ABS Co.

National Labor Relations Board - Board Decisions

Mar 30, 1984

269 N.L.R.B. 774 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ashtabula Forge, Division of ABS Company and
Mary F. Duff. Case 8-CA-15317
30 March 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN, HUNTER, AND DENNIS
Upon charges filed by Mary F. Duff, the Charg-
ing Party, against Ashtabula Forge, Division of
ABS Company (the Respondent), 30 October 1981
the General Counsel of the National Labor Rela-
tions Board, by the Acting Regional Director for
Region 8, issued a complaint and notice of hearing
15 December 1981.
The parties entered into a stipulation and moved
to transfer this proceeding directly to the Board
for findings of fact, conclusions of law, and the is-
suance of a decision and order. The parties waived
a hearing before an administrative law judge and
the issuance of an administrative law judge's deci-
sion. The parties also agreed that the charge, com-
plaint and notice of hearing, answer, and stipula-
tion of facts constitute the entire record in this pro-
ceeding.
By order dated 20 September 1982 the Board ap-
proved the stipulation and transferred the proceed-
ing to itself. The General Counsel and the Re-
spondent filed briefs.
The Board has considered the stipulation, the
briefs, and the entire record and hereby makes the
following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Ashtabula Forge Company, a Delaware corpora-
tion, is engaged in the business of manufacturing
bicycle parts at its facility located at 4212 Ann
Avenue, Ashtabula, Ohio, the only facility in-
volved herein. The Respondent annually ships
goods valued in excess of $50,000 directly to points
located outside the State of Ohio. We find that the
Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act, and that it will effectuate the policies of the
Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, Local Union
3567 (the Union), is a labor organization within. the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
The issue before the Board is whether the Re-
spondent violated Section 8(a)(1) of the Act by dis-
269 NLRB No. 138
charging employee Duff after she failed to report
for scheduled work because she refused to cross a
lawful picket line that was maintained by a union
to which she did not belong, for the sole reason
that she feared for her personal safety.
The parties have stipulated that the Union,
which represented a bargaining unit of the Re-
spondent's employees at its Ashtabula facility, en-
gaged in a lawful strike between 16 September and
6 October 1981. Duff was hired by the Respondent
on 24 August 1981 as a receptionist and switch-
board operator and was a probationary employee
at the time of her discharge. Although Duff was
not a member of the striking Union, she did not
return to work on the afternoon of 30 September
1981 because she refused to cross the picket line
that was established at the entrance of the Re-
spondent's Ashtabula facility.
Duff reported to work on I and 2 October at the
Respondent's Lakeshore Metal's facility, but on 5
October she telephoned the Respondent to advise
that she would not report to work at the Ashtabula
facility because she feared that crossing the picket
line would jeopardize her bodily safety. The Re-
spondent then advised Duff that she would be dis-
charged if she failed to report to work as sched-
uled and that the Respondent would provide an
escort for her when she walked past the picket
line. Duff refused to report to work and the Re-
spondent discharged her during the afternoon of 5
October 1981.
On 7 October Duff requested reinstatement
which was refused by the Respondent
Relying primarily on NLRB v. Union Carbide
Corp., 440 F.2d 54 (4th Cir. 1971), cert. denied 404
U.S. 826 (1971), the Respondent contends that a
nonstriking employee who refuses to cross a lawful
picket line, based on fear alone, is not engaging in
protected activity under Section 7 of the Act.
The General Counsel argues that the Board in
Congoleum Industries, 197 NLRB 535 (1972), ex-
pressly rejected Union Carbide, above, and has con-
sistently held that nonstriking employees who
honor lawful picket lines are engaging in protected
activity, regardless of their personal motives.
ANALYSIS AND FINDINGS
We find, on the record as a whole, that the Re-
spondent violated Section 8(a)(1) of the Act when
it discharged employee Mary F. Duff.
It is well established that nonstriking employees
who refuse to cross a picket line maintained by
their fellow employees have made common cause
with the strikers, are engaged in protected concert-
ed activities as defined in Section 7 of the Act, and
may not be lawfully discharged for these activi-
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ABS CO.
ties. According to Board policy, it is not material
that the employee who refuses to cross the picket
line is not a member of the picketing union, is not
represented as part of the collective-bargaining
unit, or is motivated solely by personal fear.2
Based on the facts as stipulated by the parties,
employee Duff was discharged because she refused
to cross the picket line maintained by a union to
which she did not belong. The Respondent's sole
argument is that Duff was motivated by fear alone,
which the Respondent contends is not protected
activity under Section 7 of the Act. On the con-
trary, the focal point of the Board's inquiry is the
nature of the activity itself; the employee's motives
for engaging in the activity are irrelevant. Accord-
ingly, we find that the Respondent discharged Duff
for engaging in an activity protected by Section 7
of the Act, and that the Respondent thereby com-
mitted an unfair labor practice within the meaning
of Section 8(a)(1) of the Act.
REMEDY
Having found that the Respondent has engaged
in an unfair labor practice within the meaning of
Section 8(a)(1) of the Act, we shall order that it
cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the
Act.
Having found that the Respondent terminated
the employment of Mary F. Duff and failed and re-
fused to reemploy her because she engaged in con-
certed activities for mutual aid or protection guar-
anteed by the Act, we shall order the Respondent
to offer her immediate reinstatement to her former
position or, if it no longer exists, to a substantially
equivalent position, without prejudice to her se-
niority or any other rights and privileges previous-
ly enjoyed, and make her whole for any loss of
earnings she may have suffered by reason of the
discrimination against her, by making payment to
her of a sum of money equal to the amount she
normally would have earned from the date of her
termination to the date of reinstatement, less her
net interim earnings, in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest
as computed in Florida Steel Corp., 231 NLRB 651
(1977).
CONCLUSIONS OF LAW
By terminating the employment of Mary F. Duff
because she engaged in concerted activities for the
t NLRB v. Southern Greyhound Lines. 426 F. 2d 1299 (5th Cir. 1970);
NLRB v. Difco Laboratories, 427 F.2d 170 (6th Cir. 1970).
a Overnite Transportation Ca, 212 NLRB 515 (1974); Congoleum Indus-
tries, 197 NLRB 534 (1972); Cooper Thermometer Co, 154 NLRB 502
(1965).
mutual aid or protection guaranteed to employees
by the Act, the Respondent has engaged in and is
engaging in an unfair labor practice affecting com-
merce within the meaning of Section 8(a)(1) and
Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law
and on the entire record, we issue the following.
ORDER
The National Labor Relations Board orders that
the Respondent, Ashtabula Forge Division of ABS
Company, Ashtabula, Ohio, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Interfering with the rights of employees to
engage in protected concerted activity by discharg-
ing employees for refusing to cross a lawful picket
line established at its premises.
(b) 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 designed
to effectuate the policies of the Act.
(a) Offer Mary F. Duff immediate and full rein-
statement to her former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other
rights or privileges previously enjoyed, and make
her whole for any loss of earnings and other bene-
fits suffered as a result of her discharge, in the
manner set forth in the remedy section of the deci-
sion.
(b) Remove from its files any reference to the
unlawful discharge of Mary F. Duff on 5 October
1981 and notify her in writing that this has been
done and that the discharge will not be used
against her in any way.
(c) 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 the terms of this
Order.
(d) Post at its plant in Ashtabula, Ohio, copies of
the attached notice marked "Appendix."3 Copies
of the notice, on forms provided by the Regional
Director for Region 8, after being signed by the
Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
' 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
775
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
CHAIRMAN DOTSON, dissenting.
I cannot join my colleagues in finding that the
Respondent violated section 8(a)(1) of the Act by
discharging employee Duff for failing to report to
work as a result of here fear of crossing a picket
line set up outside the Respondent's facility. As in-
dicated in the stipulation of facts, on 5 October
1981 Duff informed the Respondent in advance
that she would not be reporting for work that day
because she feared bodily harm if she had to cross
the picket line. Moreover, the stipulation estab-
lishes that Duff's sole reason for refusing to cross
the picket line was her fear of physical harm. In
these circumstances, I see no compelling basis for
treating Duff as a striker and according her the
protection of the Act. Thus, since I would not find
that Duff's refusal to cross the picket line was pro-
tected activity, I would dismiss the 8(a)(1) com-
plaint. See NLRB v. Union Carbide Corp., 440 F.2d
54, 56 (4th Cir. 1971), cert. denied 404 U.S. 826
(1971).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
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 interfere with the rights of em-
ployees to engage in protected concerted activity
by discharging them for refusing to cross a lawful
picket line established at out premises.
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 offer Mary F. Duff immediate and full
reinstatement to her former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other
rights or privileges previously enjoyed and WE
WILL make her whole for any loss of earnings and
other benefits resulting from her discharge, less any
net interim earnings, plus interest.
WE WILL notify her that we have removed from
our files any reference to her discharge and that
the discharge will not be used against her in any
way.
All our employees are free to engage in concert-
ed activities for their mutual aid and protection
within the meaning of Section 7 of the Act or to
refrain from such activities.
ASHTABULA FORGE, DIVISION OF
ABS COMPANY
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