The Timken Roller Bearing Co.

TIMKEN ROLLER BEARING CO. The Timken Roller Bearing Company and Internation- al Union of Electrical, Radio and Machine Work- ers, AFL-CIO-CLC, and its Local 705. Case 8--CA-5657 December 15, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On August 13, 1970, Trial Examiner George L. Powell issued his Decision in the above-entitled proceeding, finding that Respondent had not engaged in certain unfair labor practices and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and the Charging Party filed exceptions to the Trial Examiner's Deci- sion and briefs in support of their exceptions. Respondent filed briefs in response to exceptions of the Charging Party and General Counsel. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner, and hereby orders that the complaint herein be, and it hereby is, dismissed. 273 the Respondent, the Regional Director for Region 8 of the National Labor Relations Board, herein called the Board, issued a complaint on behalf of the General Counsel of the Board on April 20, 1970, alleging violations of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (29 U.S.C., Sec. 151 et seq.), herein called the Act. In its duly filed answer Respondent, while admitting certain allegations of the complaint, denied the commission of any unfair labor practice. Pursuant to notice a trial was held before me in Canton, Ohio, where the parties were present, represented by counsel, and afforded full opportunity to be heard, examine and cross-examine witnesses, present oral argument, and file briefs. Briefs were filed by Respondent and Charging Party on June 19, 1970, and by counsel for the General Counsel on June 22, 1970. The complaint alleged that Respondent had violated Section 8(a)(1) and (3) of the Act by discriminatorily refusing to hire James J. Seldennght, on or about October 28, 1969, because he had engaged in a strike at General Electric Company for the purpose of collective bargaining thereby interfering with, restraining, and coercing its employees and discouraging membership in the Union. On the entire record 1 of evidence, my observation of the witnesses as they testified,2 and on due consideration of the briefs, I find, for the reasons hereinafter set forth, that the General Counsel has failed to establish by a preponderance of the evidence that Respondent violated the Act in the particulars alleged, and I will recommend that the complaint be dismissed in its entirety. FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. THE EMPLOYER AND THE LABOR ORGANIZATION I find as true the admitted allegations of paragraph 2 of the complaint respecting the nature and volume of business carried on by Respondent, an Ohio corporation engaged in the manufacture, sale, and distribution of roller bearings at its principal office and place of business in Canton, Ohio, and conclude therefrom that Respondent is an employer engaged in commerce within the meaning of Section 2(6) of the Act. I also find as true the admitted allegations in paragraph 4 of the complaint that the Union is a labor organization within the meaning of Section 2(5) of the Act. 11. UNFAIR LABOR PRACTICES TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE L. POWELL, Trial Examiner Upon charges filed on November 7, 1969, by International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, and its Local 705, herein called the Union or Charging Party, against the Timken Roller Bearing Company, herein called I P 3, 113 of the record is corrected to read, "I am in no way subject to the General Counsel of the Board" Respondent's counsel has called the attention of the Trial Examiner to several errors in the record The major errors will be individually corrected and nothing need be done about the James J. Seldenright, employee, was on strike at General Electric Company in Canton, Ohio. When the strike began he "stood picket duty 4 hours a week and looked for employment." He applied for a job at Respondent on October 27, 1969,3 by filling out the application for employment. He noted thereon that he was an employee of General Electric and was on strike. His testimony, on direct examination, was that after filling out the application he was interviewed by a lady as follows: remainder 2 Cf Bishop and Malco, Inc, 159 NLRB 1159, 1161 3 He had placed the date as October 28, 1969, on direct examination. 187 NLRB No. 34 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q• Would you relate what you said and what she said during the interview? underground any longer, so I quit." On February 9, 1970, he "went back to work at G.E." Paul Rinaldi, International representative of the Union, testified that Seldenright told him on November 4 that 11. .. he had applied for employment at Timken and was denied employment because he was on strike." The next day he called Parks, person-to-person, and told Parks what Seldenright had related to him [Rinaldi1. Parks told him .. they were not going to hire someone who was on strike. It was unfair to the company they were striking and I informed him that it was our position and opinion that this was a violation of the law. And he told me that he was a layman at law. As far as he was concerned, it was not a violation of the law. I then told him I would file a complaint and that was the end of the conversation." A. Well, I went in and she went over the application with me, and said that she noticed that I was on strike from General Electric. I said I was and asked if being on strike or not having a termination slip from General Electric would enter into the fact of whether or not I got a job with Timken or not, and she said that she felt it would. She asked him what he meant by a termination slip and he explained ". . . that it was a slip from General Electric stating that I had quit and that I was available for permanent employment at Timken." She then sent him on the next step of applying for a job by sending him to take the written tests. Although upon a leading question by General Counsel he testified, on direct examination, that he intended to work permanently at Timken, he testified, on cross-examination, that he never "severed his connection with G.E." He never tried to obtain a termination slip nor did he ever tell Respondent that he was severing his employment relation- ship with General Electric. After taking his examination, he was told to go home and he would be called. He testified on direct that he stopped by Parks' office on the way out. Believing the man in the office to be Parks, an admitted supervisor, he stepped into the office, ... gave him my name, told him I was from General Electric and that I was on strike. And I asked if the strike and not having the termination slip with me had anything to do with me not getting the job with the other people that took the test. He said no, that termination slip meant nothing to him. He didn't want anything to do with me until the strike was over. He said once the strike was over, if I wanted, to come back up that day or so, if they hadn't called me by then. Why I could come up and he would see what he could do about putting me to work. On cross-examination, he testified that the man told him, "He didn't want to talk about employing me as long as I was on strike." 4 Seldenright admitted, on cross-examination, that the Board agent who interviewed him told him, Timken didn't like to hire people who were out on strike because they were looking for permanent employees and since I was on strike, they didn't really feel that I would quit . . . General Electric to go to work for Timken. The agent told him that Timken did not want to hire temporary employees. Seldenright did not offer, at that time, to get a termination slip. But while still on strike Seldenright was successful in getting a job on November 7 with Larson Sewer Pipe Company at $2.36 an hour where he worked until January 23, 1970. He quit for a job paying $4.16 an hour at the Midvale Coal Company but after 2 1/2 days he ". . . had had enough of going down in the mine . . . couldn't work The Respondent's Case Mrs. Wingert, who, according to Seldenright, gave him the test, could not remember Seldenright. She testified that she does not discuss wages with applicants (Seldenright said she did) and that it would be "impossible" to predict that he could reach any given state in employment within a specified period under the contract (Seldenright said she did predict that within "6 to 9 months I should have worked up into the average job . . . [of ] . . . about [$3.50] an hour.") and that she did not recall any conversation with anybody concerning a separation slip. She testified that she has no authority to decide that an applicant is unqualified and to tell him there is no job for him. She wrote and circled "on strike" on the application "to call attention to the fact that I felt the man was not looking for permanent employment." She wrote this on the application when Seldenright told her he was on strike after he had filled out the application. Miss Louanne Gibbs testified that she marked the scores on Seldenright's tests (which he took after seeing Mrs. Wingert); that those who failed the tests were supposed to see Kauffman or Kendall; that there was nothing routine about seeing Parks; that she didn't recall giving Seldenright any instructions at all; and that she never had any conversation with anybody but only told them to go someplace if they failed the test. Seldenright had not failed. His scores were better than average. Floyd Kauffman testified that his duties were to conduct a final interview with prospective employees and decide which jobs they should take depending on what was available. According to his testimony, the office Seldenright identified as Parks' was his office. In this respect, I find Seldenright was incorrect. Although not dispositive of credibility, it does cast some doubt on Seldennght's reliability and credibility inasmuch as it is overreaching to claim a supervisor told him something which in fact was told by an employee. Kauffman credibly testified that the Respondent's policy was to hire "permanent-type" employees and that Respon- dent is "interested in regular employees who plan to stay with us." The words "on strike" would indicate to him that the applicant might not be a permanent employee although 4 At the trial, Seldennght identified this man to be Floyd Kauffman, an case also shows that Seldennght went to Kauffman's office and not to "employment interviewer," and not Supervisor Parks The testimony in the Parks' This error by Seldennght is unexplainable TIMKEN ROLLER BEARING CO. he would not come to that conclusion without interviewing the person. He kept Seldenright's application until the next day expecting him to report but he did not. If Seldenright had said, "I am terminating my connection with G. E." he would have hired him. Robert Parks, assistant personnel director, credibly testified that after he had been asked [by Rinaldi] if he would hire a person on strike he told [Rinaldi ] "... that it would be an unfair condition as far as the Timken Roller Bearing Company is concerned because of the extreme cost of hiring an employee and the permanent nature not being decided. [The applicant] would not be . . . permanent .... (Rinaldi had denied ever talking about temporary or permanent employment.) He went on to testify credibly that Respondent did not consider hiring a person who would remain for a short period of time. But a striker who signified that he was terminating or was going to terminate his employment with the struck employer, if otherwise qualified, would be hired. George E. Arris, executive assistant, corporate services, credibly testified that the policy of Respondent is to hire permanent employees only and that he told the Board agent that if the applicant for employment could produce evidence that he had severed his employment with the struck employer and was looking for permanent employ- ment he would be hired if otherwise qualified. David Wirsching, corporate personnel director, credibly testified that Respondent seeks permanent employees and . . if an employee evidences to us that he has some foreseeable limitation on his employment, we would more than likely question his intentions to stay with us." He said he reviewed the subject of turnover in employment in September with the several personnel managers of the plants of Respondent. At that time, they discussed the probability that a striker, student, housewife, and school teacher would turn out to be a temporary employee rather than a permanent one and that those who interview prospective employees should try to screen out temporary employees. Respondent introduced Exhibit 3, by Wirsching, which set the costs of hiring labor grade 2 employees at $350.00 and labor grade 5 employees at $418.00. How these costs were arrived at was thoroughly explained. Wirsching also credibly testified that the Board agent was asked if Seldenright would consider permanent employ- ment and when he did not reply, John G. Ketterer, counsel for Respondent, told him that " ... if Seldenright would come to us now and say, `I want a permanent job,' we are sure that he would be hired." Ketterer also asked the Board agent, "Would Seldennght accept a job with us if we offered it to him?" and the Board agent "indicated in all probability he would not." Finally Respondent introduced its present collective- bargaining agreement with the Steel Workers. Discussion and Conclusions This is a case of an employee presently on strike applying for employment at another employer and is not to be 5 Seldennght's admission that the Board agent told him Respondent only wanted to hire permanent employees and his refusal to ask thereafter 275 confused with the case of an employee who at sometime had struck and the employer refused to hire him because of this in order not to have an employee who would exercise his rights under Section 7 of the Act. The evidence of the Respondent is that it had an economic policy not to hire temporary employees. It wanted permanent employees. It considered a person on strike applying for employment as one applying for temporary employment. There is no union animus in this case, and this belief is not unlawful. Mrs. Wingert, who interviewed Seldenright, marked "on strike" on the application to signify that she believed he wanted only temporary employment. Seldenright never disabused anyone of this belief. I can only find that he wanted to enjoy the rights of a striking employee to return to his employer when the strike ended and at the same time work during the strike at Respondent. Although, on a leading question by the General Counsel, he testified he intended to work permanently at Respondent he never conveyed that impression to Respondent. He never told Respondent that he wanted permanent work. His apphca- tion showed that he still worked for General Electric. He testified, on cross-examination, that he never severed his employment with General Electric. He never told Respon- dent that he had severed or was severing his employment or that he wanted to change jobs. Rather, he put the case in a hypothetical manner and questioned would he be hired if he submitted proof of a termination slip. His very actions of working for two other employers before returning to General Electric when the strike ended tends to show his intention was to work on a temporary basis. There is nothing wrong with a striker working for others during a strike, but, so long as he considers himself still a striker and not a former employee of the struck employer, he is only seeking temporary employment. True, he could change his mind later on and stay with the second employer after the strike ended but this does not change the fact that he was only applying for temporary work. If the hiring employer was only hiring permanent employees it may refuse to hire one on strike without violating the Act. Seldenright told Respondent that he was striking General Electric which warned Respondent that he had at least a mental reservation to return to General Electric. Respon- dent did no more than heed the warning. I find that the General Counsel has not sustained his burden of proof that Seldenright applied for a permanent job and was not hired because he was on strike.5 Accordingly, I will recommend that the complaint be dismissed in its entirety. CONCLUSIONS OF LAW 1. The Timken Roller Bearing Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Electrical , Radio and Ma- chine Workers, AFL-CIO-CLC, and its Local 705, is a labor organization within the meaning of Section 2 (5) of the Act. for permanent employment is further evidence that he was never intending to work for Respondent except during the stoke 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The refusal to hire James J. Seldenright was not to discourage membership in the Union, but was based on economic j udgment free of union considerations. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, it is recommended that the complaint be dismissed in its entirety.