Chatham Manufacturing Co.

32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Chatham Manufacturing Company and Textile Workers Union of America, AFL-CIO, CLC. Case 11-CA-3348 June 26, 1969 DECISION AND ORDER B-v CHAIRMAN MCCLLLOCH AND MEMBERS BROWN AND JENKINS Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondent, Chatham Manufacturing Company, Elkin, North Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE On October 10, 1968, Trial Examiner Melvin Pollack issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. 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 brief, 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 In concluding that the April 16, 1967, strike was an unfair labor practice strike and that Respondent's subsequent refusal to reinstate the strikers upon their unconditional application was violative of Sec. 8(a)(3) and (I) of the Act, the Trial Examiner noted and relied on the fact the the union leaflets, the exchange of correspondence between the Union and the Respondent, and the picket signs displayed by pickets , all of which transpired within the 10(b) period , established that the Union's strike was in protest against Respondent's failure to end and remedy previous unfair labor practices which occurred in September 1966. Respondent's conduct in September 1966, had been found to be unfair labor practices in a prior decision of this Board and is cited at 172 NLRB No 219 Accordingly, the Trial Examiner could properly take judicial notice of the Board's prior decision in determining whether the strike and other conduct which occurred within the 10(b) period was in fact in protest over the Respondent's prior conduct As so utilized, in the opinion of Member Jenkins, it sheds additional light on the motivation for the Union's conduct within the 10(b) period, and establishes that the Union 's characterization of the Employer's prior conduct was essentially correct and supported by an unfair labor practice finding by this Board As Member Jenkins so interprets the Trial Examiner's decision, he finds it unnecessary to consider or adopt the Trial Examiner 's further statement, that Sec. 10(b) "does not bar an unfair labor practice finding based upon events outside the 6-month limitation period where, as here, timely charges with respect to those events were filed , litigated , and adjudicated Brown and Root, Inc , 99 NLRB 1031, 1035-1036, enfd 203 F 2d 139 (C.A 8) " Cf Bryan Mfg. Co, 362 U.S. 411, 416 MELVIN POLLACK, Trial Examiner: This case was heard on April 29, 1968, at Yadkinville, North Carolina, pursuant to a complaint issued March 20, 1968, upon charges filed on June 26, 1967, July 27, 1967, and January 26, 1968.' The issue presented is whether Respondent, Chatham Manufacturing Company, violated Section 8(a)(3) and (1) of the National Labor Relations Act, as amended, by refusing to reinstate 18 strikers upon their unconditional offer to return to work. General Counsel and Respondent have filed briefs.2 Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is a North Carolina corporation engaged to the manufacture of textile products at its plant in Elkin, North Carolina. Respondent's annual interstate sales exceed $50,000. I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Textile Workers Union of America , AFL-CIO, CLC, herein called the Union , is a labor organization within the meaning of Section 2(5) of the Act. Ill. THE ALLEGED UNFAIR LABOR PRACTICES A. Sequence of Events Cases 11-CA-3092, 3134, and 3152 were tried between February 27 and March 10, 1967, on charges that Respondent had failed to bargain in good faith with the Union following its certification on August 19, 1965, as the collective-bargaining representative of the production and maintenance employees at the Elkin plant; that it had discriminatorily discharged 5 union supporters on March 7, 1966; and that it had discriminatorily refused to reinstate 13 employees who had participated in a strike on September 26 and 27, 1966, caused by Respondent's unfair labor practices. A union leaflet issued on February 21, 1967, advised the employees that the Board hearing would start on Monday, February 27, and closed as 'Pursuant to the General Counsel's motion at the hearing , I ruled that my decision in this case would be deferred until the Board issued its decision in Chatham Manufacturing Company, Cases II-CA-3092, 3134, and 3152. The Board 's Decision in those cases was issued on September 9, 1968(172 NLRB No 219). 'Respondent also filed proposed findings and conclusions which are accepted only to the extent consistent herewith 177 NLRB No. 18 CHATHAM MANUFACTURING CO. 33 follows: Note of reminder: Even after the hearing is over, we may find that the company is still violating the law. If this happens, we must be ready to put company on notice, that unless it lives up to its legal obligations, we will strike in protest of its violations, and will strike again and again if it is necessary to make it obey the law. And in this NLRB stands behind us 100 per cent. (SAVE YOUR MONEY). Following the hearing, the Union issued another leaflet on March 15, 1967, reading in part: DECISION IN 2 YEARS In the two weeks of hearing, the company introduced reams of papers into evidence. The more papers the Federal trial examiner has to go over the longer it would take for him to hand down his decision. Any delay in getting the trial examiner's decision plays into the company's hands. The attorneys were given 45 days instead of the usual 35 days to submit to the Federal trial examiner written arguments in support of their positions. The trial examiner will extend this period if it is needed. It may be 90 days (or three months) before the written arguments are presented to the trial examiner and he can begin studying the testimony presented at the hearing. It will probably take another 90 days before the trial examiner studies the case and writes his decision. We don't expect the decision for at least 6 months. And after that we are sure the company will appeal this decision to Washington and tie up the case for another 6 months and following that they most likely will appeal to the 4th Circuit Court of Appeals in Richmond, tieing it up for another year. In all, with the various appeals, it may take two years before the company is ordered to put back on the job, with full pay, the 13 strikers and the 5 twister operators, and to start bargaining with the union in good faith. DO WE WAIT OR STRIKE We have a choice: Either we wait for two years before the company exhausts its last appeal, or we have a legal unfair labor practice strike to force the company to reinstate the illegally discharged employees and to bargain with the union in good faith. We feel that Chatham's record of law violations means that they will break the law again and again to destroy our union. We feel that we must strike in protest of the company's unfair labor practices to protect our rights, and to get justice for the fired union supporters. Another leaflet issued on March 22, 1967, included the following passage: We have waited too long. We have given them every chance to obey the law. Maybe that is too much to expect from them. Now we have no choice but to get tough. We know that words will not put the eighteen fired friends back on the job. Nor will reason make Chatham bargain with us in good faith on the contract. Let's face it - to make them do right we must STRIKE. A leaflet issued on March 31, 1967, exhorted the employees to "Get ready! We have been talking openly about striking in protest against Chatham's unfair labor practices. Soon we'll stop talking and start forming a picket line." The Union thereafter called a "Mass Meeting" for Sunday, April 9, 1967. After this meeting, the Union sent a letter dated April 10, 1967, to Personnel Director R. G. Chatham, in which it "respectfully urged" Respondent to remedy its unfair labor practices "by making it known to the employees that they are free to engage in protected concerted activities as the Act provides," by reinstating and making whole for all losses the five employees discharged in March 1966 and the 13 strikers refused reinstatement in September 1967, and by ceasing to make "unilateral changes and engaging in bad faith bargaining." The letter closed as follows: the employees are greatly disturbed and distressed by the lack of remedies for the obvious and numerous unfair labor practices. They are anxious to get immediate assurance that you intend to make remedies for these unfair labor practices. We respectfully request a letter from you stating your intention to correct the wrongs your company's unfair labor practices have created. If we do not receive an answer from you by 5 p.m. on Thursday, April 13, 1967, indicating that you are willing to remedy the unfair labor practices, then we will assume that you intend to continue your unfair labor practices and we will have to take other steps to insure that employees' rights as defined in the Act are safeguarded. Personnel Director Chatham replied by letter dated April 13, 1967, stating that he had "deliberately delayed" answering the Union's letter "as I do not like the idea of being threatened nor do I intend to be coerced by you." He described the Union's letter "as nothing more than a self-serving declaration preparatory to some action by the Union such as a strike or new allegations of alleged unfair labor practices," and termed "unfounded" the Union's "repeated assertions of unfair labor practices." At a "Mass Meeting" on Sunday, April 16, 1967, the employees present voted to strike. Picket lines were formed that night at the plant gates. The picket signs bore such captions as "UNFAIR LABOR PRACTICE STRIKE," "CHATHAM OBEY THE LAW," "STOP UNFAIR LABOR PRACTICES," "BARGAIN WITH OUR UNION." On April 22, the Union sent Respondent a telegram to the effect that the strikers would return to work "without conditions." The strikers thereafter reported for work on their regular shifts on April 23 and 24. The complaint alleges that 18 of the several hundred strikers were refused reinstatement to their former or substantially equivalent positions of employment. The facts concerning these 18 strikers may be summarized as follows: Minnie Day and Frances Sprinkle had worked on the A (regular) shift. They were advised on April 24 that they had been replaced during the strike by girls from the B and C shifts. They were offered jobs on the second or third shifts and chose to work on the second shift. Day, a regular hand before the strike, some 9 or 10 weeks later was offered and accepted work as a "spare hand" on the A shift. Day was returned to her prestrike job during the third week of January 1968. Sprinkle was still working on the second shift at the time of the hearing in this case. Barry Mounce was rehired on April 24 as a "doffer" and reinstated to his prestrike job on May 8, 1967. Harold Dean Jackson, whose job had been to make up cardboard boxes, was refused reinstatement on April 24 and was not rehired until March 18, 1968, at which time he was given a shipping clerk job which involved lifting 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and moving heavy boxes. Lucille Holbrook, who worked as an IBM verifier doing file work before the strike , was replaced while out on stirke and was rehired as a billing clerk on April 8, 1968. She testified that this job required her to type continuously for 8 hours and was "tiresome" work. Grant Lomax, a stock cutter operator , was rehired on April 8, 1968, to operate both a stock cutter and a slasher.' Lomax's foreman told him that "eventually" there would be two men to do this combined work "when they got it set up right." Respondent has refused work to strikers Charles A. Chipman, Sylvia Anne Hoots, William S. Johnson, Robert Lee St. John , James Wendell Watson, Edgar Spainhour, Lester Bauguess , Clyde C. Goins, James S. Hairston , Jimmy L. Mendenhall, Roy Lee Sparks, and Turner Swaim . Respondent's amended answer to the complaint alleges that Goins, Hairston, Mendenhall, Sparks, Spainhour, and Swaim were denied reinstatement because they engaged in unlawful conduct during the strike, and that St . John was refused reinstatement because of a felony conviction . Respondent introduced no evidence in support of these allegations. B. Analysis and Conclusions In its September 9, 1968 decision in Cases I I-CA-3092, 3134, and 3152 (fn. 1, supra), the Board found that Respondent did not bargain in good faith with the Union after its certification on August 19, 1965, that it discriminatorily discharged five Union supporters on March 7, 1966, and that it discriminatorily refused to reinstate employees who had engaged in a strike on September 26 and 27, 1966, .provoked by the foregoing unfair labor practices. It is clear from the Union's leaflets distributed between February 21 and March 31, 1967, the exchange of letters between the Union and Respondent on April 10 and 13, 1967, and the signs carried by the Union pickets, that the strike which began on April 16, 1967, was undertaken in protest against Respondent's failure to end and remedy the foregoing unfair labor practices. Respondent contends, however, that as these unfair labor practices occurred more than 6 months before the filing of the charges in this case, Section 10(b) of the Act bars their use as a basis for a finding that the strike, and hence that the strikers, even if replaced during the strike, were entitled to reinstatement upon their unconditional offer to return to work.' The Board has held, contrary to Respondent's position, that the purpose of the 10(b) proviso "was merely to discourage dilatory filing of charges" and therefore that it does not bar an unfair labor practice finding based upon events outside the 6-month limitation period where, as here, timely charges with respect to those events were filed, litigated, and adjudicated. Brown and Root, Inc., 99 NLRB 1031, 1035-1036, enfd. 203 F.2d 139 (C.A. 8).` I therefore find that the strike which began on April 16, 1967, was an unfair labor strike and that the strikers were presumptively entitled to reinstatement to their jobs when they unconditionally sought to return to work on April 23 and 24, 1967.° As Respondent introduced no evidence to justify its failure to reinstate the 18 alleged discriminatees to their prestrike jobs when they unconditionally offered to return to work on or about April 24, 1967, I find that 'The slasher "slices" bales of cotton before they are cut up further by the stock cutter. it thereby violated Section 8(a)(3) and (1) of the Act.7 Conclusions of Law 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The strike which began on April 16, 1967, was caused by Respondent's unfair labor practices. 4. Respondent violated Section 8(a)(3) and (1) of the Act by refusing to reinstate the 18 unfair labor practice strikers named in paragraph 9 of the complaint. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. V. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that Respondent discriminatorily refused reinstatement to 18 unfair labor practice strikers. I shall therefore recommend that, insofar as Respondent has not already taken such action, it shall offer them immediate and full reinstatement to their former or substantially equivalent positions at the Elkin plant,' and it shall make them whole for any loss of pay suffered because of the discrimination against them. The loss of pay shall be computed in accordance with F. W. Woolworth Company, 90 NLRB 289, with interest added thereto in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. RECOMMENDED ORDER Chatham Manufacturing Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Textile Workers Union of America, AFL-CIO, CLC, or in any other labor Sec. 10(b) provides in pertinent part that "no complaint shall issue based upon any unfair labor practice occurring more than 6 months prior to the filing of the charge with the Board " IN L R.B. v. Ritchie Manufacturing Co , 354 F 2d 90 (C.A. 8), and other cases cited by Respondent in support of its position, are not in point as the events there in question were not covered by timely charges. 'As the Board's unfair labor practice findings in Cases 11-CA-3092, 3134, and 3152 are determinative of the status of the strikers in this case, I find without merit Respondent's contention that this case improperly requires it to relitigate the unfair labor practices alleged in those cases 'Respondent's payment of a small wage premium to second and third shift employees confirms what I consider a matter of common knowledge, that work on a first or regular shift is ordinarily preferred to work outside the normal working day . I therefore find that Respondent did not reinstate Day and Sprinkle to their prestrike jobs by giving them work on the second shift 'Barry Mounce was reinstated to his former job about May 8 , 1967, and Minnie Day was reinstated to her former job on the day shift during the third week of January 1968. At the time of the hearing, Francis D. Sprinkle was still working on the second rather than the first shift, Harold Dean Jackson and Lucille Holbrook were working on more arduous or fatiguing jobs, and Grant Lomax was operating two machines rather than one machine as he had before the strike . Sprinkle, Jackson, Holbrook, and Lomax are therefore entitled to reinstatement offers as are the 12 discriminatees who have admittedly not been offered reinstatement since they offered unconditionally to return to their jobs on or about April 24, 1967 CHATHAM MANUFACTURING CO. organization , by refusing reinstatement to unfair labor practice strikers upon their unconditional request, or by unlawfully discriminating against its employees in any other manner in regard to their hire or tenure of employment. (b) In any other manner , interfering with , restraining, or coercing its employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer the individuals named in paragraph 9 of the complaint immediate reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges ,' and make them whole for any loss of earnings suffered by reason of the discrimination against them, as provided in "The Remedy" section of this Decision. (b) Notify the above employees if 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 Universal Military Training and Service Act , as amended , after discharge from the Armed Forces. (c) 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 records necessary to analyze the amounts of backpay and other benefits due under the terms of this Recommended Order. (d) Post at its plant in Elkin , North Carolina, copies of the attached notice marked "Appendix .""' Copies of said notice, on forms provided by the Regional Director for Region 11 , shall, after being duly signed by the Respondent's representative, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter , in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced , or covered by any other material. (e) Notify the Regional Director for Region 11, in writing, within 10 days from the date of this Decision, what steps have been taken to comply herewith " No offer of reinstatement need be made to Minnie Day or Barry Mounce as they already have been reinstated In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice . If the Board's Order is enforced by a decree of a United States Court of Appeals, the notice will be further amended by the substitution of the words "a Decree of the United States Court of Appeals Enforcing an Order" for the words "a Decision and Order." In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region H, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE To ALL EMPLOYEES 35 Pursuant to the Recommended Order of a Trial Examiner 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 Textile Workers Union of America , AFL-CIO, CLC, or any other labor organization , by refusing reinstatement to unfair labor practice strikers upon their unconditional request, or by unlawfully discriminating in any other manner in regard to our employees' hire, or tenure of employment. WE WILL offer the following named unfair labor practice strikers immediate and full and unconditional reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights, privileges or working conditions , and make them, Minnie Day, and Barry Mounce whole for any loss of pay each may have suffered as a result of the discrimination against them: Charles A. Chipman Lester Bauguess Lucille Holbrook Clyde C. Goins Sylvia Anne Hoots James S. Hairston Harold Dean Jackson Jimmy L. Mindenhall Willeam S . Johnson Roy Lee Sparks Grant Lomax Turner Swaim Robert Lee St. John Francis D. Sprinkle James Wendell Watson Edgar Spainhour All our employees have the right to join or support any labor union , or not to do so. We will not in any manner interfere with their exercise of this right. Dated By CHATHAM MANUFACTURING COMPANY (Employer) (Representative) (Title) Note: Notify the above-named employees if 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, 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 1624 Wachovia Building, 301 North Maine Street, Winston-Salem North Carolina 27101, Telephone 919-723-2303.