Burton Parsons & Co.

Burton Parsons & Co., Inc. and Local 25, Hotel and Restaurant Employees Union. Case 5-CA-9412 May 23, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On February 6, 1979, Administrative Law Judge Lowell Goerlich issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge, as modified be- low, and hereby orders that the Respondent, Burton Parsons & Co., Inc., Seat Pleasant, Maryland, its offi- cers, agents, successors, and assigns, shall take the ac- tion set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph I: "1. Cease and desist from: "(a) Unlawfully discharging former strikers for re- fusing to accept job offers which are neither their po- sitions held immediately prior to the strike, nor sub- stantially equivalent positions, in violation of Section 8(a)(3) of the Act. "(b) In any other manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act." I Respondent has excepted to certain credibility findings made by the Ad- ministrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. The Administrative Law Judge inadvertently found that the economic strike ended on November 11, 1977, rather than on the correct date of No- vember 9, 1977. We hereby correct said inadvertency. 2 The Administrative Law Judge, in finding an 8(a)3) violation, failed to use the broad injunctive language required for such a finding. We shall, therefore, modify his recommended Order and notice accordingly. BURTON PARSONS & CO., INC. 2. Substitute the attached notice for that of the Administrative Law Judge. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges violations pertaining to Geraldine Daniels. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which we participated and had a chance to give evidence, the National Labor Rela- tions Board has found that we committed certain un- fair labor practices and has ordered us to post this notice. We intend to abide by the following: WE WILL NOT unlawfully discharge former strikers for refusing to accept jobs offered them which are neither the positions which they filled immediately prior to the strike, nor substantially equivalent positions, in violation of Section 8(a)(3) of the National Labor Relations Act, as amended. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act. WE WILL make whole Betty Jean Moore, Lutricia Butler, Amy Swearinger, and Vernell Beason for any backpay due them, plus interest. BURTON PARSONS & Co., INC. DECISION STATEMENT OF THE CASE LOWELL GOERI.ICH, Administrative Law Judge: The charge filed by Local 25, Hotel and Restaurant Employees Union, herein called the Union, on April 21, 1978, and the first amended charge filed on May 9. 1978. were duly served by registered mail on Burton Parsons & Co., Inc.. Respon- dent herein, on April 21, 1978, and May 10, 1978, respec- tively. A complaint and notice of hearing was issued on July 12. 1978. The complaint charged that Respondent on or about February 1, 1978, discriminated against Lutricia Butler, Betty Moore, Amy Swearinger. Geraldine Daniels, and Vernell Beason, former strikers, in violation of Section 8(a)(3) of the National Labor Relations Act. as amended, herein referred to as the Act, by failing and refusing to reinstate them to the same duties which the)' performed prior to a strike which occurred on June 10. 1977. Respondent hled a timely answer denying that it had en- gaged in any of the unfair labor practices alleged. The case came on for hearing at Washington, D.C., on November 13 and 14, 1978. Each party was afforded a full 242 NLRB No. 90 487 DECISIONS OF NATIONAL LABOR RELATIONS BOARD opportunity to be heard, to examine and cross-examine wit- nesses, to argue orally on the record, to submit proposed findings of fact and conclusions, and to file briefs. All briefs have been carefully considered. Findings of Fact,' Conclusions, and Reasons Therefor I. BUSINESS OF RESPONDENT Respondent, a Delaware corporation, is engaged in the manufacture, sale, and distribution of ophthalmic products at its Seat Pleasant, Maryland, location. During the preced- ing 12 months, a representative period, Respondent sold and shipped products valued in excess of $50,000 to points located outside the State of Maryland. At all times material herein Respondent is, and has been, an employer as defined in Section 2(2) of the Act, engaged in commerce and in operations affecting commerce as de- fined in Section 2(6) and (7) of the Act, respectively. II. THE LABOR ORGANIZATION INVOLVED At all times material herein the Union is, and has been, a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES A. The Pertinent Facts On June 10, 1977, the Union engaged in a strike at Re- spondent's plant which continued until November 11, 1977, at which time the strike was terminated and an agreement was reached. Thereafter on January 24 and 30, 1978, the Union and Respondent, respectively, signed the agreement. A decertification petition was filed on January 30, 1978, and is still pending. On or about August 5, 1977, Respondent prepared a preferential hiring list on which were listed the names of employees according to the date upon which they requested a return to work.' The names of Betty Jean Moore, Lutricia Butler, Amy Swearinger, Vernell Beason, and Geraldine Daniels, the alleged discriminatees herein, were included on the list. Prior to the strike these employees had occupied jobs as production line workers. As such they performed divers op- erations on the several production lines on a rotating basis. As bottles filled with a solution for contact lens arrive at these production lines from the filling room they are in- spected "to make sure that the caps are on all the bottles." 'The facts found herein are based on the record as a whole and the obser- vation of the witnesses. The credibility resolutions herein have been derived from a review of the entire testimonial record and exhibits, with due regard for the logic of probability, the demeanor of the witnesses, and the teachings of N.L.R.B. v. Walton Manufacturing Conpany and Loganville Pants Co., 369 U.S. 404, 408 (1962). As to those witnesses testifying in contradiction to the findings herein, their testimony has been discredited, either as having been in conflict with the testimony of credible witnesses or because it was in and of itself incredible and unworthy of belief. All testimony has been reviewed and weighed in the light of the entire record. No testimony has been preter- mitted. 2 All except 10 or 15 employees returned to work during the strike. The validity of the preferential hiring list is not here in issue. Then "a girl would pick it up and drop it inside the box that's rotating around," after which the "box goes down the line to the girl on the sealer and she seals the bottle up." This involves cloaking the box or the bottle in a plastic wrap. Then the "bottle goes through a machine that shrinks the plastic" and drops it on a table where it is packed in boxes, a dozen to a box. Lens cases were also packaged. These boxes ended up in "shipping boxes" which, when packed, weighed between 55 and 62 pounds. The shipping boxes were stacked in three tiers on skids which when fully loaded weighed around 1,724 pounds. The fully loaded skids were hand-towed away from the lines by means of a pallet jack which was equipped with wheels. The record is unclear as to whether the line workers lifted the 62-pound shipping boxes onto the skids. (The alleged discriminatees claimed little lifting was done.) However, if Brian Owen Pearce, Jr. (assistant production manager prior to the strike and presently validation calibration manager), is to be credited, the empty shipping boxes were placed on the skids and there filled by the line worker. Thus, he said, there would be no lifting for the tall girls. "They can just pack it right on the skid. The shorter ladies, someone 5'2 or 5'3, would have to pack them on the ground." Since the boxes were stacked in three tiers, these "shorter ladies" would "have to lift up one height and then two heights." Pearce agreed that the longest spell any employee would be packing shipping boxes in any one stretch was 2 hours.4 On January 11, 1978, letters were directed by Respon- dent to Moore and Swearinger and on January 16, 1978, a letter was directed to Butler. These letters, noting the pref- erential hiring list, offered the employees jobs as janitors (night housekeeping) at $3.25 an hour for a shift from 7 p.m. to 3:30 a.m. Each letter contained the paragraph: "In the event you were in a different [job] classification and pay rate you need not accept this offer and your name will re- main on the Preferential Hiring List. You will continue to be considered for a vacancy in your classification when it occurs." (G.C. Exh. 6.) It was understood that these jobs were temporary until such time as the employees' prestrike jobs became available. During this period the employees remained on the preferential hiring list. The employees re- ported for work and continued in the janitorial jobs until February 1, 1978. In the meantime, the employees learned from their supervisor that some line worker jobs were open- ing. Kline was contacted. He told the employees to report on February 1. 1978, for returning to their "original" jobs. On January 25, 1978, letters were directed to Beason and Daniels and several others on the preferential hiring list which read in part: The position offered you is Line Worker, your cur- rent classification. Your rate of pay will be $3.25 an hour, the agreed upon rate for this classification. Beason described her job as: "I was working on the lines working on the sealer, working dropping bottles, putting lens cases in or packing shipping boxes." ' Pearce testified: "You only have six hours and some odd minutes for a work day because you have breaks and you have start-up times and break times." The line workers were given three breaks a day, after each of which they exchanged jobs on the line. Speed of the lines ranged from 60 bottles a minute. 488 BURTON PARSONS & CO., INC. Since this is the same classification you previously held, this is the final offer you shall receive to return to work. If you do not report for work at 7:30 a.m. (EST) Wednesday, February 1, 1978, your name will be re- moved from the Preferential Hiring List. Moore, Butler, Swearinger, Beason, Daniels, and the re- maining employees on the preferential hiring list reported for work on February 1, 1978. Of the five alleged discrimi- natees, Daniels was offered the same job she had filled prior to the strike and the remaining four were offered new jobs by Pearce.' Pearce told the employees, "[Y]ou're coming back to work now and we're going to try out a new position. I don't think you've ever seen anybody do this position before so I'm going to read the job description." He read the follow- ing job description: MANUFACTURING POSITION DESCRIPTION Title-Line Worker (Supplies lines6 and packs skids). Reporting to-Line Supervisor Salary-Hourly-Grade I (starting $3.00) Hours-7:00 a.m. to 3:30 p.m. (40 hours) Line Supply 8:00 a.m. to 4:30 p.m. (40 hours) Pack Skids Responsibilities: 1. Provide materials for line in a timely manner. 2. Pack finished product on skids. 3. Band skids of finished product. 4. Rotate between supplying the line and packing skids of finished product for each shift. 5. Maintain production lines in a state of order and cleanliness. 6. Rotate on a daily basis starting and stopping times. 7. Complete necessary records. Requirements: 1. Ability to lift up to 62 pound boxes continuously during shift. 2. Ability to pull finished product skid weighing up to 1724 lbs. at the rate of one per each 37 minutes. 3. Ability to keep basic records. 4. Ability to perform addition and subtraction of numbers. 5. High School education or equivalent work expe- rience. Pearce also told the employees that the job "was out of the union contract." He read a part of attachment A to the contract as follows: 5 Pearce told the employees that "it was going to be a combination of jobs that they had never seen before." 6A part of this job was to supply bags of bottles to the filling room through a window. Pearce said that "it takes particular training to do these duties. There's about four forms that are filled out each time a bag of bottles goes in the window and the coding on there is very complicated. You have to be able to add and subtract with quite a bit of ability." Training for this part of the job would have required I to 3 weeks. This job also required the employee to remove accumulated trash from the line with a handtruck. This involved lifting 35-40 pounds. Line Worker (To include: Packers, Lens Case Inserters, Skid Packers, Bottle Dropper, Code Inspec- tor, Labeling Inspector, Line Suppliers, Pack- ers)7: Starting Rate, 3.00: after 90 days, 3.15: after 180 Days, 3.25. Pearce testified that "when I started reading it, a big commotion occurred and everybody said we're not here to do that.... so I finished it and the people were getting real mad." According to Pearce, one employee said "this mother fucking company is out to get us. You can tell that. Here we are coming back and they are trying to screw us with this job." Pearce testified that the employees were most aroused by the requirement that they pull skids. Pearce insisted that this was a job requirement which each employee must meet without assistance. Although Beason called Pearce's atten- tion to the fact that because of a recent pregnancy she was unable to pull skids, he answered that if she were "unable to do the job that [she] would have to resign or they would have to fire [her]." According to Pearce when the employees were asked whether they were going to take the jobs, "they all in unison said no." Of the employees present, Moore, Butler, Swearinger, Mary Walker, and Beason were offered the "new" jobs and Venita Alson, Marguerita Bell, and Daniels were offered their prestrike jobs. After the confrontation with Pearce, six of the employees went to the reception area of the plant where they sought a meeting with Kline. While the employees were waiting for Kline, Gregory Most, plant manager. and John Bryer, di- rector of manufacturing, were asked whether Moore, But- ler, and Swearinger would be returned to their janitorial jobs. Their answers were negative. When Kline appeared he informed the employees that they "could either resign or be terminated if they refused to perform the tasks that were assigned to them." Moore, Butler, Swearinger, Beason, and Daniels left. Each was discharged for the "refusal to accept job that was assigned to them." The employees contacted Minor Wesley Christian, a union representative, who visited the plant on February 3, 1978. Bryer and Most "carried" Christian to the area where the skids were. Christian indicated to Most that "these were not the jobs the young ladies were called back to d,, th:. ... in the letter that the jobs they were going to be called back for were line jobs." Most replied that "at that particu- lar time, that the Company had created these new jobs and they were going to do it.... they're the only jobs they are going to do and if they don't like it, then they can get out." On inquiring as to whether the employees could have help in pulling the skids, Most replied, "no, we only use one at a time to pull the skids." Christian commented, ". . . the rea- son I believe you called them back here was because you don't want them here because you know they were the prin- cipal leaders in the strike." Most responded that "maybe it is the reason why we are getting rid of the women." Chris- tian tried to pull a skid but was unsuccessful. Nevertheless, The credited evidence indicates that job classifications falling In the same wage rate were "lumped" together but not for the purpose of combining job duties. Union negotiator Ronald Richardson credibly testified, "at no time did we agree that we were combining job duties by listing those under onc wage rate. It was only for the purpose of the wage rate, nothing else." 489 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Most insisted that if "she [the employee] couldn't pull it, she can go home."8 Alleged discriminatee Moore returned to work in Sep- tember 1978.9 She is performing the same duties she did prior to the strike. B. Conclusions and Reasons Therefor The Laidlaw case, 171 NLRB 1366 (1968), teaches that, upon an unconditional offer to return to work, an employer violates Section 8(a)(3) and (1) of the Act, without regard to the employer's intent or union animus, if he fails to return a striker to his prior position or a substantially equivalent position when such a position becomes available unless he shows a legitimate and substantial business justification for not offering full reinstatement."' Moreover, an individual whose work ceases by reason of a labor dispute remains an employee if he has not obtained regular or substantially equivalent employment elsewhere. Thus, on February 1, 1978, the alleged discriminatees, former strikers whose names appeared on the preferential hiring list, were benefi- ciaries of the Laidlaw doctrine; the only way under the cir- cumstances of this case" that Respondent could release it- self from the impact of the duty imposed by the doctrine was to offer the employees their old jobs back, or substan- tially equivalent jobs.'2 This it had not done nor did it do except as to Daniels. Hence, under the Laidlaw doctrine, when Respondent discharged employees for refusing to ac- cept jobs which were neither their old prestrike jobs nor substantially equivalent jobs, it violated Section 8(a)(3) and (1) of the Act. However, since Respondent did offer to Dan- iels the same position she had filled before the strike, its discharge of her was not discriminatory and the allegations in the complaint as to her are dismissed. As to the four other alleged discriminatees it is obvious that the jobs offered them were not only "newly" created Christian's credited and uncontroverted testimony. 9 In August 1978. the five alleged discriminatees were offered reinstate- ment to their former positions to perform the same duties they performed :ior to the strike. It was stipulated that these reinstatement offers foreclosed the accumulation of further backpay if any. : Respondent in its brief expresses the role thusly: It is beyond cavil, of course, that, absent a legitimate and substantial business justification, economic strikers who unconditionally apply for reinstatement are generally entitled offers of reinstatement to their for- mer or substantially equivalent positions when such positions become available. "Respondent contends that the Union waived any rights of the discharg- ees to insist upon reinstatement to the positions they occupied prior to the strike. The credible facts do not support this contention. Union negotiator Richardson expressed the situation aptly and credibly: All I can tell you is that if anybody thinks I would have ever agreed to calling females back and insisting that their final offer to go back to work that they have to lift 62 pound boxes continuously during their shift and pull a skid weighing 1724 punds, then they're out of their minds. ' Commenting upon the Laidlaw decision the Board has said in C. H. Guenther & Son, Inc.. dh/a Pioneer Flour Mills. 174 NI.RB 1202, 1203 {1969,: we hold that the replaced economic strikers who have made an uncon- ditional application for reinstatement are entitled to full reinstatement to fill substantially equivalent positions that were created by the depar- tue of permanent replacements and to new positions of the same kind that opened up thereafter.... jobs which did not exist as such before the strike but also were more strenuous and mentally exacting than their old jobs as production line workers, which jobs were still in existence and were potentially available. Pearce's opinion of the jobs verifies these conclusions.' 3 The jobs offered on February 1, 1978, were neither the same jobs nor substan- tially equivalent jobs. In that Respondent has shown no legitimate and substantial business justification for its fail- ure to accomodate the Laidlaw doctrine, its discharges of Moore, Butler, Swearinger, and Beason for failure to accept the jobs assigned to them were in violation of Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW I. Respondent is engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act and it will effectuate the policies of the Act for jurisdiction to be exercised herein. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By unlawfully discharging Betty Jean Moore, Lutricia Butler, Amy Swearinger, and Vernell Beason on February 1, 1978, the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Since it has been found that Respondent violated Section 8(a)(3) of the Act by discharging Betty Jean Moore, Lutri- cia Butler, Amy Swearinger, and Vernell Beason on Febru- ary 1, 1978, and that each has been offered her former posi- tion, it is ordered that it make each of them whole for any loss of earnings they may have suffered by reason of Re- spondent's discriminatory acts by paying to them the sum of money they would have earned from the date when an opening for their former position became available to each one respectively, or a substantially equivalent position, to the date when they were offered their former positions, with interest thereon to be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and Flor- ida Steel Corporation, 231 NLRB 651 (1977)." 3 Pearce testified: All in all, if I had to rate it, it is a harder position due to the fact they have to pull the skid. [Mlentally they required a little more on the ball to be a line supplier. You know, it's not much to sit there and load a box, but it took a little bit to remember what code there was for the day, being able to add 14 days to that to find out what the expiration day was, knowing that there was a day of grace, what month it was. It was about a six or seven digit code and you have to know how it works. " See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 490 BURTON PARSONS & CO.. INC. Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following recommend- ed: ORDER ' The Respondent, Burton Parsons & Co., Inc., Seat Pleas- ant, Maryland, its officers, agents, successors, and assigns, shall: I. Cease and desist from unlawfully discharging former strikers for refusing to accept job offers which are neither their positions held immediately prior to the strike nor sub- stantially equivalent positions, in violation of Section 8(a)(3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the Act: (a) Make whole Betty Jean Moore, Lutricia Butler, Amy Swearinger, and Vernell Beason for any loss of earnings they may have suffered by paying to them the sum of money they would have earned from the date when an opening for their former positions became available to each one respectively, or a substantially equivalent position. to 15 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 date they were offered their former positions. with inter- est thereon, as set forth in the section of this Decision enti- tled "The Remedv." (b) Preserve and. upon request. make aailable to the Board or its agents, for examination and copying. all pay- roll records, social security payment records. timecards. personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its plant in Seat Pleasant, Maryland. copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional [)irector for Re- gion 5, after being duly signed by Respondent's representa- tive, shall be posted by it 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 insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 5, in writ- ing, within 20 days from the date of this Order. what steps Respondent has taken to comply herewith. IT IS FURTHER RF(COMMENDII) that the allegations in the complaint in respect to Geraldine Daniels be dismissed. '6 In the event that this Order is enforced by a Judgment of a Inited States Court of Appeals. the words in the notice reading "Posted hb Order ' the National Labor Relations Board" shall read "Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the Na- tional Labor Relations Board." 491