Burton Parsons & Co.

National Labor Relations Board - Board Decisions

May 23, 1979

242 N.L.R.B. 487 (N.L.R.B. 1979)

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