered , and other tires were similarly damaged afterward ; that she was immediately warned to refrain or be arrested ; that a police report was filed by the Respondent ; and that if employee Cordray had not been previously terminated, she would have been discharged for this action . In view of these circumstances , we find that the Respondent would have been justified in discharging employee Cordray for her picket line misconduct and we shall accordingly not order that employee Cordray be reinstated or that she be awarded backpay Member Brown , however , does not agree that the stipu- lated facts warrant withholding the customary remedies from Cordray . See Trumbull Asphalt Company of Delaware, 139 NLRB 1221 The parties also stipulated that employee Powell, who, as noted above, was treated as a probationary employee and terminated because of a clerical error , has already been re- NATIONAL SEAL, ETC. 665 statement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, all probationary employees hired as replacements for these employees on or after the date of their discharge. If there is not sufficient work available for the remaining probationary employees and those to be offered reinstatement, all available positions shall be distributed among them without discrimination against any employee because of concerted activities, in accordance with the system of se- niority or other nondiscriminatory practices heretofore applied by the Respondent in the conduct of its business. The Respondent shall place those probationary employees, if any, for whom no employment is available after such distribution on a preferential list, with priority in accordance with such system of seniority or other nondiscriminatory practice heretofore applied by the Respondent in the conduct of its business, and thereafter offer them reinstatement as such employment becomes available and before other persons are hired for such work.? We shall further order that the Respondent make whole these em- ployees for any losses they suffered because of the Respondent's dis- crimination. However, the Board does not grant backpay for the period during which employees are on strike,' and as noted, the dis- criminatees were on strike when they were discharged. We shall therefore order that the Respondent make whole these employees for the loss of earnings they may have suffered by reason of the discrimina- tion against them by paying to each a sum of money equivalent to the amount that he would have normally earned from November 22, 1961, the date upon which the strike terminated, to the date of the offer of reinstatement or placement on a preferential hiring list, as the case may be. Such backpay shall be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company.' Earnings in one quarter shall have no effect upon the backpay liability for any other such period. We shall also order the Respondent to preserve and, upon request, make available to the Board payroll and other records necessary to determine employment rights and the amount of backpay due. As it is possible that one or more of the discriminatees might have been laid off or replaced by a "regular" employee even if the Respond- ent had not engaged in any unfair labor practices, this possibility will be taken into consideration in determining the amounts of backpay due to these employees in compliance with our Order herein. instated . We shall defer to the compliance stage of these proceedings a resolution of the issues whether employee Powell has been fully reinstated and made whole , as required by our Order herein. 7 United Butchers Abattoir, Inc, 123 NLRB 946, 959. 8 Liberty Electronic Corp , 138 NLRB 1074 9 90 NLRB 289. Interest at the rate of 6 percent per annum shall be added to the back- pay to be computed in the manner set forth in Isis Plumbing & Heating Co , 138 NLRB 716. Member Leedom, for the reasons set forth in his dissenting opinion in Isis, would not award interest on the backpay obligation. 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As this proceeding arose solely as a result of a legal dispute between the parties as to whether the Respondent could lawfully discharge probationary employees who engaged in a strike before completing their probationary period, and in the absence of an evidence of union animus by the Respondent, we shall order the Respondent to cease and desist from interfering "in any like or related manner" with the rights of its employees under the Act. See Quality Castings Company, supra. CONCLUSIONS OF LAw 1. National Seal, Division of Federal-Mogul-Bower Bearings, Inc., the corporate Respondent herein, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 171, United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3. By discharging employees because they engaged in protected concerted activity, the Respondent has engaged in discrimination with regard to the hire and tenure of employment of its employees within the meaning of Section 8 (a) (3) of the Act. 4. By the foregoing conduct, the Respondent has interfered with, re- strained, and coerced its employees in the exercise of rights guaranteed them by Section 7 of the Act, and thereby engaged in and was en- gaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Upon the above findings of fact, the stipulation of the parties, and the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent, National Seal, Di- vision of Federal-Mogul-Bower Bearings, Inc., its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in Local 171, United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, or in any other labor organization of its employees, by discriminatorily discharging, laying off, or refusing to reinstate employees because they engaged in a lawful economic strike, or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of employment, except as authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. NATIONAL SEAL, ETC. 667 (b) In any like or related manner, interfering with, restraining or coercing its employees in the exercise of their right to self -organiza- tion, to form labor organizations, to join or assist the aforesaid labor organization, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such rights may be affected by an agree- ment requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to the following named individuals immediate and full reinstatement to their former or substantially equivalent positions without prejudice to the seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay they may have suffered by reason of the discrimination against them, in the manner set forth in the section herein entitled "The Remedy" : R. Bonballion Shirley Pollard Charles Coleman Isabelle Powell (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social se- curity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due and the right of reinstatement under the terms of this Order. (c) Post at its plant in Downey, California, copies of the notice 10 attached hereto marked "Appendix." Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by the Respondent, be posted immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Twenty-first Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBER RODGERS, dissenting : The sum and substance of this case lies in the fact that five proba- tionary employees lost their jobs, not because the Respondent was guided by antiunion or other discriminatory motives, but because iu In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent acted to enforce a lawful rule of long standing. That rule required probationary employees to complete a 60-day probationary period without interruption. These five probationary employees elect- ed to remain away from work to support the Union's economic strike, and thus they interrupted their service and ran afoul of the rule. Respondent has shown that in the past, whether absences have been excused or not excused, the rule has been inexorably applied. I see nothing in the Act to prevent the Respondent from applying ics rule to these probationers. To the extent that my colleagitee are saying that this case is like the recently decided Quality Castings Company case, 139 NLRB 928, I agree with them. But, for the reasons set forth in the dissenting opinion in that case, I would have found no violation there. The same reasons compel me to believe that the complaint in this case should also be dismissed, and I would so find. See also N.L.R.B. v. Com- munity Shops, Inc., 301 F. 2d 263 (C.A. 7) ; Pittsburgh-Des Moines Steel Co. v. N.L.R.B., 284 F. 2d 74 (C.A. 9). CHAIRMAN MCCULLOCH took no part in the consideration of the above Decision and Order. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT discourage membership in Local 171, United Rub- ber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, or in any other labor organization of our employees, by discharg- ing, laying off, or refusing to reinstate employees because they have engaged in a lawful strike, or in any other manner discrimi- nating in regard to their hire or tenure of employment or any term or condition of employment, except as authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist the aforesaid labor organization, or any other labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized ROBERTO ALVARO MFG., INC. & ROBERTO ALVARO, INC. 669 in Section 8(a) (3) of the Act, as modified by the Labor-Manage- ment Reporting and Disclosure Act of 1959. WE WILL offer to the following named employees immediate and full reinstatement to their former or substantially equivalent positions, Without prejudice to their seniority or other rights and privileges : R. Bonballion Shirley Pollard Charles Coleman Isabelle Powell WE WILL make the aforementioned individuals whole for any loss of pay they may have suffered by reason of the discrimination against them. NATIONAL SEAL, DIVISION OF FEDERAL- MOGUL-BOWER BEARINGS, INC. F. mployer. Dated---------------- By------------------------------------- (Representative) (Title) NoTE.-We will notify any of the above-named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. 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. Employees may communicate directly with the Board's Regional Office, Eastern Columbia Building, 849 South Broadway, Los Angeles 14, California, Telephone No. Richmond 9-4711, Extension 1031, if they have any question concerning this notice or compliance with its provisions. Roberto Alvaro Manufacturing , Inc. and Roberto Alvaro, Inc. and Union de la Industria de Goma y Plastico de Puerto Rico, Local 3023, AFL-CIO. Cases Nos. 24-CA-1535 and 24-CA-1571. March 21, 1963 DECISION AND ORDER On October 19, 1962, Trial Examiner Ramey Donovan issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report, together with supporting briefs. 141 NLRB No. 53.