Compacted Powdered Metals, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Compacted Powdered Metals, Inc. and United Steel- workers of America, AFL-CIO-CLC. Case 6-CA- 9271 August 1, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On February 4, 1977, Administrative Law Judge Melvin J. Welles 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 Relations 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,1 and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 2 AMENDED CONCLUSION OF LAW By discharging employees because they engaged in union and protected concerted activity, and by failing to offer reinstatement to strikers when vacancies arose, Respondent has engaged in unfair labor practices violative of Section 8(a)(1) and (3) and affecting commerce within the meaning of Section 2(6) and (7) of the Act. 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, as modified below, and hereby orders that the Respon- dent, Compacted Powdered Metals, Inc., Ridgway, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph l(a): "(a) Discharging or refusing to reinstate any employees because they have engaged in union and protected concerted activities for mutual aid and protection." 2. Substitute the following for paragraph l(b): "(b) In any other manner interfering with, restrain- ing, or coercing their employees in the exercise of their rights protected by Section 7 of the Act." 3. Substitute the attached notice for that of the Administrative Law Judge. 231 NLRB No. 11 t The Administrative Law Judge's finding that Respondent violated Sec. 8(aX3) of the Act by discharging the economic strikers on April 28 and, thereafter, by failing and refusing to reinstate four of them is unsupported by any factual information which ties this conduct to the employees' union activities. The record indicates that pnor to the strike, which began on April 23, 1976, the employees had organized into a committee to bargain with their Employer and struck when the Employer refused to meet their demands. By letter dated May 4, while the strike was in progress, the Charging Party, United Steelworkers of America, AFL-CIO, demanded recognition as the employees' collective-bargaining representative and offered to prove its majority by a card check. On May 5, 1976. the Charging Party's name appeared on employees' picket signs. Based on the foregoing. and on the record as a whole, we agree with the Administrative Law Judge's finding that Respondent violated both Sec. 8(aX3) and (I) of the Act by discharging the strikers and refusing to reinstate them upon their unconditional offers to return to work. 2 In par. I(b) of his recommended Order, the Administrative Law Judge uses the narrow cease-and-desist language, "in any like or related manner." Respondent here has committed violations which go to the very heart of the Act. We shall therefore require Respondent to cease and desist from in any other manner infringing upon the rights guaranteed to employees by Section 7 of the Act. N.LR.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941); Electrical Fittrrings Corporation, a subsidiary of I-T E Imperial Corporalion, 216 NLRB 1076(1975). APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or refuse to reinstate any employees because they engage in union and protected concerted activities for mutual aid and protection. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed by the National Labor Relations Act. WE WILL offer reemployment to Valiery Vogt, Diane D'Amore, George Hollobaugh, and James Laughner and WE WILL pay them for losses they suffered as a result of their not having been reinstated when positions which they could fill first became available. COMPACTED POWDERED METALS, INC. DECISION STATEMENT OF THE CASE MELVIN J. WELLES, Administrative Law Judge: This case was heard at Ridgway, Pennsylvania, on October 19, 1976, pursuant to charges filed May 21, 1976, and amended July 28, 1976, and a complaint issued July 30, 1976, and amended October 12, 1976, alleging that Respondent violated Section 8(a)(1) and (3) of the Act. Briefs have been filed by the General Counsel and Respondent. Upon the entire record in the case, including my observation of the witnesses, I make the following: 68 COMPACTED POWDERED METALS, INC. FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Respondent is a Pennsylvania corporation engaged in the production of pressed metal products at its plant in Ridgway, Pennsylvania. During the 12-month period preceding the issuance of the complaint herein, Respon- dent sold and shipped goods valued in excess of $50,000 from its plant in Pennsylvania to points located outside Pennsylvania. I find, as Respondent admits, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 1. THE UNFAIR LABOR PRACTICES A. The Facts On April 23, 1976,1 16 of the approximately 25 employees in Respondent's production and maintenance departments began an economic strike. The strikers included eight operators, three diesetters, one diesetter trainee, one inspector, two maintenance employees, and one tool-and-die maker. Two supervisors also joined the strike. On April 28, Respondent sent to each of the strikers a letter reading as follows: This is to advise you that your employment with CPMI is terminated as of April 28, 1976, because you have been permanently replaced as of that date for purely economic reasons. We are enclosing you final check. If you wish to reapply for a new position with this company, we will gladly accept your application for a new position with this company. Very truly yours, Earl H. Osborne President Between April 23 and 28, Respondent hired five operators, one of whom left the same day he was hired. Respondent also hired one shipping department employee during that period, also terminated the same day he was hired, and one maintenance man. In addition, President Osborne testified that four other persons were "contacted," and commitments to hire them made, during that period. These four included two diesetters, one quality control person, and one tool designer, all of whom, according to Osborne, had "more experience" than the ones "we presently had." Osborne added that the two employees in question had "agreed to come in the future," but "some" of them did not come to the Company. Company records show that a new diesetter came to work May 8, another new diesetter reported June 16, two new diesetter trainees reported to work June 9, one of ' All dates herein are in the year 1976. 2 In view of its "100 applications" for employment after Apnl 28. and Respondent's continuing to interview for operator positions after May 17, it seems likely that the ads ran for longer than the end of the strike on May 14. whom was terminated June 15, a quality control man came to work June 1, and new diesetter trainees reported on July 19 and 22 (terminated August 13) and August 8 (terminat- ed August 30). On April 28, Respondent was using a secretary as an operator, a design engineer on diesetter work, and its plant superintendent, Jordan, also on diesetter work. By May 14, the first two had resumed their normal work, but Jordan continued to do diesetter work. After April 28 and prior to May 14, when the strike ended, Respondent rehired operator Alice Buck (who had received one of the April 28 termination letters), and hired new operators Dennis Bauer, Theresa Secor, and Ann Marie Farr. The strike ended May 14. Thereafter, Diane D'Amore, Valiery Vogt, and George Hollobaugh, all classified as "operators," were never rehired, although each filled out an application for employment, at Respondent's direction, Hollobaugh on May 14, and Vogt and D'Amore on May 17. James Laughner, a diesetter trainee prior to the strike, also filled out the application for new employment on May 17, listing "die setter" on the application as "position applied for." Laughner was not rehired until August 10, when he returned as an operator, moving to diesetter trainee a short time later. After May 14, and until the date of the hearing herein, on October 19, Respondent hired 18 operators, 3 in May, 3 in June, 9 in July, and 3 in August. During the same period Respondent hired five diesetter trainees, two in June, two in July, and one in August. Respondent's "operators" constitute, as noted above, the large majority of its employees. There are both press and furnace operators, the two being interchangeable, and requiring very little ("a matter of days," according to Osborne) training. Its diesetters and diesetter trainees are also able to perform operator work. Prior to the onset of the strike, Respondent had been running ads in the newspaper for employees, in contemplation of expanding its work force, and these ads continued to run for at least a short time after the strike began.2 Also, as of the time of the hearing, Respondent had acquired "at least" 8 new machines, necessitating from 8 to 12 employees to operate. B. Discussion The only issues in this case are whether Respondent violated Section 8(aX)() and (3) of the Act by discharging economic strikers, and by subsequently refusing to rein- state four of them upon their applications for employment at the end of the strike. Discharging economic strikers, even assuming that they have been "permanently replaced," is clearly violative of Section 8(aXI) of the Act, for even replaced economic strikers remain employees within the meaning of Section 2(3) of the Act. Brooks Research & Manufacturing, Inc., 202 NLRB 634 (1973). Such strikers are entitled, even with no positions open to them at the time they end their strike and seek to return to work,3 to reemployment as jobs open up because replacements leave, or business expands. They cannot be regarded merely as applicants for new employ- ment, to be hired or rejected on their merits vis-a-vis other I Whether because of permanent replacement. or a curtailment in their employer's business, eliminating the need for them at that moment. 69 DECISIONS OF NATIONAL LABOR RELATIONS BOARD applicants for employment, and that is precisely what Respondent attempted to make them in its April 28 letter. The Laidlaw Corporation, 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (C.A. 7, 1969), cert. denied 397 U.S. 920 (1970). The letter stated that the strikers' employment was "terminated," and that they could, if they wished, "reapply for a new position with this company." By sending this termination letter, accordingly, Respondent violated Sec- tion 8(a)(1), even assuming that at that moment Respon- dent had no need for the services of its striking employees. In any event, the facts set forth above demonstrate that not all strikers had been permanently replaced by April 28, for at least three new operators were hired thereafter, but prior to the end of the strike on May 14, and a secretary, a design engineer, and the plant superintendent were performing production work after May 14. Furthermore, Respondent had been contemplating expanding its opera- tions for some time, had been running ads in the newspaper for new employees, continued to run these ads after April 23, and in response to the question whether the ads ran after April 28, and during May, President Osborne said, "I can't recall . . . I'd still have to refer to my records," creating a strong inference that the ads did continue to run past April 28. Finally, four of the asserted replacements had not only not reported to work by April 28, "some" never did so report. Accordingly, the discharge letters were violative of Section 8(a)(l) and (3) of the Act for the additional reason that it was not the fact that all employees had been permanently replaced, in any sense of those words, at the time the letter was sent, and this case is therefore factually within the ambit of, and controlled by, N.L.R.B. v. International Van Lines, 409 U.S. 48 (1972). Finally, it is virtually conceded by Respondent, as it would necessarily have to be in the light of the documenta- ry evidence in Respondent's records that Respondent hired many brand new operators and diesetter trainees after Vogt, D'Amore, Hollobaugh, and Laughner applied for jobs on May 14 and 17, never rehired the first three, and did not rehire Laughner until August 10. On the face of it, the failure to rehire Vogt, D'Amore, and Hollobaugh at all, and Laughner until August 10, entailed a violation of Section 8(a)(1) and (3) of the Act. Respondent defends its conduct on various grounds as to these employees. With respect to D'Amore and Vogt, Respondent views their status as special because at the time they were working they were full-time students operating under a special school-sponsored program, and, additionally, because the work performance of each had declined in the last few months on the job. It is plain from the testimony of their foreman, Ronald Jordan, that any "decline" in their performance on the job was minimal and, at most, involved in the case of D'Amore going from "excellent" ratings in many of the categories to an "average" or "above average" rating in those categories. Her last rating shows no "below average" or "unsatisfacto- ry" rating. Vogt was not "rated" in the same way as D'Amore, but Jordan testified that her work declined following "a back injury or something." There is no indication in the record that the company was dissatisfied I When the two began working, according to Osborne, "It was understood that after they had finished high school, that we would retain them as operators or whatever we felt that they had the experience for." with the work of either D'Amore or Vogt, or that it contemplated not keeping them on after their graduation. 4 The fact that they obtained their jobs under a "special" program, therefore, obviously had nothing to do with their continued employment, and in no way diminished their rights, under Laidlaw, supra, to be reinstated to available positions after the strike was over. As to Hollobaugh, Respondent asserts that he was still a "probationary employee" as of the time of his April 28 termination, having worked 317 hours, 3 less than the 320 Respondent regarded as a probationary period, and that he "was never advised by Respondent that he had successfully completed his probationary period." Jordan testified that he was about to recommend extension of Hollobaugh's trial period to Osborne when the strike occurred. In view of the fact that Hollobaugh had never been warned at all about his work, or told he was not performing at a level that would warrant his retention on the job at the end of his probationary period which had just 3 hours to go, I must conclude that Respondent has not established a "substantial business justification" for refusing to take him back following the strike. Finally, as to Laughner, Respondent argues that his application for employment of May 17 listed "die setter" as the position sought, and, as Laughner was only a diesetter trainee, and not qualified as a diesetter, there was no obligation on Respondent's part to rehire him. As the requirement by Respondent that the strikers fill out applications for new employment was itself in derogation of their rights under Laidlaw, supra, Respondent cannot rely on this application as justification for its failure to offer Laughner open diesetter trainee positions. 5 Furthermore, Laughner, who was eventually rehired as an operator, could have been taken back as such even had no diesetter trainee positions been available. In sum, not only did Respondent unlawfully discharge all its striking employees on April 28, it thereafter failed to offer available positions to the four employees, D'Amore, Vogt, Hollobaugh and Laughner, in disregard of their continued status as "employees," as their right to be reinstated, following the end of the strike, as jobs became available. Respondent thereby violated Section 8(a)(1) and (3) of the Act. CONCLUSION OF LAW By discharging employees because they engaged in a protected concerted activity, and by failing to offer reinstatement to strikers when vacancies arose, Respon- dent has engaged in unfair labor practices affecting commerce within the meaning of Sections (8)(a)(1), and (3) and 2(6) and (7) of the Act. THE REMEDY I shall recommend that Respondent cease and desist from its unfair labor practices, that it offer reinstatement, to the extent it has not already done so, to Valiery Vogt, Diane D'Amore, George Hollobaugh, and James Laugh- ner, with backpay computed as provided in F. W. s As noted above, two new diesetter trainees reported to work June 9. 70 COMPACTED POWDERED METALS, INC. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962), and take certain affirmative action in order to effectuate the policies of the Act. Upon the foregoing findings of fact, conclusion of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 6 Respondent Compacted Powdered Metals, Inc., Ridg- way, Pennsylvania, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or refusing to reinstate any employees because they have engaged in concerted activities for mutual aid and protection. (b) In any like or related manner interfering with, restraining, or coercing their employees in the exercise of their rights protected by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Valiery Vogt, Diane D'Amore, George Hollo- baugh, and James Laughner immediate and full reinstate- ment to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to 6 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. their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered in the manner set forth in the section hereof entitled "The Remedy." (b) 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 records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its place of business in Ridgway, Pennsylvan- ia, copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 6, after being signed by an authorized representative of the Company, shall be posted immediate- ly upon receipt thereof, and be maintained for 60 consecutive days therafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify said Regional Director, in writing, within 20 days from tile date of this Order, what steps the Respon- dent has taken to comply herewith. 7 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." 71