General Electric Co.

372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Electric Company (Coshocton, Ohio Plant) and United Steelworkers of America, AFL-CIO. Case 8-CA-5834 September 27, 1971 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On May 25, 1971, Trial Examiner Fannie M. Boyls issued her Decision in the above-entitled case, finding that the Respondent had not engaged in certain unfair labor practices alleged in the complaint, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and the Charging Party filed timely exceptions to the Trial Examiner's Decision and supporting briefs and the Respondent filed a brief in support of the Trial Examiner's Decision. 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 be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE FANNIE M. BOYLS, Trial Examiner: This case, initiated by a charge filed on April 24, 1970, and a complaint issued on August 19, 1970, was tried before me in Coshocton, Ohio, on January 20, 1971. The complaint alleged and Respon- dent's answer denied that Respondent had violated Section 8(a)(1) of the Act by laying off eight unrepresented office clerical employees during the course of a strike called by the Union representing a production and maintenance unit of Respondent's employees because such office clerical employees refused to perform work normally done by the I On motion of the General Counsel during the course of the hearing, the complaint was amended to delete from the complaint the name of one striking employees.] Subsequent to the hearing the General Counsel, the Charging Party, and Respondent filed helpful beefs. Upon the entire record in this case and from my observation of the witnesses, and after carefully considering the briefs, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a New York corporation having plants in various states of the United States, including one in Coshocton, Ohio, which is the only plant here involved. At its Coshocton plant Respondent manufactures plastic laminates and in connection therewith it annually ships products valued in excess of $50,000 from its plant directly to points located outside the State of Ohio. On the basis of these admitted facts, I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. ii. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America, AFL-CIO, the Charg- ing Party herein , is admittedly a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICE ALLEGED A. Issue Presented The sole issue here involved is whether an employer may lawfully lay off nonunit unrepresented employees for the period of an economic strike by represented employees because the nonunit employees refuse to perform work normally performed by the striking employees. B. The Evidentiary Facts In October 1969 Respondent employed approximately 1,225 people , of whom about 846 were production and maintenance employees represented by United Steelwork- ers of America, AFL-CIO, Local 4377, herein called the Union . Two employees were represented by International Association of Machinists and Aerospace Workers, Local Lodge 1437, and three employees were represented by International Union of Operating Engineers Local Union No. 89. The remainder of the 1,225 were supervisory, managerial , marketing, and office clerical personnel and were unrepresented . About 70 or 71 of this unrepresented group consisted of office clerical employees-the category of employees here in issue. In anticipation of a long strike by the Union because of inability to reach agreement on the terms of a union contract to succeed the one expiring on October 26, 1969, the office clerical employees were informed by manage- ment, in group meetings of the employees as well as by a letter dated October 24, 1969, that Respondent intended to operate its plant during the strike and that each employee would be expected to perform whatever work to which he might be assigned. of these employees, Reta Chapman No evidence was adduced with respect to this employee and the motion to amend was granted 193 NLRB No. 56 GENERAL ELECTRIC COMPANY The anticipated strike was called on October 24, 1970, as the result of exhausted grievances and continued after the expiration of the bargaining agreement until a new agreement was reached on February 4, 1970. Management officials had determined to continue operating to the extent that it was possible during the strike in order to minimize the long-term loss of customers and to provide as much work as possible for the nonunit personnel, most of whose work would necessarily diminish or disappear with a continuing lack of production work. To accomplish these ends, it was decided that the supervisory and management personnel , the salesmen , and the office clerical employees would have to participate to some extent in getting out production. Management representatives believed that office clerical employees in general would prefer not to perform the production work of the strikers either because of a reluctance to hurt the strikers ' cause or because they considered production work a less agreeable type of work than office clerical work . Management believed that a morale problem would arise if some but not all of the office clerical employees were required to do strike -bound work. It was accordingly decided that work schedules would be made up , providing that each office clerical employee take her turn at production work at some time during the strike. The work of some of the office clerical employees was closely related to production work and was quickly affected by the curtailment of production . Some of the office clericals, however , (including three-Bantum, Sees, and Gross-named in the complaint) could have kept busy throughout the strike performing solely their own regular type of work . Management , nevertheless , decided that it would be more fair to the office clerical employees as a group and improve their morale if all had to take their turn at production work. Respondent's position was explained to each of the approximately 70 office clericals before she was actually assigned to production work . Each was told that work schedules would be prepared , indicating as to each when she would be expected to come to work dressed for production work . Some were scheduled to do production work soon after the strike started and others not for several weeks thereafter. Each of the seven office clericals here in issue voiced an objection to performing production work . Janice Bantum explained that her husband was in the bargaining unit and she did not think it was fair for her to do production work while he was on the picket line. Sylvia Sees, after talking to her husband about the matter , told her supervisor that both she and her husband felt that she should not do the production work and she refused to do it . Virgie Holder refused to do the production work because she "was in sympathy with the hourly workers" and "didn 't want to do this strike-bound work." Evelyn Vickers, in explaining her refusal to do production work , told her supervisor: "My husband didn't want me to and that also I worked with the production workers and I wouldn 't feel right going in and possibly doing their work and having to face them " Bonnie Bryant refused to do production work , as she informed her supervisor, because her husband was a union member and 2 With respect to Bryant , Respondent contended that she was only a 373 would be on the picket line. Pauline Gross was in the group of 17 accounting department employees to whom her supervisor explained Respondent's plan to operate during the strike and when he asked the group if anyone then present would not want to work "in the plant" (as distinguished from the office) after the strike commenced, she replied, "I believe I won't be working in the plant" and she thereafter adhered to her determination when assigned to production work. It was stipulated at the hearing that another employee, June Cramer, if called, would testify substantially as the other employees mentioned above (except Bryant) with respect to the circumstances of her layoff following her refusal to do production work.2 When the turn of each of the seven employees for performing production work was reached on Respondent's work schedules and each refused to do that type of work, she was laid off for the duration of the strike . Each appears to have been willing to perform whatever office clerical work might become available for her but Respondent was unwilling to have her continue to do that work unless she also performed the production work allotted to her. At the conclusion of the strike all of them returned to their office clerical work except Sylvia Sees, who had obtained other employment during the strike and did not wish to return, and Bonnie Bryant, the temporary employee whose employment by Respondent had terminated during the strike. C. Analysis and Conclusions The answer to the question here posed requires a balancing of the conflicting rights of the employer to carry on his business during the course of an economic strike and the rights of employees outside the striking umt to refrain from performing the strikers' work. I have no doubt that a refusal by employees to perform strikers' work, like a refusal to cross a picket line in the performance of their jobs, "is literally for `mutual aid or protection,' as well as to assist a labor organization within the meaning of Section 7." Redwing Carriers, Inc., 137 NLRB 1545, modifying 130 NLRB 1208, affd . sub nom. Teamsters, etc., Local Union No. 79 v. N.L.R.B., 325 F.2d 1011 (C.A.D.C.), cert. denied 377 U.S. 905; Southern Greyhound Lines, 169 NLRB 627, enfd. 426 F.2d 1299 (C.A. 5). Their employer may not, therefore, punish or retaliate against them for refusing to do the strikers' work. The employer, on the other hand , has a right to attempt to carry on his business in the face of a strike and may employ anyone he can obtain to perform the strikers' work. It seems clear from the record that Respondent's decision to rotate all office clerical employees between office clerical duties and production work was motivated by legitimate business considerations and I find no basis for inferring that it layoff for the duration of the strike of all office clerical employees who refused, when their turn came, to perform strikers' work was motivated by any desire to punish or retaliate against employees who evinced sympa- thy for the strikers' cause. Respondent did not discharge the noncooperating office clericals as the employer did in Cooper Thermometer, 154 NLRB 502; nor did it layoff the temporary employee and that her work was completed dunng the strike 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees for a period beyond the duration of the strike, as the employer did in Montana-Dakota Utilities Co., 189 NLRB No. I11. It merely treated them as sympathy stnkers who by their own choice elected to stay away from work for the duration of the strike rather than assist Respondent in performing whatever duties might be assigned to them in order to minimize the effect of the strike on Respondent's business. The General Counsel points out that there was some office clerical work available for each of the seven complainants subsequent to their layoff and that three of them, if their type of work had not been divided between the office clericals, could have kept busy at their own work throughout the strike. He argues that Respondent could not lawfully refuse to permit these employees to perform such work if and when it became available dunng the strike. Respondent states, on the other hand, that the performance of production work made more clerical work available and that but for its efforts to keep production going in the manner it did, some types of clerical work would have dried up immediately and other types would have been substantially reduced during the strike, making it impossi- ble for Respondent to furnish the amount of office clerical work it did provide during the strike. It argues that it was a reasonable business judgment by Respondent's manage- ment that any attempt to favor some employees by permitting them to restrict their work solely to office clerical duties and avoid production work would necessari- ly cause discontent, claims of unfairness, loss of morale, and perhaps eventually loss of production through the accumulation of similar requests by other office clerical employees. I find that Respondent, in dividing the office clerical work insofar as practicable among all the office clerical employees who were willing to take their turn at assisting with production work, was acting in the interest of preserving the efficient operation of its business during the strike and that there were "legitimate and substantial business justifications" for its action, which were para- mount in importance to any possible restraining effect such action may have had on the exercise by office clerical employees of their Section 7 rights. Cf. N.L.R.B. v. Great Dane Trailers, 388 U.S. 26, 34. Those office clericals who refused to do the work assigned to them, like employees who refuse to cross a picket line to work, were placing themselves in the position of sympathy strikers and were entitled to no more protection than the strikers themselves. N.L.R.B. v. Southern Greyhound Lines, 426 F.2d 1299, 1301 (C.A. 5); G & H Towing Company, 168 NLRB 589, 600; Gardner-Denver Company, 58 NLRB 81, 82-83. Although the precise question here in issue was not before the Board in The Cooper Thermometer Company, 154 NLRB 502, the Board there indicated that it would reach the conclusion I have reached herein if faced with substantially the same factual situation. In the Cooper case an office clerical employee, who normally worked across the street from production workers of her employer, was discharged because she refused to cross the picket line of the striking production workers to perform production work. The Board found that the discharge of the clerical employee, Kraucalis, for refusing to do the production work and the refusal to take her back at the conclusion of the strike despite the fact that no replacement had been obtained for her during the strike, was a violation of Section 8(a)(1) of the statute. The Board added, however: We do not mean to intimate by what has been said above that the Respondent was obliged to retain Kraucalis in a pay status notwithstanding her refusal to perform the production work it chose to assign to her. If in the circumstances the Respondent did not wish to continue Kraucalis during the period of the stnke in an exclusively clerical position, or to lay her off if the strike temporarily eliminated the need for her clerical services, it was free to treat her as a stnker-a status which in legal effect, we find, she, herself, assumed when she refused to comply with the Respondent's instruction to cross the picket line to do strikers' work. But the Respondent could not, we hold, punish her for exercising her statutory rights by permanently severing her employment. The General Counsel in his brief points out certain factual distinctions between this case and the Cooper case on the basis of which he argues that the dictum in Cooper is inapplicable to the present situation. Although I believe the distinctions are without legal significance, I would nevertheless reach the same conclusion I have reached in this case independently of the above-quoted rationale in Cooper. CONCLUSION OF LAW On the basis of the facts set forth above and the entire record, I find that Respondent did not violate Section 8(a)(1) of the Act in laying off for the duration of the strike those office clerical employees who refused to perform the stnkers' work which was assigned to them. There is accordingly issued the following recommended: ORDER It is hereby ordered that the complaint herein be, and it hereby is, dismissed.