General Engineering, Inc.

National Labor Relations Board - Board Decisions

Jun 29, 1964

147 N.L.R.B. 936 (N.L.R.B. 1964)

936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
card. The rule did not bas referrals even assuming for the moment that travel card
rules are of sufficient importance to be included with "reliability, etc." above. Thus,
Bryer's action was not taken under a rule and hence was arbitrary and not pro-
tected. Obviously such rules would require publication and would be strictly con-
strued to assure their necessary uniform application. It cannot be argued that
Bryer's refusal to refer Ubbes is the same thing or equal to a fine of up to $100.
The solution to this extremely interesting case requires much more than sympathy.
Ubbes obtained a travel card from Respondent not, in accordance with the rule.
Bryer ignored this rule. Then in an area where there is no rule prohibiting his
handing Ubbes a referral slip, he refuses to grant the referral attempting to equate
this refusal with a fine which may or may not even be levied. Bryer's actions thus
are arbitrary, are not in accord with the collective-bargaining agreement, are in-
consistent with his duty to represent all employees fairly, and hence are discriminatory
within the meaning of Section 8 (b) (2) and (1) (A) of the Act 9
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Employer described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes obstructing commerce and the free
flow of commerce.
V. THE 11.EMEDY
I will recommend the usual remedy in requiring Respondent to make whole Ubbes
and to cease and desist from engaging in conduct found above under section III.
As the violation found is against basic rights of employees, and seemingly would
be practiced against employees of any employer, I will cause Respondent to cease
and desist doing these acts with respect to employees of any employer.
Upon the basis of the above findings of fact and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. Townsend and Bottum, Inc., is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2:`The Respondent is a labor organization within the meaning of Section 2(5)
of the Act.
3. By attempting to cause and causing Townsend and Bottum, Inc., not to hire
Frank Ubbes by refusing to issue him a referral slip as it was obligated to do in ac-
cordance with the collective-bargaining agreement, Respondent engaged in unfair
labor practices within the meaning of Section 8(b) (2) of the Act.
4. By the above conduct, the Respondent has engaged in unfair labor practices
within the meaning of Section 8 (b) (1) (A) of the Act.
[Recommended Order omitted from publication.]
g "Our sche4ne of ordered liberty is based, like the common law, on enlightened and uni-
formly applied legal principle, not on ad hoc notions of what is right or wrong in a particu-
lar case." Air Justice Harlan, Suprerne Court of the U S., in "Thoughts at a Dedication,"
Amer. Bar Assn. Jour, vol. 49, No. 10, p. 944
General Engineering , Inc., and Harvey Aluminum (Incorpo-
rated) and United Steelworkers of America, AFL-CIO. Cases
Nos. 36-CA-953 and 36-CA-954. June 29, 1964
SUPPLEMENTAL DECISION AND ORDER
On May 19, 1961, the Board issued its Decision and Order in the
above-entitled proceeding I finding, inter alia,, that the Respondents
1 131 NLRB 648.
147 NLRB No. 127.
GENERAL ENGINEERING, INC., ETC. 937
had unlawfully discriminated against employee Lloyd K. Fowler and
ordering that he be reinstated to his former, or a substantially equiv-
alent, position and made whole for any loss of earnings attributable
to his unlawful discharge. The United States Court of Appeals for
the Ninth Circuit granted enforcement of the Board's Order' and
thereafter entered its decree on May 14, 1963, remanding the cases to
the Board to determine (1) whether Fowler has been restored to his
former or substantially equivalent position and (2) the amount of
backpay, if any, due him. Accordingly, the Board directed that a
hearing be held before a, Trial Examiner to make the foregoing
determinations.
On March 20, 1964, Trial Examiner Wallace E. Royster issued a
Supplemental Decision (1) finding that Fowler had never been rein-
stated to his former position and (2) recommending that the Re-
spondents be required to pay Fowler $4,509 plus 6 percent interest
commencing 5 days after service of the Supplemental Decision. The
General Counsel and the Respondents filed exceptions to the Sup-
plemental Decision and supporting briefs; the General Counsel filed
an answering brief in opposition -to the exceptions and brief of the
Respondents; the Respondents filed motions to strike certain portions
of General Counsel's exceptions and briefs, and the General Counsel
filed an answer to motions to strike.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at.the supplemental hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has con-
sidered the entire record in these cases, including the Supplemental
Decision, the exceptions 'and briefs, the Respondents' motions 3 and
General Counsel's answer thereto, and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner with the fol-
lowing modifications.
The Trial Examiner computed the net backpay due Fowler only for
the period through June 30, 1963. Since, as the Trial Examiner also
found, Fowler has only been given work of a temporary nature and
has not been reinstated to his former position in the maintenance de-
partment, the Respondents in accordance with the terms of the Board's
2 311 F. 2d 570 (C.A. 9).
3 Respondents made a series of motions to strike certain matter from General Counsel's
exceptions and brief as "scandalous ," "unsupported ," or outside the record . We deny the
foregoing motions. We have based our findings and conclusions herein only on competent
record evidence.
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Order as enforced by the court remain under an obligation to make
Fowler whole for the period from July 1, 1963, to the date of a proper
offer of reinstatement.
As noted above, the Trial Examiner recommended the payment of
interest on the backpay due Fowler. We do not adopt this recom-
mendation as the payment of interest was not required by the Board's
original Order which was enforced by the court.4
ORDER
On the basis of the foregoing Supplemental Decision and the entire
record in - these cases , the National Labor Relations Board hereby
orders that the Respondents , General Engineering , Inc., and Harvey
Aluminum ( Incorporated ), their officers , agents, successors , and as-
signs, shall pay Lloyd K. Fowler the sum of $4,509 and also make him
whole for the period from July 1, 1963, to the date of a proper offer of
reinstatement to Fowler 's former or a substantially equivalent position.
4 See Ellis and Watts Products, Inc., 143 NLRB 1269.
TRIAL EXAMINER 'S SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
On May 19, 1961 , the Board issued a Decision and Order 1 in this proceeding in
which it, inter alia, ordered the reinstatement of Lloyd K . ,Fowler to his former
or substantially equivalent position and that Fowler be made whole for any loss of
earnings attributable to his unlawful discharge . Thereafter , the United States Court
of Appeals for the Ninth Circuit granted enforcement of the Board 's Order but
remanded the case to the Board to determine (1) whether Lloyd K . Fowler has been
restored to his former or substantially equivalent position , and (2 ) the amount of
backpay, if any, due to him.
In consequence , the Board , on July 17, 1963 , reopened the record in this proceed-
ing and directed that a hearing be held before a Trial Examiner to determine (a)
whether Lloyd K. Fowler has been restored to his former or substantially equivalent
position , and (b ) the amount of backpay, if any, due to Lloyd K. Fowler.
Pursuant to due notice , the matter came on before Trial Examiner Wallace E.
Royster for hearing in The Dalles, Oregon, on October 8 , 9, and 10, 1963. Briefs
from the parties have been received and considered . Upon the entire record 2 in
the case and from my observation of the witnesses , I make the following:
FINDINGS OF FACT
1. AS TO REINSTATEMENT
On August 10, 1959, the Respondents authorized the employment of a number
of workmen in connection with the building of a water pumping system. The
labor requisitions specified that the employment would be for a maximum of 90
days. On August 14, Andrew Cronkrite , the then general manager at the plant,
wrote to Fowler as follows:
This is to inform you that we now have an opening for employment which
is within the line of work which we feel you are qualified to do.
According to our records you are eligible for re-hire when work within your
line is available.
1131 NLRB 648.
2 The posthearing motion of counsel for the General Counsel to correct the transcript in
a number of particulars does not relate to matters of any substance . Because the motion
is opposed in some respects and because in the light of the entire record the corrections
are unnecessary , the motion is denied.
GENERAL ENGINEERING, INC., ETC. 939
Kindly report to the Personnel Office Monday morning, August 17 , 1959, for
rehire.
This opportunity for employment came to Fowler more than a month after a
charge had been filed with the Board alleging that his discharge on June 19, 1959,
was discriminatory , and a few days after the original complaint in this proceeding
making that allegation , among others , had been filed.
Fowler's new employment on the water -pumping project was outside the physical
confines of the plant and was not in the department from which he had been dis-
charged. As noted , the employment was expected to be temporary at least in the
sense that the particular project upon which he was working would proceed to
completion . It was not a part of the continuing day-to-day plant operation.
In late September , Fowler developed a foot infection which disabled him for a
time and , in consequence , he did not report for work after September 25. On
October 9, Cronkrite wrote again to Fowler saying:
Regretting the fact of your illness , it has become necessary due to completion
of the work assignment you were involved in, a reduction in force in personnel
has 'become necessary . Should an opening occur in the near future com-
mensurate with your qualifications you are eligible for rehire and will be con-
sidered for re-employment at that time.
Enclosed you will [find] Security Statement and-Termination Interview forms.
Please complete where indicated with a red "X" and return to Personnel along
with your badge.
Kindly advise us of any address change that may have occurred recently with
which we will be able to forward your check , otherwise your check will be
mailed to the address listed above , or whether you will report to the Personnel
office in person with. the above papers to pick up your checks.
Fowler testified that he received this letter on October 10, a Saturday , with three
enclosures . He identified in his testimony these three documents as a Termination
Interview form which he signed on a line marked for signature and bearing the fur-
ther indication of a red X ; that he filled out another sheet bearing the same caption
but not requiring a signature ; and finally a Security Termination Statement on which
he supplied a date, badge number , and signature . All of these documents have been
in Respondents ' custody since October 12 or 13, 1959, and were received in evidence.
Fowler testified that he delivered them to Robert Richmond , Respondents ' person-
nel manager , on October 13 but that at sometime since that date the Termination
Interview form which he signed had been altered by changing the date and by adding
another reason for termination:
Without more, the question of reinstatement would seem to be answered . Fowler
had been discharged unlawfully from employment in the maintenance department
where he could expect to have continued indefinitely and had been -given temporary
work on construction , which from its nature, would end ' when the construction
reached some stage of completion . Reemployment to meet a temporary need of
the Respondents would not , of course , constitute reinstatement to the job of, a
permanent nature from which he had been discharged . But there is more. The
Respondents claim, in essence, that except for a circumstance about to be related,
Fowler would have continued in Respondents ' employ and that his employment was
as permanent as that he had before discharge.
Myron Guilfoyle, in October 1959, was in charge of the construction project upon
which Fowler was employed and is now employed by Harvey Aluminum, of Cali-
fornia. Guilfoyle testified that on October 10, 1959, aware that- Fowler had not
been at work for about 10 days and because , as he explained, "we were coming into
the final stages on one part of this operation and we were going to reorganize and go
into the-actually connecting these-this waterline to the D.C. casting pit and so
forth ; and it was a matter of reorganizing our crew and assigning them to differ-
ent projects ; and we had to know how many men that we were going to use on
this one, how many we were going to prdbably put in the maintenance or someplace
else. At least get them off this particular work order and on to something else," he
asked Personnel Manager Richmond to find out when Fowler would return to work.
In Guilfoyle 's presence , he testified , Richmond made a telephone call and at its
completion , said, "Mr. Fowler is not available; he's hunting ." Guilfoyle testified
that this caused him to bring about Fowler's termination.
Richmond testified that on October 10, after Guilfoyle had inquired about Fowler's
return to work, he telephoned the Fowler residence , spoke to Mrs. Fowler, and
learned from her that Fowler was out hunting . According to Richmond , Fowler
came to the personnel office on October 12 and there filled out and signed various
termination forms. On this occasion , Richmond somewhat uncertainly recalled,
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there was some mention by him of a hunting trip and by Fowler of a foot infection,
the existence of which could be substantiated by Fowler's doctor. Richmond identi-
fied as his a note dated October 10, reading , "Called Mr. Fowler to notify him of
transfer to old job in the Machine Shop . Mrs. Fowler answered when inquiry was
made for Mr. Fowler. Was informed he had gone hunting with some friends.
Asked when he would return . She did not know. She stated you know how those
things go . Notified Mr. Guilfoyle that Fowler was on a hunting trip instead of home
sick like he had stated ." Other than this note , there is no mention in the testimony
of Richmond or of Guilfoyle that any telephone call was made to Fowler at any
time to inform Fowler of a transfer . The machine shop is in the maintenance de-
partment and not under the authority of Guilfoyle.
Mrs. Fowler denied that she received any such telephone call. Fowler denied
that he had at any time during this period gone hunting. Cronkrite , the author
of the termination letter of October 9 , although still in the employ of the Respond-
ents or of some one of their affiliates , was not called as a witness.
According to Fowler, the Termination Interview form, which accompanied the
letter from Cronkrite , bore the typed date of October 9 and recited , "Reason for
Leaving: Involuntary-Reduction in Force." Fowler signed this on the line marked
with a red X and on October 12 ,' a Monday, signed and dated the other enclosures.
Because he first sought advice from an attorney before turning in these documents, he
delayed going to the personnel office until October 13 . On that date , according
to Fowler , he delivered the signed documents there. The Termination Interview form
produced by the Respondents at the hearing and offered in evidence by counsel for the
General Counsel bears Fowler's, signature and a red X as mentioned in Cronkrite's
letter of termination . However , added to "Reason for Leaving " which Fowler
testified was limited to "Involuntary-Reduction in Force" is the following , "-Trans-
ferred to Machine Shop 10/9/59 but falsified reason for absence on 10/8/59 &
10/9/59 ." The document produced bears the date of October 12, 1959.
The Respondents assert, in essence, that Fowler was brought back to work on
August 17 with all rights and privileges as if his discriminatory discharge had not
taken place ; that he was assigned to construction work because that is where he was
needed; and that had he not pretended illness in order to absent himself for
hunting, he would have returned to his June employment in the machine shop on
October 12 when he was no longer needed in construction.
I am convinced and find that the transfer arrangement never existed, that evidence
to indicate that it did has been contrived , and that Fowler has never been rein-
stated to the employment from which he was discharged on June 19, 1959.
Other than the testimony of Richmond that he authored the note dated October 10
indicating a transfer and the mention of transfer on the Termination Interview form
as it came from Respondents ' files, there is no evidence that a transfer was ever,
in fact, arranged . Presumably neither Guilfoyle nor Richmond could effectuate the
transfer of any employee outside their respective areas of supervision and neither of
them had authority of that nature in respect to the machine shop . As general
manager , Cronkrite no doubt could have made such an arrangement but there is no
evidence from him that he did .3 Indeed , in respect to Fowler, Cronkrite appears to
have done nothing more than to terminate him because he was no longer needed in
construction . Had a transfer actually been ordered or arranged , I am convinced
that the Respondents would have brought to the stand the person responsible for that
action to testify about it. Their failure to do so leads me to conclude that it did not
happen. But the Respondents have gone to some trouble to make it appear that
they did transfer Fowler and have not stopped short of altering their records to
substantiate their claim . Fowler testified that the Termination Interview form that he
signed was dated October 9 , the same date as the letter from Cronkrite with which it
was enclosed . When the same form appeared in evidence , it bore the date of Octo-
ber 12 but, curiously , there has been an erasure where Fowler said he saw the 9 and
it is clear upon examination that the 2 has been imposed upon an erased comma.
This supports Fowler 's testimony as to the date. I find that when Fowler signed it,
the Termination Interview form bore the October 9 date. I do not credit the testi-
mony of Guilfoyle and Richmond about the October 10 telephone call. I find that
such testimony was given in order to permit the argument to be made that the termi-
nation announced in Cronkrite 's letter was not really a termination at all but just
some sort of notice that Fowler was all through in construction but not as an
employee. It was not enough , of course , to change the date.' The content of the
Termination Interview form must also be revised so as to show something other than
3 At Respondents ' request, Cronkrite 's deposition was taken on September 4, 1963. It
was not offered in evidence.
GENERAL ENGINEERING, INC., ETC. 941
a termination due to reduction in force. This was done by typing in a reference to a
transfer and an allegedly falsified reason for absence. Now it could appear that
Fowler was terminated not because the job was at a stage of completion which
no longer required his services, but because he had falsified a reason for absence.
I find that Fowler was not reinstated as the Respondents contend; that he actually
had been given temporary work which extended little beyond the time when the
hearing concerning his unlawful discharge was in progress.
During the trial on the complaint in this matter in September 1959, at a time
when Fowler was working on the construction project, counsel for the General
Counsel, in response to an inquiry made by the Trial Examiner, said that he did
not contend that the job given to Fowler on August 17 was not substantially
equivalent to that from which he had been discharged on June 19. At a further
point in the colloquy, the same counsel suggested that the Respondents had "by
reinstating" Fowler sought to lessen any backpay liability. It is argued that the rein-
statement of Fowler was thus conceded. Certainly, it indicates that counsel thought
that Fowler had his job back but this conclusion probably was reached without knowl-
edge that Fowler was hired upon a labor requisition limiting the hiring authority
to 90 days, and certainly was reached without knowledge that within a few weeks
General Manager Cronkrite would discharge Fowler because the job on which he
was working had reached a certain stage of completion.
A Board Order of reinstatement does not carry with it any requirement that a
reinstated employee thereafter be shielded from all hazards affecting tenure. It
does not limit the right of an employer after reinstatement to use the employee on
any work which in the employer's judgment the employee is qualified to perform.
But reinstatement means "reinstatement of the employee to his former position
wherever possible," 4 and only if that position is no longer in existence, then to a
substantially equivalent position. Clearly and unmistakably, Fowler was not rein-
stated to his former position in the maintenance department. Clearly and un-
mistakably he was given work of a temporary nature. I find that Fowler has never
been reinstated to his former position as the Board - Order as enforced requires.5
II. AS TO BACKPAY
Because from June 20, 1959, through April 30, 1961, Fowler was in the employ of
the United Steelworkers of America, AFL-CIO, the Charging Party in this proceed-
ing, claim for reimbursement for lost earnings attending his unlawful discharge is
made only for the period beginning May 1, 1961.
At the time of his termination in June 1959, Fowler was receiving an hourly
rate of $2.20. I find, using the wage history of Cecil E. Cole who was in a helper
classification in the maintenance department with Fowler at the same rate at
the time of the latter's discharge, that by May 1, 1961, Fowler's rate by reason of
general wage increases would have risen to $2.55. That rate remained unchanged
until September 11, 1961, when it rose to $2.65 and, again on December 11 of that
year, to $2.70. On this latter occasion, Cole's classification was changed from
maintenance helper, F-5, to maintenance man, F-10. Cole died in March 1962.
General raises continued to be made and, consulting the employment history of
others 6 in the maintenance department, I find that Fowler's rate would have increased
on March 26, 1962, to $2.75; on June 25, to $2.80; on October 29, to $2.85; on
January 28, 1963, to $2.90; and on May 20, to $2.95.7 In calculating gross.backpay,
I have used the rate which, I find was effective for the greater part of the. quarter.
Thus if a wage increase took place after mid-quarter, I have applied the lower rate for
the entire quarter and conversely. I recognize, of course, that it cannot be known
with certainty that Fowler's pay would have continued to increase as I have found
that it would. I also recognize that Fowler is a skilled welder who in other employ-
ment during the periods mentioned was paid at hourly rates considerably higher
than those postulated. As absolute certainty is not possible, I find that the assump-
tions made as to Fowler 's hourly earnings had he remained in Respondents ' employ
are reasonable.
4 See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
5 Because there has not been compliance with the Order and Decree in respect to Fowler's
reinstatement and as the Order and the Decree are outstanding with undiminished force,
there Is no occasion for me to recommend that the Board reissue Its Order In this par-
ticular. I shall refrain from doing so.
Wilson, May, and Patrick.
P There is testimony that no "general helper" Is paid more than $2.70. It is clear that
this ceiling is not applied to "maintenance helpers."
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In calculating the amount of backpay due, I have not considered as interim earn-
ings the amounts that Fowler realized from the sale of fruit from his small acreage
or whatever he may have earned in doing "custom" work for his neighbors. These
items of income were earned in a manner which did not affect his availability for
employment and had been earned in the past when he had other employment. The
claim of 100 a mile for use of Fowler 's car in commuting to employment and in
seeking employment is a reasonable charge . It was his unlawful discharge which
forced him to drive long distances to employment or in search of it, and the Respond-
ents are not in a position to insist that he do so at a minimum rate. No claim is
made for the additional hours that Fowler necessarily spent in travel to and from
his interim employment . I consider that the dues paid by Fowler to Steamfitters
Local 235, in Portland , Oregon , through which he was referred on more than one
occasion to employment and long distance telephone calls to that Local in connec-
tion with employment to be reimbursable items of expense.
I find that Fowler is entitled to backpay as follows:
Period Interim
earnings
Expenses
Net
interim
earnings
Back pay
Gross Net
1961-
5/1-6/30--- ------------------ $100 $15 $85 360 his @ $2.55= $918 $833
7/1-9/30------ ---------------- 1,560 23 1, 537 520 hrs @ 2.55=1,326 0
10/1-12/31-------------------- 8 1,436 625 811 520 hrs @ 2.65=1,378 567
1962-
1/1-3/31-- -------------------- 205 103 102 520 hrs @ 2.70=1,404 1,302
4/1-6/30---------------------- 1,952 634 1,318 520 hrs @ 2.75=1,430 112
7/1-9/30--------------------- 1, 541 475 1, 066 504 hrs @ 2.80=1,411 345
10/1-12/31-------------------- 2, 035 627 1,408 476 hrs @ 2.85=1,357 0
1962-
1/1-3/31 ---------------------- 2,462 66 2,396 520 hrs @ 2.90=1,508 0
4/1-6/30---------------------- 158 0 158 520 hrs @ 2.90=1,508 1,350
aTotal net back d eyp u
through June 30,1963---- 4, 509
Liability for further backpay continues until Fowler is offered reinstatement to his
former job.
[Recommended Order omitted from publication.]
8I have added to interim earnings the sum of $9 which Fowler earned from Wanapum
Powerhouse Joint Venture on October 16, 1961. Fowler did not collect this pay but it is
unclear why he did not do so.
J. W. Mays, Inc. and Local 635, Home Furnishings Employees
Union , Retail Clerks International Association , AFL-CIO.
Cases Nos. 2-CA-9142, 2-CA-9142-0, 2-CA-914-3, 2-CA-9142-4,
and 2-CA-9391. June 29, 1964
DECISION AND ORDER
On February 20, 1964, Trial Examiner Sidney Sherman issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices vio-
lative of Section 8 (a) (1) and (3) of the Act and recommending that it
cease and desist therefrom and take certain affirmative action, as rec-
ommended in the attached Decision. The Trial Examiner also found
147 NLRB No. 104.