General Electric Co.

National Labor Relations Board - Board Decisions

Nov 22, 1948

80 N.L.R.B. 510 (N.L.R.B. 1948)

III the Matter of GENERAL ELECTRIC COMPANY and UNITED ELECTRICAL,
RADIO & MACHINE WORKERS OF AMERICA, C. I. 0., IN BEHALF OF ITS
AFFILIATED GENERAL ELECTRIC LOCALS
Case No. 20-C-4517.-Decided November 22, 1948
DECISION
AND
ORDER
On May 2 ;,19 47, Trial Examiner Isadore Greenberg issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto.' The Trial Examiner further found that
the Respondent had not engaged in other unfair labor practices alleged
in the complaint and recommended that the complaint be dismissed in
these regards. Thereafter, exceptions to the Intermediate Report
were filed by the Respondent, the Union, and counsel for the Board.
Supporting briefs were filed by the Respondent and counsel for the
Board. The Board 2 heard oral argument at Washington, D. C., in
which the Respondent and the Union participated.
The Board has considered the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and briefs, oral argument before the Board,
and the entire record in the case, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner with the follow-
ing modifications and additions.
The Trial Examiner found, as alleged in the complaint, that the
Respondent, by refusing to credit its striking employees with con-
tinuous service for the 9-week period of the strike, impaired their
seniority standing, and decreased their vacation and pension benefits
1 Section 8 ( 1) and 8 ( 3) of the National Labor Relations Act, which the Trial Examiner
found were violated are continued in Section 8 (a) (1) and 8 (a) (3) of the Act as amended
by the Labor Management Relations Act, 1947.
2 Chairman Herzog was not present , but has read the transcript of the oral argument.
80 N. L. R. B., No. 90.
510
GENERAL ELECTRIC COMPANY 511
in violation of Section 8 (1) and (3). For reasons discussed below,
we agree in part and disagree in part with this finding.
For a period of about 9 weeks, employees in certain bargaining
units engaged in an economic strike. As a result of the strike and
the activities of the strikers, other employees not in these bargaining
units were unable to work. Except for certain necessary maintenance
work, there was a complete cessation of operations at the Respondent's
plants. Upon the termination of the strike and resumption of opera-
tions, the Respondent classified its employees into two groups on the
basis of their willingness to work during the strike, for the purpose
of granting or withholding "continuous service credit" for the period
of the strike. The Respondent regarded all employees in the striking
units as voluntarily absent from work, and refused to credit them with
service credit for the period of the strike. All other employees who
indicated a willingness to work by returning to work as soon as
physically possible were given service credit and paid full wages for
the entire period of the strike.
As admitted by both the Union and the Respondent at the oral
argument before the Board, continuous service credit did not itself
constitute compensation. Nor was it per se a condition of employ-
ment. It was simply a basis for the determination of certain real
benefits, such as seniority, vacations, and pensions, pursuant to the
collective bargaining contract in force. It follows that the legality
of the various effects of Respondent's action upon the conditions and
tenure of employment of its employees must be considered separately.3
Insofar as the effect of the Respondent's action was to deny to the
strikers the accrual of vacation and pension benefits during the period
of the strike and to permit the accrual of such rights by non-strikers,
we agree with the Respondent that it was not violative of the Act.
We have recently held that deferred benefits like retirement and
vacation benefits are, in reality, a form of wages.4 It is axiomatic
that the Respondent is not required under the Act to finance an
economic strike against it by remunerating the strikers for work not
performed. While it is true that non-strikers were compensated
by the accrual of vacation and retirement benefits, as well as by
money wages, for the period of the strike even though they did no
3 We agree with Mr. Murdock that the enumerated exceptions to the continuity-of-service
plan , fully set forth in his separate opinion, do not specifically provide for tolling of con-
tinuous service credit during strikes However , this does not necessarily mean, in our
opinion, that the Respondent has thereby contracted away its right to differentiate, in .i
manner consistent with the Act, between strikers and non -strikers in the application of
the continuous service plan In any event , even though under the contract the strikers
may have enforceable rights in other forums , it does not follow that the Respondent ' s treat-
ment of the strikers constituted per se an unfair labor practice.
4 Matter of Inland Steel Co., 77 N. L R B. 1
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
actual work, we do not regard this as discriminatory against the
strikers.5 As the Respondent argues, these employees made their
services available to the Respondent during the strike and remained
subject to its call at all times . In effect, they were employed in a
stand-by capacity, which is compensable as a matter of laws More-
over, in our opinion, an employer whose operations are strike-bound
should be permitted to compensate non-strikers for their involuntary
loss of time for the purpose of holding intact that portion of his
working force. These economic considerations convince us that
Respondent's action constituted no unlawful disparity of treatment
with respect to vacation and retirement benefits.7 To this extent,
the Trial Examiner is reversed.
However, the effect of the Respondent's action on the employees'
seniority standing must be distinguished. In the instant case, sen-
iority, in accordance with plant practice and the subsisting bargain-
ing contract, can affect the tenure of employment of individual em-
ployees. By its very nature seniority is a relative matter, and the
tolling of the accrual of seniority of any particular employee or
group of employees necessarily improves the relative seniority of the
other employees involved. Thus at the beginning of the strike all
employees had acquired a fixed relative seniority which, but for the
strike, would have remained constant. The effect of the Respond-
ent's action in tolling the seniority of the strikers during their par-
ticipation in the strike, and at the same time permitting other em-
ployees to accrue seniority for the corresponding period, changed
the prestrike relative seniority standing of the employees to the
detriment of the strikers. As a result the strikers became more
vulnerable to lay-off or discharge in the event of a subsequent neces-
sary reduction in force.8
5 We do not agree with the suggestion of Mr. Murdock , set forth below, that the Court's
opinion in the Republic Steel case ( 114 F. ( 2d) 820 ) is here applicable Unlike the situa-
tion here , no issue was presented in that case as to whether the reinstatement of economic
strikers without vacation pay for the period of the strike was per se an unfair labor prac-
tice. Rather , the Court merely upheld the Board ' s discretionary power to remedy the
effects of the employer 's prior unfair labor practices and resultant unfair labor practice
strike, by ordering the reinstatement of the strikers upon application, without loss of
substantive rights, including vacation benefits.
8 Social Security Board v. Nserotko , 327 U S. 358.
7In reaching a contrary conclusion , Member Murdock apparently attaches no significance
to the fact that at all times material the non-strikers , unlike the strikers , made their services
available to the Respondent , for which they were lawfully paid their regular wage. Pre-
sumably Mr . Murdock's result would be the same even if the non-strikers had been able to,
and actually had, worked.
8 Seniority was employer -wide, not unit-wide . As Indicated by the Trial Examiner, the
possibility , without regard to the actual frequency , of interdepartmental transfers, and of
transfers into the employment of Respondent from one of its subsidiaries with retained
seniority, together with the fact that certain maintenance employees actually worked
periodically during the strike with the consent of the Union , prevent the conclusion that
relative seniority rights of the strikers could not be adversely affected as the result of their
concerted activity.
GENERAL ELECTRIC COMPANY 513
Thus, it would appear unquestionable that the effect of the Re-
spondent's action with respect to seniority was to penalize the strikers
because of their concerted activities. Unlike wages, vacations, and pen-
sions, whose sole aspect is monetary compensation for work performed
during the employment relationship, relative seniority, as applied in
the Respondent's plants, in addition to any compensatory character-
istics it may possess, is one of the factors upon which the individual
employee's tenure of employment may depend. It is well settled that,
except to the extent that a striker may be replaced during an economic
strike, his employment relationship cannot otherwise be severed or im-
paired because of his strike activity.9
We therefore find, as did the Trial Examiner, that the modification
of the seniority of the striking employees in relation to non-striking
employees was violative of Section 8 (3) and (1) of the Act 10
We also find, in accordance with the Trial Examiner's findings, that
Respondent did not refuse to bargain with the Union in violation of
Section 8 (5) of the Act, and shall therefore dismiss that allegation of
the complaint.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c) of
the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent, General Electric Com-
pany, and its officers, agents, successors, and assigns shall :
1. Cease and desist from discouraging membership in any labor or-
ganization of its employees, by in any manner discriminating against
any of its employees in regard to their tenure of employment, or any
term or condition of their employment.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Restore on the records of all the Respondent's employees who
participated in the strike of January 15, 1946, to March 18, 1946, from
whose records continuous service credit for the period of said strike has
been deducted, seniority credit for such period so that the relative pre-
strike seniority of all the Respondent's employees is reestablished; 11
(b) Post immediately at all of its plants listed in Appendices A-H
of the Amended Complaint herein, copies of the notice attached hereto,
9 N. L. R. B. V. Mackay Radio & Telegraph Co. , 304 U. S 333 , 345-346.
10 The provisions of the collective bargaining contract involved made no specific provision
relative to the effect of a strike upon the accumulation of service credit, nor was it argued
by the Respondent that the provisions of this ,ntract were controlling.
11 This necessarily includes reinstatement with back pay if any lay-offs have been effected
on the basis of the discriminatorily reduced relative seniority.
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
marked "Appendix A." 12 Copies of said notice, to be furnished by the
Regional Director for the Second Region, shall, after being duly signed
by the Respondent, be posted by the Respondent immediately upon
receipt thereof, and maintained by it for sixty (60) consecutive days
thereafter in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered, defaced, or
covered by any other material;
(c) Notify the Regional Director for the Second Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the allegations of the complaint that the
Respondent refused to bargain collectively with the Union be, and they
hereby are, dismissed.
MEMBER MURDOCH, dissenting in part :
I agree with the majority that the Respondent's action in tolling
the continuous service credit of its striking employees for the period
of the strike in connection with their seniority was discrimination
violative of the Act. But contrary to my colleagues, I would go
further and find that the tolling of the continuous service credits of
the striking employees with respect to the accrual of vacation and
pension benefits likewise constituted discrimination violative of the
Act under the circumstances of this case. I find it unnecessary to
decide what the law would be on these questions if there were no
contractual provision covering the situation, because the contract
between the parties seems to me to be dispositive of this case.13
Under the terms of the contract between the Respondent and the
Union which was in effect during the strike," continuity of service
begins with the entrance date of employment and "is maintained unless
an employee" (emphasis supplied) :
12 In the event that this Order is enforced by a decree of a Circuit Court of Appeals, there
shall he inserted before the words , "A DECISION AND ORDER" the words , "DECREE OF
THE UNITED STATES COURT OF APPEALS ENFORCING."
13 If I were to disregard the cdntractual provisions , as the majority has done , and was
confronted with necessity of deciding the case without them , I would find great difficulty in
reconciling the result reached by the majority on the issue on which we differ, with the
doctrine of the Republic Steel case, 114 F ( 2d) 820 , which is relied on by the Trial
Examiner . The Court of Appeals for the Third Circuit there pointed out that striking
employees on rein3tatement are entitled to be "treated in all matters involving seniority
and continuity of employment as though they had not been absent from work " ( Emphasis
supplied ) The doctrine was specifically applied in that case to vacation rights of strikers.
34 The strike was between January 15, 1946, and March 18 , 1946 The contract under its
terms did not terminate as a result of the Union's earlier notice of cancellation , until April
1, 1946.
GENERAL ELECTRIC COMPANY 515
(a) Leaves voluntarily or is discharged.
(b) Absents himself from duty for two consecutive weeks or
longer without satisfactory explanation.
(c) Absence because of illness, fails to keep his division head
notified monthly or is absent for a continuous period of more
than one year.
(d) Is not reinstated within one year from date of lay off
for lack of work.
(e) Is notified within a year he may return but fails to return
or to give satisfactory explanation within two weeks .15
It seems obvious, under well-established rules of construction, that
the agreement of the parties that continuous service is maintained
unless one of the above five enumerated exceptions occurs, precludes
the respondent from invoking any other ground for tolling continuous
service credit. It likewise seems clear that none of the enumerated
grounds for tolling continuous service were designed to or do cover
a strike situation.,, We are thus confronted with the simple situa-
tion of an employer who has made an agreement with a union that
continuous service credit shall be maintained with certain exceptions
which do not include strikes; but who nevertheless in violation of
the agreement tolls the continuous service credit of the striking em-
ployees because they were on strike. Where discriminatory treat-
ment as between strikers and non-strikers is in violation of a contract,
it seems to me that such disparate treatment must be considered to be
discrimination violative of Section 8 (3), regardless of what the
employer's right to differentiate between strikers and non-strikers
might be absent any such contract. Moreover, it may be pointed out
that the result which I believe proper here is compelled not only by
the contract provision, but also by the strike settlement agreement
which contains the provision that "there shall be no discrimination
against any employee by either the Company or the Union."
Accordingly, I would find that the Respondent's deductions from
the continuous service records of the strikers discriminated against
them in violation of Section 8 (3) of the Act not only with respect to
seniority but also with respect to vacation and pension rights.
16 Plainly actual work is not the basis for accrual of continuous service credit because it
may be acquired during absences and while laid off under this contract.
16 That interpretation of the contract provision is necessarily implicit in the decision of
the majority, because if the contiact specifically provided for tolling of continuous service
credit (luring strikes , there would he no real problem. Yet the majority decision fails to
discuss the contract provision and approaches the issues of the case as though the case
arose in a context without any such provision
817319-49-vol 8O 34
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MEMBER GRAY, dissenting in part:
I concur in the majority's findings and order, except insofar as the
majority finds that the modification of the seniority of the striking
employees was violative of Section 8 (3) and (1) of the Act.
The right to strike is a legal, a constitutional right. It certainly
is not a work-right nor a job-right. Indeed a strike is the direct
opposite of work.
The accrual of seniority is one of the incidents of actual employ-
ment, no less than the wages received by the standby employees the
denial of which wages to the striking employees the majority finds
to be non-discriminatory. The principal value to an employer of
an employee is his continued willingness to perform on the job, doing
the work he is hired and paid to do. I cannot understand how an
employee can earn credit for time during which he is required to be
"ready and willing to work" while he completely nullifies that con-
dition by refusing to work.
The Employer's practice of not here crediting seniority is not, in my
opinion, to be considered as a penalty on the strikers. Rather, as
in the case of loss of wages during the period in question, it is one of
the economic risks assumed by the employees who engaged in a
strike not caused by unfair labor practices of their Employer.
I would therefore, dismiss the complaint in its entirety.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in any labor organization
of our employees, by in any manner discriminating against any of
our employees in regard to their tenure of employment, or any
term or condition of their employment.
WE WILL make whole all of our employees who were employed
in the bargaining units which participated in the strike of Janu-
ary 15, 1946, to March 18, 1946, for any loss or diminution in
their relative pre-strike seniority which they have suffered as a
result of the discrimination against them.
All our employees are free to become or remain members of any labor
organization. We will not discriminate in regard to tenure of em-
ployment or any term or condition of employment against any
GENERAL ELECTRIC COMPANY 517
employee because of membership in or activity on behalf of any such
labor organization.
GENERAL ELECTRIC COMPANY,
Employer.
By ---------------------------------
(Representative ) ( Title)
Dated--------------------
This notice must remain posted for 60 days from the date hereof, and
must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Mr. Jerome I. Macht, for the Board.
Donovan, Leisure, Newton, Lumbard J Irvine, by Messrs. Granville Whittlesey,
Jr., Frederick M. Davenport, Jr, and Paul J. Quinn, of New York, N. Y.; and Mr.
Stuart MacMackin, of Schenectady, N. Y., for the respondent.
Mr. Seymour Linfleld, of New York, N. Y., and Messrs. Joseph Dermody and
Joseph Turkowski, of New York, N. Y., for the Union.
STATEMENT OF THE CASE
Upon a charge filed on August 21, 1946, by United Electrical, Radio & Machine
Workers of America, C. I. 0., on behalf of its affiliated General Electric Locals,
herein called the Union, the National Labor Relations Board, herein called the
Board, by its Regional Director for the Second Region (New York, New York),
issued a complaint dated December 24, 1946, against General Electric Company,
of Schenectady, New York, herein called the respondent, alleging that the respond-
ent had engaged in and was engaging in unfair labor practices within the mean-
ing of Section 8 ( 1), (3), and ( 5), and Section 2 (6) and ( 7) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint,
together with notices of hearing thereon , were duly served upon the respondent
and the Union.
With respect to the unfair labor practices , the complaint alleged in substance :
(1) that the respondent , in violation of Section 8 (1) and ( 3) of the Act , has since
March 18, 1946, failed and refused to credit those of its employees who are repre-
sented by the Union , with continuous service for the period from January 15, 1946,
to March 18 , 1946, during which period the said employees were on strike, thus
depriving said employees of seniority , full amount of paid vacations, full rights
to retirement on pension , and other privileges and conditions of employment, and
(2) that in violation of Section 8 (1) and ( 5) of the Act, the respondent took the
aforesaid action without prior consultation or collective bargaining with the
Union , and has since refused to bargain collectively with the Union with respect
thereto, despite the Union's requests, made on and after April 10, 1946, that the
respondent bargain with it with respect to the said issue . The complaint further
alleged that the respondent committed the aforesaid acts for the reasons that
the employees affected thereby joined or assisted the Union or engaged in other
concerted activities for the purposes of collective bargaining or other mutual aid
or protection.
In its answer, duly filed , the respondent denied in substance that it has refused
to bargain with the Union with respect to its failure to grant continuous service
credit to those of its employees who are represented by the Union, for the period
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they were on strike, and that its aforesaid refusal to grant the said employees:
continuous service credit for such period, constituted an unfair labor practice.
Pursuant to notice, a hearing was held at New York, New York, on February 24,
25, and 26, 1947, before the undersigned, Isadore Greenberg, the Trial Examiner
duly designated by the Chief Trial Examiner. The Board and the respondent
were represented by counsel, and the Union both by counsel and its international
representatives. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues was afforded all parties.
At the hearing, the undersigned, without objection, granted a motion of counsel
for the Board to amend the complaint with respect to the description of various
units of the respondent's employees represented by the Union for purposes of
collective bargaining. A motion by respondent's counsel to amend the answer
was likewise granted without objection. The amended complaint and amended
answer were subsequently admitted into evidence as exhibits so as to make them
parts of the record herein.
At the close of the Board's case, the undersigned denied it motion of respondent's
counsel to dismiss the complaint. Upon the renewal of this motion at the conclu-
sion of the hearing, the undersigned reserved decision. That motion is disposed
of as is hereinafter set forth. A motion by Board counsel to conform the pleadings
to the proofs with respect to minor variances, was granted without objection.
The parties were afforded opportunity to present oral argument to the under-
signed at the close of the hearing, and thereafter to submit briefs and proposed
findings of fact and conclusions of law. Oral argument was presented by counsel
for the Board and the respondent, and a brief and proposed findings of fact and
conclusions of law were received from the respondent.'
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
I. FINDINGS OF FACT
The respondent, General Electric Company, a New York corporation, has its
principal office and place of business in the City of Schenectady, New York. It
operates a large number of plants scattered through the United States of America,
which are engaged in the manufacture, sale, and distribution of machinery, elec-
trical equipment and appliances, and related products, and the repair and serv-
icing thereof. During the year 1946, the respondent in the operation of its said
plants caused to be purchased, and delivered to each of its plants, machinery,
equipment, parts, and other materials valued at in excess of $500,000, of which
more than 50 percent was transported to each of said plants from States other
than the State in which each plant is located. During the same period, the
respondent manufactured, serviced, or repaired at each of its plants products
valued at in excess of $500,000, of which more than 50 percent was transported
from each of said plants to States other than the State in which each plant is
located.
I Pursuant to the findings and conclusions hereinafter made, the undersigned rules as
follows upon the proposed findings of fact and conclusions of law submitted by the
respondent : Proposed findings of fact numbered 1 through 3 ; 15 through 17 , 19 , 20 ; 22 ;
24 ; 27 through 32 . 34 through 38; 40 ; 42 through 45 ; 47 through 49 ; 52 ; 53 ; 56 ; and
57, are accepted. Those numbered 4 through 14 are considered irrelevant and are therefore
rejected , those numbered 18 ; 21 , 23 ; 25 ; 26 ; 33 ; 39 ; 41 ; 46 ; 50 ; 51 ; 54; and 55 are
rejected.
Proposed conclusions of law numbered 1 ; 2; and 4 are accepted. Those numbered 3
and 5 are rejected.
GENERAL ELECTRIC COMPANY 519
The respondent concedes that it is engaged in commerce within the meaning of
the Act.
II. THE ORGANIZATIONS INVOLVED
United Electrical, Radio & Machine Workers of America, C. I. 0., and its affili-
ated General Electric locals, are labor organizations admitting to membership
employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. The factual background
It is undisputed 2 that at all times herein material, upwards of 50 locals of the
Union had been duly designated to represent approximately 100,000 of the re-
spondent's employees in its plants located throughout the country, and compris-
ing units appropriate for the purposes of collective bargaining. To serve as a
medium of representation for the respondent's employees who have designated
,one of its locals as their collective bargaining agent, the Union maintains a
"General Electric Locals Conference Board," consisting of representatives of the
said locals, which carries on, through a committee, collective bargaining negotia-
tions with the respondent on a national scale. A national collective bargaining
agreement between the respondent and the Union, renewed with modifications
annually, has been in existence since 1938.
On or about August 22, 1945, shortly after the end of hostilities in World War
II, the Union made a request to the respondent for "a substantial increase in
wages." Thereafter the parties engaged in negotiations with respect to the
requested wage increase, but did not come to any agreement. On December 21,
1945, during the course of the unsuccessful negotiations between the Union and
the respondent, the latter served on the Union notice of cancellation of the con-
tract then in effect between them. As provided by Article 28 of the contract, the
agreement consequently was to terminate on April 1, 1946.
On January 15, 1946, the employees of the respondent belonging to those col-
lective bargaining units represented by the Union, with one exception,3 went out
on strike in support of the Union's wage demand. It is stipulated that this strike
was purely an "economic," as distinguished from an "unfair labor practice,"
strike, and that it was called by the Union after due compliance on its part with
the requirements of the Smith-Connally Act.
On March 13, 1946, the respondent and the Union reached an agreement settling
the strike, the terms of which were reduced to writing, containing, inter alta,
the following provisions :
1. A general wage increase of 181/20 per hour will be granted to all
hourly and salary rated employees represented by the UE. This increase is
to be effective on March 18, 1946.
3. There will be no discrimination against any employee by either the com-
pany or the Union.
2 Unless otherwise indicated, all the findings herein made are based upon undisputed
evidence
2 The respondent's employees at its Tell City, Indiana, plant, who were represented by
Local 805 of the Union, did not join in the strike.
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. The Company agrees to extend the termination date of the existing
contract to July 1, 1946 . Prior to that date , the Company and the Union
will make every effort to reach an agreement on a new contract. If one
or more issues are not settled, the Company and the Union will then con-
sider whether or not such issues will be referred to arbitration . The new
contract will have an effective date of April 1, 1946.
Pursuant to the settlement agreement , the striking employees returned to
work on or about March 18, 1946 , and thereafter representatives of the respond-
ent and the Union began to conduct negotiations for a new collective bargaining
contract . At the first negotiating meeting between the parties following the
strike, which was held on April 10 , 1946 , Vice-president E. D. Spicer , in charge
of employee relations for the respondent , announced that the respondent in-
tended to deduct from the "continuous service records" of those of its employees
who had engaged in the strike , the approximately 9 weeks they had been on
strike.
B. Discrimination in regard to tenure and terms or conditions of
employment of the returned strikers
Immediately following the strike , the respondent began to follow the practice,
which has since been continued , of "not giving [continuous service] credit for
the time" they had been on strike to those of its employees who had engaged in
the 1946 strike.` Pursuant to that policy the respondent began "correcting the
service dates" shown on the personnel records of such employees , in order to
achieve that result . The clerical operation by which this "correction " was made
was described at the hearing by Spicer as noting on each record that the be-
ginning date of the employee 's service was to be reckoned as 9 weeks ( the period
of the strike ) later than the actual beginning date . Thus, if a returned striker
had actually entered into the respondent 's employ on January 1, 1940, his en-
trance date , after the strike, would be considered to be 9 weeks later than Jan-
uary 1, 1940 , in computing his "continuous service" for such purposes as vaca-
tions, retirement , and seniority.
The foregoing policy has had the following practical effects on the conditions
of employment of these employees considered by the respondent to have engaged
in the strike : Since, in order to be eligible for a paid vacation , an employee must
In determining which of its employees had been "on strike," the respondent assumed
that all of its employees who were members of the bargaining units represented by the
Union, and who did not work during the period in question , were engaged in the strike.
The employees represented by the Union at the respondent ' s Tell City, Indiana , plant,
who voted against the strike, were not regarded as strikers . Certain union members, who,
by arrangement with the Union , came into the plants to perform necessary maintenance
work, were given continuous service credit for a full week whenever , during any week, they
did any work for the respondent during the strike. Employees who were not represented
by the Union , but who notified the respondent that they would support the strike by re-
fusing to cross the picket lines , were regarded as strikers , and were deprived of continuous
service credit for the period of the strike . All other employees who were not represented
by the Union were regarded as non-strikers , and were paid and given continuous service
credit for the period of the strike , even though they did not work, since the respondent
considered them "on call," and excused their absence from work on the ground that with the
plants closed , there was no work for them fo do, or that, in view of the picketing by the
Union, it was impossible for them to gain access to the plants . After March 5, 1946, on
which date the Union and the respondent reached an understanding that employees not
represented by the Union were "free to enter the plants" and would not engage in produc-
tion regularly performed by the employees on strike , the respondent did not pay employees
not represented by the Union who did not report to work when called.
GENERAL ELECTRIC COMPANY 521
have completed at least 1 year of continuous service,' those employees who were
hired by the respondent during the last 9 weeks of 1945, and who engaged in the
strike, did not receive the paid vacation which they would have received in 1946
had they not taken part in the strike. This followed from the deduction of 9
weeks' continuous service from their records by the respondent, as above de-
scribed, which resulted in their failing to complete a year's continuous service
credit during 1946.8 Similarly, those hourly paid employees who had more than
1 year of continuous service, but less than 5, and who, but for their participation
in the strike, would have been credited with 2, or 3, or 4 years of continuous serv-
ice by the end of 1946, would not qualify, under the respondent's policy, for an
additional day or days of vacation until the following year. In addition to its
effect on the vacation rights of employees, the tolling of continuous service credit
of the striking employees affected their seniority standing with respect to order
of lay-offs, and the time in which they became eligible to retire under the re-
spondent's pension plan.' With respect to retirement, the respondent's policy of
refusing to credit striking employees with continuous service for the period of
the strike, resulted in delaying each such employee's eligibility for retirement
on pension by 9 weeks. With respect to "seniority"' in governing lay-offs, the
aforesaid policy gave rise to a situation whereby striking employees, after the
strike, were credited on the respondent's records with 9 weeks' less seniority
than non-striking employees who had entered into the respondent's employ on
the same date. It is undisputed that the respondent's policy is to effectuate lay-
offs of employees in case of lack of work principally on the basis of seniority.'
The respondent contends, however, that the relative seniority of strikers and
non-strikers is of no significance with respect to lay-offs, for the following rea-
sons : 1. The striking employees, being members of those bargaining units
represented by the Union, were mainly hourly paid production and maintenance
employees; 10 2. The non-striking employees were mainly salaried employees;
3. The respondent, in effectuating lay-offs, does so on the basis of "departmental"
5 The vacation plan in effect in the respondent 's plants during the period herein material
provided that hourly paid employees were entitled to a 1-week paid vacation "one week
after completion of 1 year of continuous service." Two weeks after completion of 5 years
of continuous service, such employees became entitled to a 2-week paid vacation. Such
employees with more than 1 year, but less than 5 years, of continuous service received addi-
tional days of vacation (in excess of 1 week) as follows: Over 2 years, but less than 3
years-1 day, over 3 years, but less than 4 years-2 days ; over 4 years, but less than
5 years-3 days. Salaried employees with 1 year or more of continuous service are entitled
to 2 weeks' vacation with pay.
6 In distinction , an employee hired at the same time, but who did not participate in the
strike, would have been'een credited with the 9 weeks' continuous service, even though he had
not been at work during the period of the strike, and would, therefore, have received a week's
vacation during 1946.
1 The respondent's pension plan provides for the payment of pensions to employees who
"have served the Company continuously for at least 20 years and have reached the age of
retirement [70 years of age for compulsory retirement ; 60 years of age for voluntary re-
tirement], and provides disability relief for employees who have become permanently in-
capacitated for further work," and who have completed 20 years of continuous service
8 The witnesses used the word "seniority" in discussing lay-offs, instead of the phrase,
"continuous service credit " So far as appears, the two terms are synonymous
9 Thus, Vice-president Spicer testified that "seniority is a major factor" in determining
lay-offs. The contracts in effect between the Union and the respondent during 1945 and
1946 provide that "in all cases of lay-off or transfer due to lack of work . . . total length
of continuous service shall be the major factor governing such lay-offs or transfers."
10 The record shows that the Union did represent some salaried employees-namely, units
of clerical and office workers in 13 plants, and a unit of engineers at the Tell City,
Indiana, plant, the latter unit not having engaged in the strike.
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or "group" seniority; 4. Therefore, the striking and non-striking employees do
not compete with one another in the event of lay-offs, and their relative seniority
is thus of no practical importance. For the reasons set forth below, the under-
signed finds that the tolling of the seniority of the striking employees was an
action which was calculated to have, and which did, in fact, have certain sub-
stantial practical effects on the relative seniority standing of striking and non-
striking employees, thus affecting their relative standing with respect to possible
lay-offs."
It is the position of Board counsel that the deduction of continuous service
credit for the period of the strike from the records of the striking employees,
and the consequences flowing therefrom, operate as a penalty imposed upon
them by the respondent for exercising the statutory right to strike, and constitute
such discrimination against them as is proscribed by Section 8 (1) and (3) of
the Act.
The respondent denies that its deduction of continuous service credit from the
records of strikers for the period of the strike partakes of the nature of a penalty,
or constitutes discrimination against them. It contends that "under [its] long-
established policy and working rules, service credit is earned only in respect of
time actually worked, the only exceptions being in case of illness, lay-offs for lack
of work, and for military service. In all other cases, employees absent from
work, though they may retain their employment status, are not entitled to-.accrue
service credit. * • * It is clear that respondent's treatment of the 1946
strikers was wholly in accord with its historical policy of dealing with voluntary
absences from work whether attributable to strikes or otherwise Viewed
against, this background, what the Board appears to be seeking is not to prevent
respondent's discrimination against strikers, but rather to compel respondent to
discriminate in favor of strikers, by treating their absence as specially privileged,
in direct violation of the accepted and (,]early defined working rules "
Assuming, arguendo,'i as the respondent contends, that under its working rules
"service credit" is earned only for time actually worked, what its argument over-
looks is the fact that employees participating in a strike stand, by force of the
11 According to the published policy of the respondent as embodied in its General Instriie-
tion No 7.1, Supplement No 1, which was received in evidence, the respondent may grant
continuous service credit to an employee of one of its subsidiaries transferring mt i the
employ of respondent, for the e'mployee's years of service with the subsidiary Thus,
employees who engaged in the strike, and whose seniority was consequently diminished
by 9 weeks, are disadvantaged to that extent in the event of lay-offs, in competing with
former employees of one of the respondent's subsidiaries who, after the strike, may trans-
fer into their departments The same situation holds true as between employees who
engaged in the strike, and transferees from non-striking departments to departments which
engaged in the strike. In addition, as is undisputed, the respondent did not deduct con-
tinuous service credit from the records of those maintenance emplo(ees who, with union
permission, worked in the plants (luring the strike Such employees are of course put in a
favored position to the extent that they received continuous service credit during the strike,
over those of their fellows who did not work in the plants during said period. Finally, the
record reveals that the respondent does not adhere strictly to departmental seniority in
effectuating lay-offs Vice-President Spicer testified that although "lay-offs take place in
certain well-recognized groups, or what we call departments . there may be lay-offs in
a large plant in several different places , and, after the lay -offs are completed , if it trans-
pires that a man in one or another part of the plant is out, and there are still men working
whose jobs those men can take , those men are usually placed on those jobs "
12 It is to be noted that the respondent does not, as it contends, adhere rigidly to a rule
that continuous service credit is withheld from all employees voluntarily absent from
work, for the period of the absence. Although Vice-President Spicer testified that an em-
ployee "may take a leave of absence during which he gets no service credit," it is clear
from the respondent ' s printed rules that under some circumstances an employee may be
GENERAL ELECTRIC COMPANY 523
Act, on an entirely different footing than employees absent from work for other
causes. While there is no legal bar against an employer penalizing unexcused
absence from work, either by tolling the absent employee's seniority, or other-
wise, the employer, with certain qualifications not pertinent here, is proscribed
from in any way penalizing or discriminating against an employee for engaging
in a strike"
The undersigned is convinced from the record that the respondent's disparate
treatment of its striking and non-striking employees with respect to granting
or withholding continuous service credit for the period of the strike, amounted
to discrimination against the employees who had participated in the strike, and
constituted a penalty against them for such participation. As has been found
above, the respondent admittedly based its determination as to whether or not a
given employee was to receive service credit for the 9 weeks of the strike, on its
classification of the employee as a striker or a non-striker. The decisive factor
was not whether or not a given employee was absent from work, since, as is
admitted, the respondent deducted service credit from all members of the bar-
gaining units represented by the Union," considering them to be strikers, and did
not deduct credit from its other employees,16 even though they did not work
during the strike, because it did not consider the latter to be strikers. This
disparate treatment the respondent justifies on the ground that, as it contends,
the striking employees were voluntarily absent from work, while the non-strikers
were, "at the great majority of the plants . . ., prevented from entering by
the mass-picketing of the strikers."
The Board has had before it in a previous case" defenses identical to those
advanced by the respondent, in a situation essentially the same as found herein.
In that case, as here, the employer had, in dealing with employees absent from
work on account of an economic strike, separated "the employees who had not
reported for duty during the strike into two categories, one comprising those
employees who had voluntarily participated in and associated themselves with
the strike, and the other comprising those employees who had been absent for
other reasons."" Included in the second group were a number of employees
who had "indicated to the [employer] towards the end of the strike that their
given continuous service credit during a voluntary leave of absence from work. These
rules provide that "leave of absence without pay not exceeding 3 months during any 12
months' period, may be granted for any reason except employment elsewhere, in individual
cases at the discretion of the [Manager]," and that "the application shall bear the Man-
ager's recommendation as to whether all or part of the absence is to be deducted in com-
puting length of service."
11 Section 13 of the Act reads, "Nothing in this Act shall be construed so as to interfere
with or impede or diminish in any way the right to strike." Section 2 (3) by definiton
makes it clear that an employee does not relinquish his employee status by participating
in a strike And it has been consistently held that among the "concerted activities" pro-
tected by the Act against interference, restraint, or coercion by employers, is that of
engaging in a strike See : N. L R B. v. Mackay Radio & Telegraph Co., 304 U S 333,
344; N. L R. B. v. Schwartz, 146 F (2d) 773, 774 (C C. A. 5) , Carter Carburetor Corp.
v N L. R. B , 140 F (2d) 714, 717-718 (C C A. 8) ; Firth Carpet Co v. N L R B., 129 F.
(2d) 633, 636 (C C A. 2).
14 Except those maintenance employees who worked in the plants during the strike, and
the employees at the Tell City, Indiana, plant.
16 Unless they declared themselves to be absent from work because of sympathy with the
strike.
16 In support of this contention, the respondent introduced into evidence decisions of a
number of equity courts granting injunctions against various locals of the Union, pro-
hibiting them from obstructing access to the respondent's plants by certain kinds of
picketing.
17 Matter of Precision Castings Company, Inc., 48 N. L. R. B. 870.
21 Ibid , at p. 876.
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
absence was due to `intimidation,' thereby making it clear that they were not
participating in the strike."" The employer reinstated the employees in the
second group with full seniority. Those in the first group, i. e., those employees
who were considered to have voluntarily engaged in the strike, were required
to apply for reinstatement with "new seniority," 1. e., with only 6 months' ac-
crued seniority." In that case also, the employer justified his disparate treat-
ment of the two groups of employees on the ground that a company rule pro-
vided that "an employee shall lose his seniority . . . if he remains away
from his work for three days or longer without justifiable cause and without
notifying the Employer of his intended absence."' The Board held that the
disparate treatment of the employees classified as "voluntary strikers," as com-
pared with those absent from work "for other reasons," including "intimidation",
constituted illegal discrimination against the strikers. As to the company rule
pointed to by the employer, the Board held that "the seniority provision upon
which the respondent relies is no more than a company rule, and an employer
may not so apply or administer a seniority policy as to penalize or discriminate
against employees who have exercised their right under the Act to engage in
concerted activity." 22 The undersigned believes the Board's decision in the
Precision case is applicable herein 28
There remains to be considered the respondent's further argument that "the
Board's position necessarily implies that employees engaged in a purely economic
strike are entitled to receive compensation in respect of the time they voluntarily
absent themselves from work." The respondent bases this argument on the
following line of reasoning: "The sole significance of service credit in this case
lies in the employee benefits derived from it: the rights to vacations, pensions,
free insurance and the like. Paid vacations, pensions, and free insurance privi-
leges, measured in terms of time worked, are compensation, in fact and in
principle, just as surely as pay in dollars based on time worked. The Board has
consistently recognized this, by interpreting its remedial power under the Act
to award `back pay' in discrimination cases as embracing just such collateral
employment benefits."
It should be noted preliminarily that the significance of service credit in this
ease is not limited, as the respondent contends, to its effect on such employee
benefits as paid vacations and retirement on pension 24 The seniority standing
of employees, which is a major factor in determining the order of lay-offs in
the respondent's plants, is in direct ratio to their continuous service credit.
19 Ibid., at p. 880.
20 Ibid , at p. 879.
21 Ibid , at pp 876, 880.
22 Ibid., at p. 880
23 The respondent points out in its brief, that "the not granting of service credit to
employees while absent on strike did not take from any such employee any credit for service
which he had accumulated prior to going on strike, nor did it diminish or take away any
privileges based on service rendered which had accrued to any employee prior to the time
he went on strike " From this it might be argued that the present case is distinguishable
from the Precision case cited by the undersigned, since in the latter, the employer deducted
all but 6 months of the strikers' accrued seniority, while the respondent herein deducted
service credit only for the 9 weeks of the strike It is the opinion of the undersigned that
the two cases are identical in principle, since the employers involved therein imposed
penalties upon their striking employees differing only in the degree to which the seniority of
the respective striking employees was tolled.
24 As Spicer credibly testified, and the undersigned finds, the deduction of the 9 weeks'
credit from the records of the strikers had no effect on their group insurance benefits. The
undersigned therefore has not discussed the matter of insurance, though in its brief, the
respondent refers to service credit as affecting the employees' rights to "free insurance."
GENERAL ELECTRIC COMPANY 525
Since by diminishing the striking employees' service credit by 9 weeks, the
respondent thereby reduced their relative seniority standing to the same degree,
it is apparent that service credit is important not only with respect to matters
involving various forms of employee compensation, but also in connection with
the tenure of employment of the employees. But even if we confine our con-
sideration of the respondent' s argument to the issue of paid vacations and
retirement on pension, which might be denominated forms of compensation,
there is a basic fallacy in the reasoning relied upon by the respondent. In effect
the respondent contends that since the Board does not require an employer to
pay wages to economic strikers , following their reinstatement , for the period
they were out on strike, it may not require him to refrain from impairing such
perquisites of the strikers as normally accrue to employees so long as they
retain their status as employees. This, the respondent argues, follows from
the fact that the perquisites referred to are in reality forms of compensation.
The argument suffers from the defect frequently found in such analogical rea-
soning; the conclusion sought to be established by the respondent does not
necessarily follow from the premises. This is obvious when we stop to consider
that economic strikers are in no different position from unfair labor practice
strikers with respect to rights of reinstatement after a strike, except that eco-
nomic strikers may be replaced by the employer during the course of the strike."
So, the Board customarily orders employers to replace strikers, whether they be
economic or unfair labor practice strikers , "without prejudice to their seniority
or other rights or privileges." As the respondent recognizes, the Board does not
require employers to pay wages to unfair labor practice strikers for the period
of the strike. Yet it does, with judicial sanction, require employers to reinstate
unfair labor practice strikers with seniority, vacation, and other rights un-
diminished by the period of the strike." As is thus seen, the fact that an
employer is under no obligation to pay wages to strikers for the period spent
on strike does not give rise to the conclusion that he may deprive them of such
employee-perquisites as vacations and pensions to the extent that they were
absent from work.
In the Republic Steel case, supra, the Court was called upon to construe the
phrase, "without prejudice to their seniority or other rights or privileges," which
as we have seen, the Board customarily includes in its reinstatement orders
with respect to both economic and unfair labor practice strikers. The specific
issue in that case arose from the employer's refusal to grant vacation pay to
strikers reinstated pursuant to a court-enforced Board order, based on the
period during which the strikers had been absent from work. The Court held:
We think it was the intention of the Board, as it was of this Court, to
provide that upon reinstatement the striking employees were to be treated
in all matters involving seniority and continuity of employment as though
they had not been absent from work. It follows that the reinstated strikers
are entitled to the benefits of Republic's vacation plan for the year in which
they are reinstated and all subsequent years upon a basis of continuity
of service computed as though they had been actually at work during the
entire period from May 25, 1937 to the date of reinstatement .21
The respondent seeks to escape the force of this decision by arguing that it
Is inapplicable to the case at bar for the reason that the employees involved
16N L. R B. v. Mackay Radio & Telegraph Co, 304 U. S. 333
26 See: Republice Steel Corporation 1. N. L. It. B., 114 F. (2d) 820 (C. C. A. 3).
27 The strike in question began on May 25, 1937.
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the Republic Steel case had engaged in a strike brought about by the unfair
labor practices of their employer , while the present proceeding deals with a
strike which was purely economic in character . It is true that in the Board
decision in the Republic Steel case28 emphasis is laid on the unfair labor prac-
tices of the employer which the Board was seeking to remedy . But as we have
seen, the phrase constructed by the Court in its decision is customarily made-
part of Board reinstatement orders with respect to economic , as well as unfair
labor practice strikers . Moreover , there is no indication in the Court 's decision
that its construction of the disputed language in any way hinged on the char-
acter of the strike involved . It is the opinion of the undersigned that the
Republic Steel decision is authority for the principle that reinstated strikers
must, under the Act, "be treated in all matters involving seniority and continuity
of employment as though they had not been absent from work ," and that it
follows that the respondent 's striking employees "are entitled to the benefits
of [the respondent 's] vacation [ and pension ] plan for the year in which they
[ were] reinstated and all subsequent years upon a basis of continuity of service
computed as though they had been actually at work during the entire period
from [January 15, 1946 ] to the date of [their return to work after the strike]."
Upon the basis of all the foregoing , and of the entire record, the undersigned
concludes and finds that by refusing to credit its striking employees with con-
tinuous service for the period from January 15, 1946, to March 18, 1946, the
period during which they were engaged in the strike , thereby depriving the said
employees of their continuous seniority , full amount of paid vacations , and full
rights to eligibility in the respondent 's pension plan, the respondent discrimi-
nated in regard to the tenure and terms or conditions of employment of the
said employees , thereby discouraging membership in the Union , and interfering
with, restraining, and coercing its employees in the exercise of the rights guar-
anteed in Section 7 of the Act. It is further found that by the said conduct the
respondent violated Section 8 ( 1) and ( 3) of the Act.
C. The alleged refusal to bargain
It is undisputed , and the undersigned finds, that at all times since January
15, 1946, the Union has been the duly designated representative for purposes
of collective bargaining of those of the respondent 's employees composing certain.
units appropriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act, said units being those described in Paragraph a
of the Amended Complaint herein.
It is the employees who compose the aforesaid collective bargaining units
from whom the respondent withheld continuous service credit after the strike.
The Board contends that the respondent , on or about March 18, 1946 ( the date
on which the strike ended ), without first consulting or bargaining with the Union,
put into effect its policy of refusing to credit its striking employees with continu-
ous service ; that on April 10, 1946, and on various occasions thereafter, the Union
requested the respondent to bargain collectively with it regarding the said issue;
but that the respondent has consistently refused to do so; all in violation of
Section 8 ( 5) of the Act.
The agreement settling the strike was drawn March 13, 1946, at a meeting
attended by representatives of the Union and the respondent . Although the settle-
ment agreement provides in general terms that "there shall be no discrimination
against any employee by either the Company or the Union ," it is undisputed that
289 N. L . R. B. 219.
GENERAL ELECTRIC COMPANY 527
the discussions concerning the subject of discrimination contained no reference
to the matter of granting or withholding continuous service credit for the period
of the strike. So far as appears in the record, the issue first arose immediately
following the resumption of work after the strike, when the respondent was faced
with the necessity of computing vacations and pensions for some of the employees
who applied for such rights Thereupon the question was raised by Vice-President
Spicer, who was in charge of employee relations, at a meeting of the respondent's
operating vice-presidents held about March 20 or 21. After an exchange of views,
it was tentatively decided to withhold continuous service credit from those em-
ployees who had engaged in the strike, and this decision was followed in practice
by the respondent in acting on the applications for pensions, and the like, which in
the meantime had been filed by employees 2' However, the question was left open
for further consideration and final decision, and two of the respondent's vice-
presidents were designated as a committee to make "further recommendations
at the next meeting." 30 This committee brought back to the operating vice-presi-
dents its recommendations at the next meeting, which was held on or about April
16. In the meantime, as has been set forth above in the section of this report en-
titled, "The Factual Background," the first meeting between the Union and the
respondent to discuss a new collective bargaining contract was held on April 10.
At the opening of that meeting, Spicer notified the union representatives of the
respondent's intention to deduct the 9 weeks of the strike from the service records
of the employees who had participated therein There is some conflict in the
testimony as to the exact phraseology used by Spicer in making the aforesaid
announcement. Spicer himself testified that lie had informed the Union repre-
sentatives "that credit would not be given in all probability for the time out on
strike." International Representatives Dermody and Turkowski of the Union,
who were present at the negotiating meeting, testified that Spicer had announced
that "the company has deducted the nine weeks" that were lost (luring the strike,
from the service records of the striking employees. Minutes of the meeting kept
by the respondent, which were received in evidence, contain the following nota-
tion : "S-9 weeks will be deducted from cont. service-except that employees will
not have to make up the 9 wks. before taking a vacation this year-for all other
reasons time will be deducted . . ." On the basis of the whole record, the under-
signed finds that at the April 10th meeting, Spicer informed the union repre-
sentatives that the respondent would deduct a period equal to the length of the
strike from the continuous service records of those employees who had taken
part in it.
The representatives of the Union protested that such action on the part of
the respondent constituted a penalty against the returned strikers, and was
in violation of that clause of the strike settlement agreement whereby the
respondent bound itself not to discriminate against any employee. To these
29 The above findings are based on the credited testimony of Spicer The latter testified
that prior to the April 10 meeting with the Union, the respondent had not reached any
definite conclusion as to what its position would be. However, at another point in his
te'timony he testified that the respondent had "reached a tentative position, but not
definite. because it had to be considered at another meeting." While the undersigned
credits Spicer's testimony that the question of deducting service credit from strikers was
left open for final action, pending further consideration of the issue by a committee of two
of the vice-presidents of the respondent, it is obvious that at the first meeting referred to,
a tentative position was taken , since as Spicer admitted , the respondent in the interim
between the first meeting and April 10 acted on pending cases on the basis of "deducting"
the service credit from employees who had engaged in the strike.
31 From the credited testimony of Spicer.
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
objections, Spicer answered that the respondent was "not going to count service
while employees are not working," and that in anticipation of possible future
strikes, the respondent wished "to establish a principle that time out on strike
will be deducted [from continuous service credit]." Dermody and Turkowski
testified that Spicer answered their protests by stating that "the decision was
final, and no change could be made in it, and there was nothing else to be said
about it." Spicer denied having made any statement on the aforesaid occasion,
to the effect that the respondent's decision was final and irrevocable. The
undersigned credits Spicer's denial, which is corroborated by the respondent's
minutes of the April 10 meeting, which the Board introduced into evidence.
After some further discussion of this issue, the parties proceeded to negotiate
with respect to a new contract, and so far as appears, the matter of continuous
service credit for the strikers was not discussed further at the April 10 meeting.
Following April 10, negotiations between the Union and the respondent con-
tinued until about July 24, by which date an agreement had been reached and
signed. The issue of the 9 weeks' continuous service credit was admittedly
raised by the Union at a number of the meetings between the parties which
took place in the interim 81 On each such occasion, the Union representatives
in substance urged the respondent to alter its announced policy with respect
to the matter, arguing that the tolling of the strikers' continuous service credit
constituted a penalty for striking, and discrimination against them, only to be
informed that the respondent's position remained the same. Dermody, in his
testimony, characterized the above-mentioned discussions as requests by the
Union that the respondent "negotiate this question," which "the company re-
fused" to do. Spicer testified that at no time had any union representative
charged him with refusing to "discuss or negotiate this question." The under-
signed credits Spicer's testimony to this effect. For this reason, and since the
record unmistakably shows that the respondent did, on a number of occasions,
discuss the question with the Union, and moreover, since, as hereafter appears,
the respondent proved willing subsequently to re-open the matter, at the Union's
request, to consider whether or not it should alter its position, the undersigned
is of the opinion that Dermody's conclusion that the respondent "refused to
negotiate" with the Union on the issue, is not supported by the record.
During the negotiating meeting of July 23, 1946,92 the Union requested the
respondent to submit the issue of the 9 weeks' service credit to arbitration. This
the respondent refused to do, on the ground that in its opinion, no "arbitrator
has any right to decide on an issue of this kind." On this occasion, also, after
the respondent had indicated that it stood on its decision to refuse to grant
continuous service credit to the strikers for the period of the strike, the Union
requested the respondent's representative, Spicer, to reopen the question with
11 The record is not clear as to the exact number of meetings at which the issue was raised.
Dermody testified that the matter was brought up at seven of the meetings Spicer testi-
fied, and the respondent 's minutes show, that it was discussed at only three meetings.
However, Spicer admitted that the question may have been raised by the Union before or
after some of the meetings and that the respondent 's minutes of such meetings might not
reflect this fact . The undersigned does not find it necessary to resolve the conflict of testi-
mony on this point.
a' Dermody testified that he had made , and the respondent had refused , a request that the
issue he arbitrated , on May 3 "and several times thereafter ." The respondent ' s minutes of
the negotiating meetings , introduced into evidence by the Board , reveal that a request to
arbitrate was made and rejected on July 23 , but said minutes do not reflect any such
request being made at the meeting of May 3. The undersigned concludes that Dermody
was mistaken as to the date when he made the request to arbitrate . Whether or not such
a request was made on more than one occasion is not crucial to the issues herein.
GENERAL ELECTRIC COMPANY 529
the management, to explore the possibility of the respondent changing its deci-
sion. Spicer promised to do so, and on August 16 he informed International
Representative Dermody that the respondent had "been over the matter again"
and that its position was unchanged.
The Board apparently takes the position that the respondent's adamant
attitude throughout the course of its discussions with the Union, respecting
the issue of service credit, evidences an unwillingness on the respondent's part
to bargain in good faith on the matter. But the Act imposes no obligation
on an employer to reach an agreement with its employees in collective bar-
gaining; it requires merely that the employer "enter into discussion with an
open and fair mind, and a sincere purpose to find a basis of agreement ..." "
So, to establish its case against the respondent, it is necessary for the Board
to show that the respondent entered the discussions with its mind closed against
any arguments that the Union might advance. In essence, the Union's position
throughout was that the deduction of service credit from the records of the
strikers constituted illegal discrimination against them. With this position
the respondent sincerely, albeit mistakenly, disagreed, and it insisted that it
not only had a right to make the deduction of service credit, but, for policy
reasons, it should do so. The respective positions of the parties gave rise to an
issue which hardly lends itself to compromise or adjustment. For this reason,
the undersigned is not persuaded that because the respondent did not yield to
the Union, it was bargaining in bad faith. The contrary is indicated by the
following facts : The respondent, on its own initiative, raised the issue for
discussion with the Union promptly after the question arose following the strike ;
the respondent thereafter never refused to discuss the matter whenever the
Union re-raised it; and, finally, the respondent readily acceded to the Union's
request, at the end of their negotiations, to open the question for reconsideration
by the respondent's higher officers."
It is true, as the Board points out, that the respondent came to the first
negotiating meeting with the Union after it had already adopted a position on
the question of deducting service credit. The undersigned is convinced, how-
ever, that it was entirely consistent with the respondent's duty to bargain in
good faith, for it to decide in advance of the negotiations, upon the position
which it would advance. This is true where as here, the decision adopted by
the respondent was merely tentative, and the subsequent events revealed no
purpose on the part of the respondent to proceed with the policy it advocated
regardless of anything the Union might say."
83 Globe Cotton Mills v N. L. R B., 103 F. (2d) 91, 94 (C. C A 5).
a' The undersigned does not consider the respondent's refusal to submit the issue to
arbitration, when requested to do so by the Union, to indicate bad faith The respondent's
position that it did not deem the issue appropriate for arbitration seems to be a tenable one
In assessing the respondent's good faith, it is of some materiality to note that, as the
respondent contends, and the Board's records confirm, the present proceeding marks the
first occasion upon which the Board has issued a complaint alleging the commission of
unfair labor practices by the respondent.
JG
The record reveals that during the interim between the end of the strike and the April
10 meeting, a small number of applications from employees for retirement and vacations
were filed with the respondent. These interim applications were acted upon by the
respondent tentatively on the basis of computing the rights of striking employees with the
9 weeks of the strike deducted, subject to being "corrected afterwards if any other
situation arose." In the circumstances of this case, the undersigned is persuaded, and
therefore finds, that the tentative action taken by the respondent before the April 10 meet-
ing, with resp:'ct to the few pending applications before it, did not constitute unilateral
action in derogation of the Unions status as collective bargaining representative of the
respondent's emplo3 ees
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In all the circumstances, the undersigned concludes and finds that the Board
has not sustained the burden of establishing that the respondent has refused to
bargain collectively with the Union.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, B, above, occurring in
connection with the operations of the respondent described in Section I, above,
have a close, intimate, and substantial relationship to trade, traffic, and com-
merce among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow thereof.
V. THE REMEDY
Having found that the respondent has discriminated in regard to the tenure
of employment and the terms or conditions of employment of those of its
employees who participated in the 1946 strike, the undersigned will recommend
that it cease and desist therefrom, and take certain affirmative action, including
the making whole of the said employees for any loss or diminution in their
seniority or other rights or privileges which they may have suffered as a result
of the respondent's discrimination against them, which the undersigned finds
necessary to effectuate the policies of the Act.
Upon the basis of the above findings of fact, and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS OF LAw
1. United Electrical, Radio and Machine Workers of America, C.I 0, and its
affiliated General Electric Locals, are labor organizations within the meaning
of Section 2 (5) of the Act.
2. The units of the respondent's employees described in Paragraph 6 and
Appendices A-H of the Amended Complaint herein, at all times material herein
constituted and now constitute units appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
3. United Electrical, Radio and Machine `Yorkers of America, C.I 0., was at
all times material herein, and now is, the exclusive representative of all em-
ployees in the aforesaid appropriate units for the purposes of collective bar-
gaining within the meaning of Section 9 (a) of the Act.
4. By discriminating in regard to the tenure of employment and the terms or
conditions of employment of those of its employees who participated in the
strike of January 15, 1946, to March 18, 1946, thereby discouraging membership
in the Union, the respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (3) of the Act.
5. By the said acts, the respondent has interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section 7 of the
Act, and has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
7. The respondent has not engaged in unfair labor practices within the mean-
ing of Section 8 (5) of the Act.
GENERAL ELECTRIC COMPANY 531
RECOMMENDATIONS
Upon the basis of the above findings of the fact and conclusions of law, the
undersigned recommends that the respondent, General Electric Company, its
officers, agents, successors, and assigns shall :
1. Cease and desist from discouraging membership in United Electrical, Ra-
dio & Machine Workers of America, C. I. 0., its affiliated General Electric locals,
or any other labor organization of its employees, by in any manner disct'iminat-
ing against any of its employees in regard to their tenure of employment, or any
term or condition of their employment.
2. Take the following affirmative action, which the undersigned finds will
,effectuate the policies of the Act :
(a) Restore on the records of all of the respondent's employees who partici-
pated in the strike of January 15, 1946, to March 18, 1946, from whose records
continuous service credit for the period of the said strike has been deducted,
credit for continuous service for the full period of the said strike ;
(b) Make whole such employees for any loss or diminution in their seniority
or other rights or privileges which they may have suffered as a result of the re-
spondent's discrimination against them ;
(c) Post immediately at all of its plants listed in Appendices A-H of the
Amended Complaint herein, copies of the notice attached to the Intermediate
Report herein, marked "Appendix A." Copies of said notice, to be furnished
by the Regional Director for the Second Region, after being duly signed by the
respondent, shall be posted by the respondent immediately upon receipt thereof,
and maintained by it for sixty (60) consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the respondent to insure that said notices
are not altered, defaced or covered by any other material ;
(d) Notify the Regional Director of the Second Region in writing within
ten (10) days from the receipt of the Intermediate Report what steps the re-
spondent has taken to comply therewith.
It is further recommended that unless the respondent notifies said Regional
Director in writing within ten (10) days from the receipt of this Intermediate
Report that it will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the respondent to take the
action aforesaid.
It is further recommended that the allegations of the complaint that the re-
spondent has failed or refused to bargain collectively with the Union or has com-
mitted unilateral acts without bargaining collectively with the Union, be dis-
missed.
As provided in Section 203.39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or
counsel for the Board may, within fifteen (15) days from the date of service of
the order transferring the case to the Board, pursuant to Section 203.38 of said
Rules and Regulations, file with the Board, Rochambeau Building, Washington
25, D. C., an original and four copies of a statement in writing setting forth such
exceptions to the Intermediate Report or to any other part of the record or pro-
ceeding (including rulings upon all motions or objections) as be relies upon,
together with the original and four copies of a brief in support thereof; and any
party or counsel for the Board may, within the same period, file an original
and four copies of a brief in support of the Intermediate Report. Immediately
upon the filing of such statement of exceptions , and/or briefs , the party or counsel
817319-49-vol. 80-35
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the Board filing the same shall serve a copy thereof upon each of the other
parties and shall file a copy with the Regional Director. Proof of service on
the other parties of all papers filed with the Board shall be promptly made-as
required by Section 203.65. As further provided in said Section 203.39, should
any party desire permission to argue orally before the Board, request therefor
must be made in writing to the Board within ten (10) days from the date of
service of the order transferring the case to the Board.
ISADORE GREENBERG,
Trial Examiner.
Dated May 23, 1947.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in UNITED ELECTRICAL, RADIO &
MACHINE WORKERS OF AMERICA, C. 1. 0., its affiliated General Electric locals,
or any other labor organization of our employees, by in any manner discrimi-
nating against any of our employees in regard to their tenure of employment,
or any term or condition of their employment.
WE WILL RESTORE On the records of all of our employees who participated
in the strike of January 15, 1946 to March 18, 1946, from whose records con-
tinuous service credit for the period of the said strike has been deducted,
credit for continuous service for the full period of the said strike.
WE WILL make whole such employees for any loss or diminution in their
seniority or other rights or privileges which they may have suffered as a result
of the discrimination against them.
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to
tenure of employment or any term or condition of employment against any em-
ployee because of membership in or activity on behalf of any such labor
organization.
GENERAL ELECTRIC COMPANY,
Employer.
By ---------------------------------
(Representative ) (Title)
Dated ---------------------------
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.