C-E Natco/C-E Invalco

314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C-E Natco/C-E Invalco and United Steelworkers of America, AFL-CIO-CLC. Case 16-CA-10037 28 November 1986 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 28 September 1984 the National Labor Rela- tions Board, by a three-member panel, 'issued a de- cision in the above-entitled case,' finding, contrary to the decision of the administrative law judge, that the Respondent's lockout of its employees did not violate Section 8(a)(1), (3), and (5) of the Act. The Board further found, in agreement with the judge, that the Respondent had violated Section 8(a)(1), (3), and (5) of the Act by bargaining individually with its employees, offering them terms for return- ing to work that differed from those offered to the Union. The Board's order altered the judge's remedy by, among other things, omitting provi- sions requiring the Respondent to reinstate the locked-out employees and make them whole. Thereafter, the Union filed a motion for recon- sideration, and the General Counsel filed a motion for reconsideration and amendment of Board Order. In their motions, the Union and the General Counsel contend that the Board erred in failing to order as a remedy for the violations found that the Respondent make whole the locked-out employees for the loss of pay they suffered, from the time that the Respondent made its unlawful individual offers to the employees until the time that the lockout ended and the employees were reinstated. The Union and the General Counsel contend that such a make-whole remedy is necessary to undo the ef- fects of the violation. The Respondent filed a memorandum opposing the motions of the Union and the General Counsel, contending that a make- whole remedy would be inappropriate.2 1 272 NLRB 502. Members Babson and Stephens did not participate in that decision. 2 On 9 October 1984 the Union filed a petition for review of the Board's decision in the United States Court of Appeals for the Third Cir- cwt. On 14 November 1984 the Union and the General Counsel filed a joint motion requesting the court hold in abeyance further proceedings on the petition for review until the Board acted on the motion for recon- sideration filed with it by the Union and the motion for reconsideration that was to be filed with the Board by the General Counsel. On 20 No- vember 1984 the court, acting on the joint motion, granted the Union 40 days from entry of the Board's orders on the motions for reconsideration to serve and file its brief and appendix in the court. The court also direct- ed the General Counsel to notify the court clerk's office immediately after the Board has filed its order on the last reconsideration motion The Board has refrained from filing with the court the record in this case while the motions for reconsideration have been pending before the Board. The National Labor Relations Board had dele- gated its authority in this proceeding to a 'three- member panel. Having considered the Board's earlier decision and the record in light of the motions for reconsid- eration and the memorandum in opposition, we conclude that make-whole relief is warranted to remedy the violations found and that the Board erred in failing to order such relief in its. previous decision. In that regard, only employees who, in- duced by the Respondent's unlawful individual offers, ceased adherence to their Union's bargain- ing position, dealt directly with the Respondent, and accepted the offer were able to return to work and resume receiving remuneration. Thus, employ- ees who insisted on their right to union representa- tion on the issue of resuming work suffered a loss of pay as a result of exercising this right. Accord- ingly, a make-whole remedy is necessary to undo the effects of the Respondent's unlawful conduct. See, e.g., Lion Oil Co., 109 NLRB 680, 686-688 (1954), enf. denied 221 F.2d 231 (8th Cir. 1955), revd. 352 U.S. 282 (1957), enfd. in pertinent part 245 F.2d 376 (8th Cir. 1957). We shall amend the Board's previous Order accordingly.3 AMENDED REMEDY Having found that the Respondent unlawfully sought to bargain directly with employees as to the terms and conditions under which they would be permitted to work and to condition an employee's employment on a willingness to accept such terms and conditions in violation of the Respondent's duty to bargain with the Union, we shall order the Respondent to cease and desist therefrom and to make the employees whole for any loss of earnings and other benefits, computed on a quarterly basis from the date the Respondent made its unlawful in- dividual offers until date of proper offer of rein- statement, less any net interim earnings, as pre- scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in Florida Steel Corp., 231 NLRB 651 (1977).4 ORDER The National Labor Relations Board orders that the Respondent, C-E Natco/C-E Invalco, Tulsa, Oklahoma, its officers, agents, successors, and as- signs, shall s In support of its motion, the General Counsel advances an argument that the Respondent's unlawful individual offers converted the lockout into an unlawful lockout and that a make-whole remedy is warranted on this basis also. In light of our disposition of this case, we find it unneces- sary to pass on this argument. 4 The Union and the General Counsel do not seek an order of rein- statement, apparently because all the locked-out employees were reinstat- ed. Accordingly, we do not order reinstatement. 282 NLRB No. 47 C-E NATCO/C-E INVALCO 1. Cease and desist from (a) Refusing to bargain collectively with the Union as the exclusive bargaining representative of employees in the appropriate unit by seeking to bargain directly with employees as to the terms and conditions under which they will be permitted to work. (b) Discouraging membership in the Union by conditioning a unit employee's active employment on the willingness to accept as a working condition a proposal whose tender constitutes a violation of the Respondent's duty to bargain with the Union. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Make employees whole for any loss of earn- ings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of this decision. (b) Preserve and, on request, make available to the ' Board or its agents for examination and copy- ing all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under this Order. (c) Post at its Tulsa, Oklahoma facilities copies of the attached notice marked "Appendix."5 Copies of the notice, on forms provided by the Re- gional Director for Region 16, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 16 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices, are, not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the, date of this Order what steps the Respondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 315 The National Labor Relations Board has found that we violated the National Labor Relations Act and_ has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain collectively with the United Steelworkers of America, AFL-CIO- CLC, as the -exclusive bargaining representative of the employees in the appropriate unit by seeking to bargain directly with such employees as to the terms and conditions under which they will be per- mitted to work. The appropriate unit is: All production and maintenance employees, warehousemen, shop janitors, first aid attend- ants, field service men and the local truckdriv- ers employed by us at our Tulsa, Oklahoma, plant, but excluding all office clerical employ- ees, over-the-road truckdrivers, gatemen, watchmen, timekeepers, and supervisors as de- fined in the National Labor Relations Act. WE WILL NOT discourage membership in the Union by conditioning a unit employee's active em- ployment on his willingness to accept as his work- ing conditions a proposal whose tender constitutes a violation of our duty to bargain with the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL make whole locked-out employees who did not accept our unlawful individual pro- posals to return to work for any loss of pay or ben- efits suffered thereby. C-E NATco/C-E INVALCO 11 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al 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."