Pacific Grinding Wheel Co., Inc.

PACIFIC GRINDING WHEEL CO. Pacific Grinding Wheel Co., Inc. and Marjorie M. Ingram. Case 19-CA-7156 February 11, 1975 DECISION AND ORDER BY ACTING CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On September 27, 1974, Administrative Law Judge William J. Pannier III issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Rel4tions Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order. 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 Administrative Law Judge and hereby orders that Pacific Grinding Wheel Co., Inc., Marysville, Washington, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for the Administrative Law Judge's notice. i Respondent excepts, inter aha, to the Administrative Law Judge's consideration of General Counsel's brief on grounds it allegedly never received a copy thereof. The record establishes that the tendered issues and General Counsel's theory of the case were fully elucidated during the course of the hearing. Moreover, Respondent has briefed to us its theory of the case, and we have considered de novo the entire record and the relevant legal precedents to the extent they are raised by Respondent's exceptions. Under these circumstances , we find no prejudicial error could have resulted from the Administrative Law Judge's consideration of the General Counsel's brief. Under the provisions of Sec. 102.45(b) of the Board's Rules and Regulations, Series 8, as amended, the record at this stage of the proceeding does not include briefs filed with an Administrative Law Judge unless resubmitted to us by the parties . However, in accordance with customary practice, briefs filed by the parties with the Administrative Law Judge are included in the formal file. We administratively note that the brief submitted herein by General Counsel to the Administrative Law Judge, found within the formal file, contains an attached "Certificate of Service" which asserts that a copy of the brief was served on Respondent and on its counsel, inter ahos, by "first-class United States mail, postage prepaid." Such certificate of service constitutes proof of service under the laws of the State of Washington (Rule 5(bX2), Washington, Civil Rules for Supehor Court ( 1973)); and, for that reason, also constitutes proof of service before the Board. Sec. 102. 112, Rules and Regulations , Series 8, as amended. Y In adopting the Administrative Law Judge's conclusions we do so solely on the grounds that Respondent discharged Ingram for refusing to cross the picket line at Respondent's place of business. To the extent Respondent argues Ingram was replaced and not discharged, there is no showing in the record that she was ever replaced. APPENDIX 529 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act, as amended, gives all employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a representa- tive they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activity except to the extent that the employees' bargaining representative and employer have a collective-bargaining agreement which imposes a lawful requirement that employees become union members. WE WILL NOT discharge any employee for assisting a union by refusing to work during a lawful strike engaged in by our employees. WE WILL NOT in any ' like or related manner interfere with any of your rights set forth above which are guaranteed by the National Labor Relations Act. WE WILL offer Marjorie M. Ingram immediate and full reinstatement to her former position, dismissing, if necessary, anyone who may have been hired or retained to perform the work which she had been performing prior to the time that she began respecting the Union's picket line on June 10 or, if her former position does not exist, to a substantially equivalent position, without preju- dice to her seniority or other rights and privileges, and make her whole for any loss of pay she may have suffered as the result of our discrimination. PACIFIC GRINDING WHEEL CO., INC. DECISION STATEMENT OF THE CASE WILLIAM J. PANNIER III, Administrative Law Judge: This case was heard before me at Seattle, Washington, on August 20, 1974,1 pursuant to a complaint and notice of hearing issued on July 30 by the Regional Director for Region 19 of the National Labor Relations Board. The complaint was based upon an unfair labor practice charge i Unless otherwise stated, all dates occurred in 1974. 216 NLRB No. 91 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD filed on June 24 and alleges a violation of Section 8(a)(1) of the National Labor Relations Act, as amended , 29 U.S.C. Sec. 151 et seq., herein called the Act. All parties have been afforded full opportunity to appear, to introduce evidence, to examine and cross- examine witnesses, and to file briefs . Based upon the entire record, the brief of counsel for the General Counsel and the letter submitted by Respondent in lieu of a brief, arguments made during the hearing, and my observation of the demeanor of the only witness called, I make the following: FINDINGS OF FACT 1. JURISDICTION Pacific Grinding Wheel Co., Inc ., herein called Respon- dent, is a Washington corporation with its principal offices and headquarters at 13120 Highway 99, Marysville, Washington, where it is engaged in the preparation and manufacturing of abrasive grinding wheels and of related abrasive products. During the past calendar or fiscal year, a representative period, Respondent purchased goods and materials valued in excess of $50,000 from points outside the State of Washington ; purchased goods and material valued in excess of $50,000 from firms within the State of Washing- ton which, in turn, purchased those goods from outside the State of Washington ; or made sales to, or performed services for, customers located outside the State of Washington valued in excess of $50,000. Therefore, I find, as admitted by the answer, that Respondent is, and has been at all times material herein, an employer within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Chemical Workers Union, Local 614, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICE A. Issue Whether Respondent discharged Marjorie M. Ingram, on or about June 17, because she refused to cross a picket line of the Union at Respondent's place of business, and, if so, whether Respondent thereby violated Section 8(a)(1) of the Act. B. The Events of June For approximately 7 years Marjorie M. Ingram had worked for Respondent as a cleaning lady in Respondent's office and she was the only person employed by Respon- dent to handle the lighter cleaning work in the office. Heavier cleaning, such as vacuuming and shampooing rugs, waxing and stripping the entryway, and washing windows, was performed by someone other than Ingram including, for at least part of the time , American Cleaning, an outside commercial enterprise. On June 10 the Union called a strike of Respondent's plant employees and picketing commenced at Respon- dent's facility. Ingram, who was neither a member of the Union nor of the bargaining unit at Respondent 's facility, but who was married to the managing editor of the Everett, Washington, Labor Journal, telephoned the plant on that same day prior to her 4 : 30 p.m. starting time . She spoke with Gila Hinchcliff, an employee who answers the telephone at Respondent's facility. Ingram inquired if the picket lines were up and Hinchcliff replied that they were. Ingram then said that she could not come to work so long as there were pickets since her "husband would put my, fanny up on my shoulders" if she did so. Thereafter, Ingram ceased reporting for work. On June 17 Ingram received a telephone call from Respondent's comptroller, Donald L. Tischer,2 who said that he understood that Ingram had a problem. The latter agreed, saying that her problem was that she could not go through a picket line and Tischer replied that this was a matter that was up to Ingram, but that Respondent needed someone to do the cleaning since it had not been performed for a week. Thus, continued Tischer, Respon- dent was going to sign a contract for the full janitor service to get things cleaned up in a lump sum. He then listed for Ingram the cleaning services which would be covered under that contract and when he had finished, Ingram said, "Then, in other words, I am fired?" Tischer protested that he would not say that and Ingram retorted that this had been a polite way of saying so and that she didn't think that the government would stand for such a thing. In reply, Tischer said only: "Oh, I think so. We have a leg to stand on. You are a salaried person." Thereafter, by mail, Ingram received her paycheck accompanied by a document on which the following was handwritten: 2 The answer admits the allegation in the complaint that Tischer is a supervisor within the meaning of Sec. 2 ( l1) of the Act, and an agent of Respondent within the meaning of Sec. 2(13) or the Act. PACIFIC GRINDING WHEEL CO. Marge Ingram - term. 6/17/74 1 Week Worked 2 " Severance Pay 3 " VAC 1 day Birthday 6/3 - 6/7 - 1974 325.00 Base 97-1/2 Hrs. Monthly 3.33 P/Hr. 22-1/2 Hrs. Worked 1 Week 45 " Severance Pay 67-1/2 " Vac. Pay 8 " Birthday 143 Hrs. 0 3.33 476.19 27.85 Fica 65.40 Fit .20 W.C. 382.74 Marge . Will see u here. Also could u turn in keys Ingram testified that this represented a summary of the money owed her and that this agreed with the amount in her paycheck. On June 24, Ingram filed the unfair labor practice charge in this matter filling in that portion of the charge form entitled "Basis of Charge" as follows: Since on or about June 17, 1974, it by its officers, agents, or representatives, discharged Marjorie M. Ingram because of her having engaged in protected activities and at all times since that date, it has refused and does now refuse to employ the above named employee. The return receipt for the copy of the charge which was served on Respondent bears the date June 26. On June 27, Tischer sent a letter to Ingram stating: We have received charges from the National Labor Relations Board stating that you have been discharged because of union activities. This letter is to clarify our position. When you could not cross the picket line because your husband would not let you, we still needed someone to continue with the cleaning; and we were forced to hire someone. So, you were not discharged because of any reason other than you could not come to work. 4-1/2 hrs. Per day 22-1/2 " Weekly 375.00 Adv Bd. Will be on 6/30 check. 531 After the strike, we will see if there are any jobs equivalent to what you have been doing, and we would be glad to consider you for that job. If you do not want to wait until we have an opening, we would be glad to give you a recommendation to any employer. ANALYSIS AND CONCLUSIONS Section 7 protects the right of an employee to refuse to cross a picket line established at his employer's place of business by his fellow employees, since "An employee who refuses to cross a picket line is in effect joining the strike and engaging in concerted activities protected by the Act." N.L.R.B. v. West Coast Casket Co., Inc., 205 F.2d 902, 905 (C.A. 9, 1953). It is not significant that such an employee is not a member of the striking union, for "the employee, even though he is not a member of the striking union, has in effect plighted his troth with strikers, joined in their common cause, and has thus become a striker himself." N.L.R.B. v. Southern Greyhound Lines, Division of Grey- hound Lines, Inc., 426 F.2d 1299, 1301 (C.A. 5, 1970). Kellogg Company v. N.L.R.B., 457 F.2d 519 (C.A. 6, 1972). While Ingram said that she was not coming to work because, in effect, her husband would not approve of her working behind a picket line, this does not affect the scope of her protection under Section 7, as the "focal point of 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD inquiry" in making the determination as to whether or not an employee's refusal to cross a picket line is protected activity, "must of course be the nature of the activity itself rather than the employee's motives for engaging in the activity." The Cooper Thermometer Company, 154 NLRB 502, 504 (1965). Indeed, it is clear from Ingram's testimony that her husband's attitude was based upon his sympathy for striking employees and, in any event, the Board has held an employee's refusal to work behind a picket line to be protected where that employee was respecting her husband's wishes in withholding her services. Nuodex Division of Tenneco Chemicals, Inc., 176 NLRB 611 (1967). Consequently, I find that by respecting the picket line at Respondent's facility, Ingram became an economic striker and, accordingly, was engaged in activity protected by Section 7 of the Act. The rights of employees where, as here, they have respected a picket line established at their employers' premises were set forth most cogently in N.L.R.B. v. Southern Greyhound Lines, supra at 1301: The basis of the protection against discharge afforded an employee who refuses to cross a picket line at his employer's business is his status as a striker. Such an employee is therefore entitled to all the protections due under the National Labor Relations Act to those strikers with whom he has joined cause. Conversely, the employer's right to discipline such an employee to preserve the operation of his business is limited to those measures which he could lawfully use against the strikers. It is axiomatic that it is not lawful to discharge an economic striker. N.L.R.B. v. International Van Lines, 409 U.S. 48, 52 (1972). It is equally axiomatic that an employer may retain permanent replacements for economic strikers to preserve the operations of his business. Id, 409 U.S. at 50; N.L.R.B. v. Fleetwood Trailer Co., 389 U.S. 375, 379 (1967). Respondent denies that it did the former and urges me to find that it did the latter. If an employer is to rely on a defense that it permanently replaced an economic striker, "the burden of proving justification is on the employer." N.L.R.B. v. Southern Greyhound Lines, ibid. at 1302. Accord: M/G Transport Services, Inc., 204 NLRB 324 (1973); Di/co Laboratories, Inc., 172 NLRB 2149, 2152 (1968). In the instant case, Respondent has presented no evidence on this point. The need to have Ingram's cleaning work'performed might well be inferred from the fact that she had been the only employee performing such work in the office and, obviously, the work which she had been doing was not being performed in her absence . However, two factors impede drawing such an inference under the circumstances of this case. First, although there is a delineation of the work which Ingram did not perform (vacuuming and shampooing rugs, waxing and stripping the entryway, and washing windows), at no point is there a similar listing of the duties which she did perform normally. Thus, it is difficult to infer that Respondent needed to replace Ingram, assuming that it did replace her, to preserve the efficiency of its operation when the role which Ingram performed in Respondent's operations has not been defined. Secondly, there was a strike of Respondent's plant employees and although the office employees were not part of the Union's bargaining unit, there has been no showing that office operations were continuing normally and, thus, that Ingram's duties would have had to be performed in the normal fashion. Undoubtedly there was at least some effect on operations in the office caused by the interruption of Respondent's normal plant operations. See General Electric Company, 193 NLRB 372, 374 (1971); The Cooper Thermometer Company, 154 NLRB 502, 504 (1965). Consequently, without at least some idea of Ingram's precise duties and given the fact that the interruption of normal plant operations would have some effect on office operations, it would be improvident for me to infer valid justification for replacement solely from the fact that Ingram was the only person who did her work in the office under normal circumstances . Indeed, to draw such an inference in these circumstances, without more, would render illusory Ingram's right to engage in the protected activity of respecting the picket line of the plant employees. An even more fatal defect in Respondent's defense is created by the absence of evidence that Ingram was, in fact, replaced. No evidence was presented by Respondent to establish that there was a replacement . Tischer did tell Ingram on June 17 that Respondent intended to sign a contract consolidating Ingram's cleaning duties with cleaning duties which she did not normally perform and that all cleaning duties would then be subcontracted, but Respondent did not establish that this contract had been signed and the replacement effected by the time that the paycheck was mailed to Ingram with the accompanying note stating that she was terminated on June 17. In fact, there is evidence that such a replacement by a subcontrac- tor never occurred, since in his letter of June 27 Tischer stated that when Ingram failed to report, Respondent was forced "to hire someone." Assuming that a replacement was hired, instead of the work being contracted, there is no showing that this step had been taken by or on June 17. Moreover, I cannot rely on Tischer's statements to Ingram as evidence of the facts asserted, since his statements were self-serving and such evidence would be hearsay . Further- more, his statement on June 27 contradicts that of June 17. Consequently, in the circumstances presented in this case, I find that Respondent has failed to establish that it replaced Ingram and that if it did so, it has failed to show that its actions were undertaken to preserve the operation of its business. Finally, I find that the record amply supports the General Counsel's contention that Ingram was discharged on June 17. First, as found above, the evidence does not support Respondent's assertion that Ingram had been replaced and, accordingly, this is not a situation where Respondent replaced Ingram, but rather is a situation where Respondent simply terminated her, without so far as the record discloses having hired anyone to replace her. Southern Greyhound Lines, Division of Greyhound Lines, Inc., 169 NLRB 627, enfd. 426 F.2d 1299 (C.A. 5, 1970); Lenkurt Electric Co., Inc., 177 NLRB 259, 262 (1969); M/G Transport Services, Inc., 204 NLRB 324 (1973). Secondly, as an economic striker, Ingram's status as an employee would continue until she obtained "other regular and PACIFIC GRINDING WHEEL CO. 533 substantially equivalent employment ," without regard to whether her job was not available at a particular moment in time. N.L.R.B. v. Fleetwood Trailer Co., Inc., 389 U.S. 375, 381 (1967). Nonetheless, the document which accom- panied Ingram's check was headed by the phrase "Marge Ingram-term. 6/17/74" and clearly listed figures for items which showed that Respondent was treating the matter as the conclusion of Ingram's employment relationship with Respondent. Cf. Hanley Dawson Chevrolet, Inc., 168 NLRB 944, 946 (1967). Third, during the telephone conversation of June 17, when Ingram challenged Respondent's right to take action regarding her job by saying that the Govern- ment would not stand for it, Tischer made no reference to replacement in response, but instead retorted "We have a leg to stand on. You are a salaried person." It is thus clear that at this point in time Respondent was relying on the fact that Ingram was salaried (and, implicitly, not a part of the Union's bargaining unit) to support her termination. In fact, of course, this is not a valid justification. Lenkurt Electric Co., supra, 177 NLRB at 260-261. Finally, any contention that Respondent's action did not constitute a discharge is dispelled by Tischer's letter of June 27, obviously sent in response to the allegation in Ingram's unfair labor practice charge that Respondent had "dis- charged Marjorie M. Ingram because of her having engaged in protected activities." In his letter, Tischer states : "So, you were not discharged because of any reason other than you could not come to work." Thus, Tischer did not contest Ingram's assertion that she was discharged (in fact, he clearly concedes that this was the fact), but instead takes issue only with the reason which Ingram asserted motivated the discharge . Moreover, Tischer goes on to state in his letter that Ingram will be "considered" for "jobs equivalent to what you have been doing" once the strike culminated. Yet, it is quite clear that as an economic striker Ingram is entitled not simply to "consideration" for employment in jobs for which she is qualified. She is entitled to reinstatement to such jobs once she has abandoned the service. N.LR.B. v. Fleetwood Trailer Co., supra, 389 U.S. at 381 . Consequently, this portion of Tischer's letter further demonstrates that without regard to the status of the strike, as far as Respondent was concerned, it was Ingram's employment that had culminat- ed. Consequently, I find that Respondent did discharge Ingram for refusing to cross a picket line at Respondent's place of business .3 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth above , occurring in connection with the Respondent's operations described in section I above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the 3 In reaching this conclusion, I am not relying on the principles applicable to situations where employees refuse to perform that portion of their duties which involve crossing a picket line at another employer 's place of business. See Redwing Carriers, Inc and Rockana Carriers, Inc., 137 NLRB 1545 (1%2), enfd. sub. nom. Teamsters, Chauffeurs and Helpers Local Union No. 79, International Brotherhood of Teamsters, etc. v. N L.R.B., 325 F.2d 1011 (C.A.D.C. 1%3), cert. denied 377 U.S. 905 ( 1964). Such situations several States, and tend to lead, and have led, to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, it shall be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. With regard to the latter, Respondent will be required to offer Marjorie M. Ingram reinstatement to her former position or, if that position no longer exists, to a substantially equivalent position without prejudice to her seniority or other rights and privileges, dismissing, if necessary, anyone who may have been hired or retained to perform the work which she had been performing prior to the time that she began respecting the Union's picket line on June 10. Additionally, Respondent will be required to make Marjorie M. Ingram whole for any loss of earnings she may have suffered by reason of her unlawful discharge with the backpay to be computed on a quarterly basis, making deductions for interim earnings, and with interest to be paid at the rate of 6 percent per annum. F. W. Woolworth Company, 90 NLRB 289 (1950); Isis Plumbing & Heating Co., 138 NLRB 716 (1962). In this regard, it is clear that Ingram is not entitled to backpay while she was withholding her services even though she was discharged during this time . Sea-Way Distributing, Inc., 143 NLRB 460 (1963), and cases cited therein at footnote 2. Thus, I find that the period for computing her backpay will commence upon the earliest of the following: (1) abandonment of the strike and applica- tion for reinstatement by Ingram ; or (2) termination of the strike by the Union without a prior offer by Respondent to reinstate Ingram as set forth above. CONCLUSIONS OF LAW -1. Respondent is an employer engaged in commerce within the meaning of Section 2(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. By discharging and thereafter refusing to offer reinstatement to Marjorie M. Ingram because she refused to cross a picket line of the Union at Respondent's place of business, Respondent interfered with, restrained, and coerced her in the exercise of her rights guaranteed in Section 7 of the Act and has engaged in, and is engaging in, an unfair labor practice within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact, conclusions of law, and entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: are distinguishable from that presented by the instant case and this distinction is well-established. The Cooper Thermometer Company, 154 NLRB 502, 505-506 (1%5); Southern Greyhound lanes, 169 NLRB 627, 628-629, enfd. 426 F.2d 1299 (C.A. 5, 1970); Difco Laboratories, Inc., 172 NLRB 2149, 2152-53, enfd. 427 F.2d 170 (C.A. 6, 1970); Lenkurt Electric Co, 177 NLRB 259, 261 (1%9) 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER4 Respondent, Pacific Grinding Wheel Co., Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging any employee because he or she has assisted a labor organization by refusing to work during a lawful strike. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed under Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Marjorie M. Ingram immediate and full reinstatement to her former position , dismissing, if neces- sary, anyone who may have been hired or retained to perform the work which she had been performing prior to the time that she began respecting the Union's picket line on June 10, or, if her former position does not exist, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges , and make her whole for any loss of pay she may have suffered as the result of 4 In the event no exceptions are filed as provided by Sec . 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. the discrimination, in the manner set forth above in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll and other records necessary to compute the backpay and reinstatement rights as set forth in "The Remedy" herein. (c) Post at its Marysville, Washington, facility copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by Respondent's authorized representative, shall 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 Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 8 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."