Compacted Powdered Metals, Inc.

National Labor Relations Board - Board Decisions

Aug 1, 1977

231 N.L.R.B. 68 (N.L.R.B. 1977)

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:
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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