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National Labor Relations Board - Board Decisions

Aug 25, 1978

237 N.L.R.B. 1273 (N.L.R.B. 1978)

Pease Company and Ronald Osman. Case 9-CA
11452
August 25, 1978
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESDALE
On May 4, 1978, Administrative Law Judge John
P. von Rohr issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief. General Counsel filed limited ex-
ceptions and a supporting brief, and filed a motion to
amend the complaint.' Thereafter, Respondent filed
an answer to the General Counsel's limited excep-
tions and a motion to amend.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings,2 findings,3 and
conclusions 4 of the Admininstrative Law Judge and
to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Pease Company, Hamil-
ton, Ohio, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order.
I The General Counsel moved to amend the complaint to include seven
additional alleged discriminatees: i.e., seven employees on disability whose
benefits were, like the Charging Party's, denied as a result of the strike. That
motion is hereby denied on the ground that, contrary to the General Coun-
sel's contention, all relevant issues concerning these alleged discriminatees
have not been fully litigated.
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge concerning the testimony of the Charging Party
It is the Board's established policy not to overrule an Administrative Law
Judge's resolutions with respect to credibility unless the clear preponder-
ance of all of the relevant evidence convinces us that the resolutions are
incorrect. Standard Dry Wall Products. Inc.. 91 NLRB 544 (19S0). enfd. 188
F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no
basis for reversing his findings.
Respondent excepts to the Administrative Law Judge's crediting of em-
ployee Osman's testimony that, upon inquiring about his disability check.
he informed Respondent's vice president, Pease, that he "didn't know any-
thing about the strike until after it started and [he] had nothing to do with
it." Respondent contends, inter alto. that because Osman did not refer to his
having made such a statement to Pease in his testimony on direct examina-
tion, but rather did so only in his redirect testimony and in response to a
leading question by counsel for the General Counsel. the Administrative
Law Judge erred in according great weight to the statement It is clear from
PEASE COMPANY
the record. however, that Osman's redirect testimony was not in response to
a leading question which suggested a particular answer to the witness and
that such testimony was merels a clarification of his earlier testimonA We
therefore find Respondent's contention without merit.
In its decision in Pea.se Compant, 237 NLRB 1069 (1978), the Board
found the strike involved in this proceeding to be an unfair labor practice
strike, not an economic strike as the Administrative Law Judge here con-
cluded. However, the result in this case would be the same irrespective of
which category of strike was involved.
4 We agree with the Administrative Law Judge that Respondent violated
Sec. 8(aX I ) of the Act by terminating Osman's disability benefits because its
employees struck Such a conclusion is especially compelling where, as here,
Osman clearly indicated to Respondent that he had nothing to do with the
strike We therefore need not decide whether, as Respondent contends. an
employee has the burden of disavowing strike participation or whether, had
Osman not dissociated himself from the strike, we would have reached a
different result
DECISION
STATEMENT OF THE CASE
JOHN P YON ROHR Administrative Law Judge: Pursuant
to a charge filed on June 10, 1977, the General Counsel of
the National Labor Relations Board, by the Regional Di-
rector for Region 9 (Cincinnati, Ohio), issued a complaint
on July 29, 1977, against Pease Company, herein called the
Respondent or the Company, alleging that it had engaged
in certain unfair labor practices in violation of Section
8(a)(1) and (3) of the National Labor Relations Act, as
amended, herein called the Act. The Respondent filed an
answer denying the allegations of unlawful conduct alleged
in the complaint.
Pursuant to notice, a hearing was held before me in Cin-
cinnati, Ohio, on December 9, 1977. Briefs were received
from the General Counsel and the Respondent on January
17, 1978, and they have been carefully considered.
Upon the entire record in this case, and from my' obser-
vation of the witnesses, I hereby make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE EMPLOYER
The Pease Company is an Ohio corporation with plants
located in Hamilton, Ohio, and Fairfield, Ohio, where it is
engaged in the manufacture and sale of prefabricated
houses, doors, and building products.
During the 12 months preceding the hearing herein, the
Company purchased and received goods and materials val-
ued in excess of $50,000 which were shipped to its Ohio
plants from points and places located outside the State of
Ohio. During the same period, the Company derived
gross revenues in excess of $500,000. Respondent con-
cedes, and I find, that it is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II THE LABOR ORG(ANIZATION INVOLVED
Ohio Valley Carpenters District Council, United Broth-
erhood of Carpenters and Joiners of America, Local 1787,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
237 NLRB No. 205
1273
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III tHF UNF'IR LABOR PRA(Tr(I .S
A. The Issue
The issue in this case is whether Respondent was in vio-
lation of Section 8(a)(1) and (3) of the Act when it withheld
payment of certain supplemental disability accident bene-
fits from a disabled employee during the period of an eco-
nomic strike in which all of the unit employees partici-
pated. The employee was out on disability during the entire
period, including the start of the strike.
B. The Faclts
The material facts in this case are not in dispute. Re-
spondent has had a longstanding policy of providing sup-
plemental disability benefits to those of its employees who
are injured on the job and who are eligible for Workmen's
Compensation. These benefits are paid directly by the
Company in an amount equal to the difference between
that received by the employee from Workmen's Compen-
sation and the employees' regular 40-hour rate of pay. Al-
though the Company for many years has had collective-
bargaining agreements with the Ohio Valley Carpenters
District Council, United Brotherhood of Carpenters and
Joiners of America, Local 1787, AFL-CIO, the foregoing
disability benefits were not included in any of the con-
tracts.
The Union engaged in an economic strike in which all of
its 319 production and maintenance employees partici-
pated from March 1, 1977, until on or about August 18,
1977. On February 28, 1977, which was the expiration date
of the contract, Respondent terminated the payment of all
supplemental disability benefits including that of Ronald
Osman, the Charging Party herein.
Osman, a member of the bargaining unit, first became
employed by Respondent on August 31, 1972. In Novem-
ber of that same year he suffered a work related injury and
was off work until April 4, 1973. During this period Re-
spondent paid him the supplemental disability benefits
noted above. Osman resumed work on April 4, 1973, but
was again injured on the job on October 23, 1974. On the
latter occasion he was classified as temporarily totally dis-
abled and has not returned to work since. Respondent re-
sumed payment of the supplemental disability benefits in
late October 1974 and continued to pay them through Feb-
ruary 28, 1977, at which time Osman's benefits were termi-
nated due to the occasion of the strike.
In about the second week of March 1977, Osman called
the Company to inquire about his disability check. The
secretary who answered referred him to Burt Pease, Re-
spondent's vice president. Osman thereupon called Pease
and spoke to him. Osman's unrefuted and credited testi-
mony concerning the conversation which ensued was as
follows:
THE WITNESS: Well, he just told me that because of
the strike the Union was out and I wouldn't receive
my checks. I said, "Well, I didn't have anything to do
with it," and he said, "Well, you are still in the
Union."
Q. Did you say anything more?
A. I told him I didn't know anything about the
strike until after it started and I had nothing to do
with it.
C. Conclusions
Both the Respondent and the General Counsel acknowl-
edge that the Board's decision in an analogous case, South-
western Electric Power ('omepan, 216 NLRB 522 (1975), is
controlling here. There, all but 6 or 7 of 625 unit employees
engaged in an economic strike and the Board was pre-
sented with the question of whether the Employer violated
Section 8(a)( 1) and (3) of the Act because it suspended sick
pay payments to six unit employees who were on sick leave
at the beginning of the strike. In finding that the Employer
did not thereby violate the Act, and by further pinpointing
the issue as to "whether Respondent's belief that they [the
six unit employees in question] ratified and supported the
strike was reasonable," the majority of the Board stated as
follows:
At this point [the beginning of the strike], Respondent
had no way of knowing for certain whether the em-
ployees on sick leave-all of whom were members of
the Union--did not support the strike activities of
their colleagues. Clearly Respondent could not have
interrogated the employees as to their sympathies
without violating Section 8(a)(1). In the absence of
any indication whatsoever that the six employees did
not support the strike. it was entirely reasonable for
Respondent to assume that they did.
Although Respondent contends that "the General Coun-
sel has failed to elicit any testimony whatsoever indicating
that Osman had disaffirmed the strike or taken overt ac-
tion inconsistent with membership in and support for the
Union," I am impelled to find that the testimony of Os-
man, as related above, establishes the opposite to be true.
In my view the sum and substance of Osman's statements
to Pease clearly should have been indicative to Respondent
that Osman was not an initiator, participant, or supporter
of the strike. Moreover, in finding that the six employees in
Southwestern, supra, were strikers, the Board noted that
they effectively ratified the strike in that they raised no
protests when their sick pay benefits were terminated,
showed support for the Union during the strike, and testi-
fied that they would not have crossed the picket line had
they been able to work when the strike began. No such
factors were shown to have been present in this case. Ac-
cordingly, I find that Osman was not a striker. Since it is
further apparent that the Board would have found a viola-
tion in the Southwestern Electric Power case if it had been
shown that the six employees on sick leave did not support
the strike, I find that by discontinuing the supplemental
disability benefit payments to Osman, a nonstriker who
made it known that he did not support the strike, Respon-
Also relevant to the issue herein are Marathon Electric Mfg. Corp.. 106
NLRB 1171 (1953), and Bechtel Corporation. 200 NLRB 503 (1972). These
cases are fully discussed in Sourhwestern Electric Power, supra, to which
reference is made
1274
PEASE COMPANY
dent interfered with the Section 7 rights of this employee.
By such conduct Respondent violated Section 8(a)(l) of
the Act. 2
IV THE EFFECT OF THE UNFAIR LABOR PRACTIC ES tUPON
COMMERCE
The activities of the Respondent set forth in section III.
above, occurring in connection with the operations of Re-
spondent described in section 1, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V THE REMEDY
Having found that Respondent has enaged in certain
unfair labor practices violative of Section 8(a)(l) of the
Act, I shall recommend that it cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act.
It having been found that Respondent discontinued pro-
viding supplemental disability benefits to Ronald Osman
in violation of Section 8(a)(l), it is recommended that Re-
spondent make him whole for the loss of said benefits from
the time it ceased payments of these benefits at the outset
of the strike which began on March 1, 1977, until such time
as the payments are resumed, together with interest as pre-
scribed by the Board in Florida Steel Corporation, 231
NLRB 651 (1977). 3
CONCLUSIONS OF LAW
1. The Pease Company is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By engaging in the conduct described in section I11,
above, Respondent has engaged in and is engaging in un-
fair labor practices within the meaning of Section 8(a)( 1 ) of
the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
On the basis of the above findings of fact, and the entire
record, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER 4
The Respondent, Pease Company, Hamilton, Ohio, its
officers, agents, successors, and assigns. shall:
1. Cease and desist from:
(a) Discontinuing the payment of supplemental disabil-
ity benefits to employees who apprise Respondent that
they do not support a strike.
(b) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed them in
Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Make Ronald Osman whole for the loss of supple-
mental disability benefits he suffered in the manner set
forth in the section of this Decision entitled "The Rem-
edy."
(b) Post at its plants in Hamilton, Ohio, and Fairfield,
Ohio, copies of the attached notice marked "Appendix." 5
Copies of said notice, on forms to be provided by the Re-
gional Director for Region 9, after being duly signed by
Respondent's authorized representative shall be posted by
it immediately upon receipt thereof and be maintained by
it for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily post-
ed.
(c) Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.
Since the remneds herein found for the 8(aX i) violation is the same as
that as would he found for the alleged 8(aw3) violation. I find it unnecessary
to determine whether Respondent's conduct here was violative of Sec
8(aH3) of the Act In thlr (connecinlt i is noteworthy that during the strike
Respondent discontinued disahilits payments to nonunit. nonunion em-
plosees who were out on disabilhtv as well as to Osman.
See. generally. Isi Plumbing & Heating Co.. 138 NLRB 716 (1962).
In the event no excepmions are filed as provided by Sec 102 .46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and the recommended Order herein shall. as provided in Sec.
102 48 ,of the Rules and Regulations. he adopted by the Board and become
its findings, conclusions. and Order, and all objections thereto shall he
deemed waived for all purposes
In the event that the Order is enforced by a Judgment of the United
States ( iart of Appeals, the words in the notice reading "Posted b) Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States ( Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT withhold payment of supplemental dis-
ability benefits to those of our employees who apprise
us that they do not support a strike.
WE WILL NOT in any like or related manner interfere
with our employees' exercise of the rights guaranteed
them by Section 7 of the National Labor Relations
Act, as amended.
WE WI.L make Ronald Osman, a nonstriker, whole
for the loss of supplemental disability payments which
were not made to him during the strike which began
on March 1, 1977.
PEASF COMPANY
1275