Swan Rubber Co.

National Labor Relations Board - Board Decisions

Sep 26, 1961

133 N.L.R.B. 375 (N.L.R.B. 1961)

SWAN RUBBER COMPANY 375
Swan Rubber Company and United , Rubber, Cork, Linoleum and
Plastic Workers of America, AFL-CIO
Swan Rubber Company and United Rubber, Cork, Linoleum and
Plastic Workers of America ;. Local 414, AFL-CIO. Cases Nos.
8-CA-2195 and 8-CA-2208. September 26, 1961
DECISION AND ORDER
On February 7, 1961, Trial Examiner James A. Shaw issued his
Intermediate Report in the above-entitled proceeding, finding that
Respondent had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the Intermediate Report attached hereto.
Thereafter, the, General Counsel filed exceptions to the Intermediate
Report, together with a supporting brief.
The Board has reviewed 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 'Inter-
mediate Report, the exceptions and brief, and the entire record in this
case, and finds merit in the exceptions of the General Counsel. Ac-
cordingly the Board adopts the findings of the Trial Examiner only
to the extent they are consistent with the decision herein.
The essential facts have been stipulated by the parties.' Respondent
operates two plants in Bucyrus and Carey, Ohio. Local 267, Rubber
Workers, has'represented the employees at Bucyrus since 1957; Local
414, Rubber Workers, one of the Charging Parties herein, has repre-
sented the employees at Carey' since 1950. Separate collective-
bargaining agreements for each location expired about May 1, 1960;
and separate negotiations, which had commenced in March, broke
down over three issues : union shop, checkoff, and arbitration. On Sun-
day, May.8,1960, the two locals struck their respective plants.
Respondent decided to reopen the Bucyrus plant at once as it was
the exclusive producer ' of special hose products for an automotive
manufacturer and for other companies, and Respondent was con-
cerned about losing these accounts, On May 9, the first workday of
the strike,, a "substantial number" of employees crossed the picket
line at.Bucyrus, Upon reporting for work, they were told that they
could have any available job, for which they were competent, on a
permanent basis. They were also told they would be protected against
bumping or future layoffs, regardless of their previous seniority, as
against those employees who did not report for work before,the end
of the strike. The nonstrikers were instructed to inform the, strikers
of Respondent's promise of supersenior.ity; and to induce them, to
i The stipulation is set forth in full in the Intermediate Report.
133 NLRB,No. 31.
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
abandon the strike and return to work. In addition, Respondent's
supervisors visited the picket line themselves, informing the strikers
of the superseniority and job transfer offer.
Acting upon the inducement of this offer, additional Bucyrus em-
ployees abandoned the strike and returned to work within the next 4
days. No new replacements were hired. A week after it began, Local
267 called off the strike at Bucyrus. Thereafter, in the course of
economic layoffs, approximately 19 of the former strikers, who had
been recalled when the strike ended, were laid off solely because of
their reduced seniority under Respondent's superseniority plan.
These laid-off employees constitute the alleged discriminatees at
Bucyrus.2
The Carey plant manufactures small tires for lawnmowers, chil-
dren's toys, etc. Unlike Bucyrus, the Carey plant had built up a
surplus of manufactured items, and Respondent made no effort to
operate the plant for almost a month, until June 2, 1960. On June 2,
Respondent sent a letter to all Carey employees, offering them super-
seniority and choice of jobs, as in its offer to the Bucyrus strikers, if
they would return to work during the strike. The promise was re-
peated in another letter dated July 8.
Accepting Respondent's superseniority offer at Carey, approxi-
mately 75 employees crossed the picket lines and returned to work. In
addition, 107 new employees were hired during the strike. The super-
seniority offer applied only to the returning strikers and not to the
new replacements.
In the course of subsequent negotiations at Carey, Local 414 agreed
to accept Respondent's superseniority policy until June 1, 1961, if the
returned strikers who had received superseniority would agree to go
back to their old jobs. By secret ballot held July 16, the returned
strikers rejected this proposal.
On July 23, the Carey strike was called off. Thereafter, on Sep-
tember 19, 1960, one employee was laid off solely as a result of his
reduced seniority under Respondent's superseniority plan at Carey.'
The amended complaint alleges, and the General Counsel contends,
that Respondent violated Section 8(a) (1) and (3) by offering and
granting superseniority to the strikers at Bucyrus and Carey, if they
abandon the strike and return to work. As noted above, the Trial Ex-
aminer dismissed the complaint. Relying particularly on the Ninth
Circuit's decision in the Potlatch Forests 4 case, the Trial Examiner
2 It appears that most or all of the laid -off employees were subsequently recalled by
Respondent . The parties ' stipulation left open the possibility that other recalled strikers,
not there identified , may later have been laid off as a result of the superseniority plan.
s Following the end of the strikes in both plants, separate decertification petitions were
filed Pursuant to a consent election, Local 267 was decertified in Bucyrus ; the petition
for the Carey plant was dismissed for Insufficient showing.
4N.L.R .B. v. Potlatch Fore8t8 , Inc., 189 F. 2d 82 ( C.A. 9), reversing 87 NLRB 1193.
Contrary to the Trial Examiner 's statement in the Intermediate Report, no petition for
certiorari was filed In Potlatch.
SWAN RUBBER COMPANY 377
held that "motivation" was the crucial factor in determining the
validity of Respondent's superseniority plan. Finding that Respond-
ent was motivated by a desire to keep its plants in operation during
the strike, and finding no evidence of an express desire on Respond-
ent's part to punish the strikers, the Trial Examiner concluded that no
violation had been committed.
In the recent Erie Resistor 5 case, the Board considered at length
the legality of granting superseniority to strikers and strike replace-
ments in order to induce them to abandon a strike and return to work.
The Board concluded there that superseniority was a form of dis-
crimination beyond the purview of an employer's right to replace
economic strikers, which had been sanctioned in the Mackay Radio 5
case, and was, moreover, "in direct conflict with the express provisions
of the Act prohibiting discrimination." The Board held, therefore,
that the grant of superseniority during a strike vas in clear violation
of Section 8 (a) (1) and (3) of the Act.
In making this finding, the Board specifically noted that "every
employer faced with a strike, or any other form of union activity,
will be first concerned with the well-being of his business." However,
in the Board's view, this concern could not sanction the "pervasive
form of preferred treatment" represented by a grant of superseniority.
The Board respectfully disagreed with the Ninth Circuit's contrary
view in the Potlatch case, supra.
We believe that the views and considerations expressed in Erie Re-
sistor, supra, ,are equally applicable to this case. Accordingly, for the
reasons stated in Erie, we reverse the Trial Examiner herein, and find
that Respondent violated Section 8(a) (1) and (3) by offering and
granting superseniority to strikers at its Bucyrus and Carey plants.'
In addition, we find that Respondent further violated these sections
by laying off a number of recalled strikers after the strike, solely as a
result of their reduced seniority under Respondent's superseniority
plan.
THE REMEDY
Having found that the Respondent has violated the Act, we shall
order that it cease and desist therefrom, and take certain affirmative
action necessary to effectuate the policies of the Act.
6 Eric Resistor Corporation, 132 NLRB 621.
e N.L.R . B. v. Mackay Radio S Telegraph Co., 304 U.S. 333.
We note particularly that Respondent offered superseniority only to strikers and not
to the strikers' replacements hired at Carey. See our discussion of this point in Erie
Resistor , sv.pra.
In view of our finding that a desire or need to resume production dons not excuse the
type of conduct engaged in by Respondent, we do not pass upon Respondent's contention
that, in the circumstances of this case, it was in fact necessary to offer superseniority in
order to induce strikers to return.
Also, in view of our decision herein , we find it unnecessary to consider whether the
Respondent had an express discriminatory intent in instituting its superseniority plan.
See California Date Growers Association, 118 NLRB 246, enfd. 259 F. 2d 587 (C.A. 9).
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As we have found Respondent's grant of superseniority to have been
discriminatory and in violation of the Act, we shall order the Re-
spondent to rescind its action, and restore all strikers to the seniority
they would have enjoyed absent Respondent's discrimination.
We have also found that Respondent discriminated against certain
strikers who were recalled, by laying them off solely as a result of the
operation of its superseniority policy. We shall order that Respond-
ent, insofar as it has not already done so, offer reinstatement to all such
strikers who would not otherwise have been laid off, dismissing if
necessary any employees who were retained solely because of Respond-
ent's grant of superseniority.1 If, after such dismissal, there are not
enough positions for all the remaining employees, including the dis-
criminatorily laid-off strikers, the available positions shall be distrib-
uted among them, without discrimination because of their union mem-
bership, activity, or participation in the strike, following such system
of seniority or other nondiscriminatory practice as heretofore has been
applied in the conduct of Respondent's business. Those discriminatees
for whom no employment is immediately available after such distribu-
tion shall be placed upon a preferential hiring list, and they shall there-
after, in accordance with such list, be offered reinstatement as posi-
tions become available, and before other persons are hired for such
work. Reinstatement, as provided herein, shall be without prejudice
to the employees' seniority or other rights and privileges.
We shall also order that Respondent make whole those former
strikers who were discriminatorily laid off for any loss of pay they
may have suffered as the result of Respondent's superseniority policy,
by payment to each of them of a sum of money equal to the amount
which he normally would have earned as wages during the periods
(a) from the date of his layoff to the date of the Intermediate Report
herein, and (b) from the date of this Decision and Order to the date of
Respondent's offer of reinstatement,9 or placement on a preferential
hiring list in the manner hereinabove described, less his net earnings
during said periods. Such loss of pay shay be computed on the basis
of separate calendar quarters, in accordance with the policy enunciated
in the Woolworth 10 case.
ORDER
Upon the entire record in this case, and pursuant to Section 10(e)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Swan Rubber
8 The General Counsel raises no question with respect to the new replacements hired at
Carey, who were neither offered nor granted superseniority . Nor does he contend that
the strikes at either plant were aggravated or prolonged by the Respondent's unfair labor
practices, so as to convert them to unfair labor practice strikes.
9 When the Board, contrary to the Trial Examiner , orders reinstatement to dis-
criminatees, backpay is abated from the date of the Intermediate Report to the date of
the Board's Decision and Order.
'OF. W. Woolworth Company, 90 NLRB 289.
SWAN RUBBER COMPANY 379
Company, Bucyrus and Carey, Ohio, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Maintaining or giving effect to its strike superseniority policy,
or to any other seniority or layoff policy which differentiates between
employees with respect to the order in which they are to be selected
for layoff, or with respect to any other aspect of their employment rela-
tionship, on the basis of whether or not they had worked during a
strike.
(b) Discouraging membership in Locals 267 and 414, United Rub-
ber, Cork, Linoleum.and Plastic Workers of America, AFL-CIO, or
in any other labor organization of its employees, by laying them off
solely as a result of the operation of a discriminatory superseniority
policy, or otherwise discriminating against them in regard to their
hire or tenure, of employment or any term or condition of employment,
except as authorized in Section 8 (a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
(c) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed in Section 7
of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Rescind its strike superseniority policy, and restore all strikers
to the seniority they would have enjoyed absent the superseniority
policy.
(b) Insofar as it has not already done so, offer all strikers, who
were laid off solely as a result of the superseniority policy, immediate
and. full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights and priv-
ileges, or place them on a preferential hiring list, in the manner set
forth in "The Remedy" section of this Decision.
(c) Make whole all discriminatorily laid-off strikers for any loss
of pay they may have suffered as the result of Respondent's super-
seniority policy, in the manner set forth in "The Remedy" section of
this Decision.
(d) Preserve and, upon request, snake available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the seniority and reinstatement
rights of employees and former employees and the amounts of backpay
due under the terns of this Order.
(e) Post at its plants in Bucyrus and Carey, Ohio, copies of the
notice attached hereto marked "Appendix." 11 Copies of said notice,
n In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to be furnished by the Regional Director for the Eighth Region, shall,
after being duly signed by the Respondent, be posted by it immediately
upon receipt thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(f) Notify the Regional Director for the Eighth Region, in writing,
within 10 days from the date of this Order, what steps the Respondent
has taken to comply herewith.
APPENDIX
No'rTci, To ALL EDIrr .oYi.,J s
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:
AVE WILL NOT maintain or give effect to our strike superseniority
policy, or to any other seniority or layoff. policy which differenti-
ates between our employees with respect to the order in which they
are to be selected for layoff, or with respect to any other aspect
of their employment relationship, on the basis of whether or not
they had worked during a strike.
WE WILL TOT discourage membership in Locals 267 and 414,
United Rubber, Cork, Linoleum and Plastic Workers of America,
AFL-CIO, or in any other labor organization of our employees,
by laying them off solely as a result, of the operation of a dis-
criminatory superseniority policy, or otherwise discriminating
against them in regard to their hire or tenure of employment or
any term or condition of employment, except as authorized in
Section 8 (a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 19,59.
J(TE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of rights guaranteed
in Section 7 of the Act.
WE WILL rescind our strike supersemority policy, and restore all
strikers to the seniority they would have enjoyed absent the su-
perseniority policy.
HATE WILL, insofar as we have not already done so, offer all strik-
ers who were laid off solely as a result of our superseniority policy,
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges, or place them on a preferential hiring list.
SWAN RUBBER COMPANY 381
WE WILL make whole all discriminatorily laid-off strikers for
any loss of pay they may have suffered as the result of our super-
seniority policy.
SWAN RUBBER COIIIPANI,
Employer.
Dated---------------- By--------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 clays from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges and amended charges filed by United Rubber, Cork, Linoleum and
Plastic Workers of America, AFL-CIO, herein referred to as the Charging Union,
and/orlLocal 267, Bucyrus, Ohio, the General Counsel of the National Labor Rela-
tions Board, through the Regional Director of the Eighth Region (Cleveland, Ohio),
issued a complaint dated August 26, 1960, in Case No. 8-CA-2195, alleging that
the Swan Rubber Company, Bucyrus, Ohio, herein called the Respondent, has en-
gaged in and is engaging in unfair labor practices in violation of Section 8(a)(1)
and (3) of the Act. In its answer, the Respondent admits certain allegations in the
complaint but denies the commission of any unfair labor practices.
Thereafter, upon charges filed by the Charging Union, Local 414, Carey, Ohio,
the General Counsel, through the Regional Director of the Eighth Region (Cleve-
land, Ohio), on September 9, 1960, issued a complaint and notice of consolidated
hearing in Cases Nos. 8-GA-2195 and 8-CA-2208 alleging that the Respondent,
Swan Rubber Company, has been engaging in and is engaging in unfair labor prac-
tices affecting commerce as set forth and defined in the National Labor Relations
Act, as amended, 61 Stat. 136; 73 Stat. 519, herein called the Act, in violation of
Section 8(a)(1) and (3) of the Act. On the same date, September 9, 1960, the
Regional Director issued his order consolidating cases, i.e., Cases Nos. 8-CA-2195
and 8-CA-2208. Thereafter on or about September 16, 1960, the Respondent filed
its answer to the complaint in Case No. 8-CA-2208, in which it admitted certain
allegations, but denied the commission of any of the alleged unfair labor practices.
On September 16, 1960, the Regional Director issued his "Amendment To Com-
plaint In Case No. 8-CA--2195." Since the amendments referred to constitute the
principal issues herein, the Trial Examiner sees no harm in setting them forth herein
below:
The General Counsel of the National Labor Relations Board, on behalf of
the Board, by the undersigned Regional Director, amends the Complaint issued on
August 26, 1960, in Case No. 8-CA-2195, by revisit g Paragraphs 7, 8 and 11
in the manner set forth hereinbelow:
7. Respondent, through its officers, agents and supervisors, promised
and implemented the benefits described above in Paragraphs 5 and 6, to
the employees described above in Paragraphs 5 and 6, for the purpose
of rewarding those employees who crossed the picket line, and punishing
those employees who refused to cross the picket line. [Emphasis supplied.]
8. The Respondent, through its officers, agents and supervisors, on or
about May 16, 1960, and at various times thereafter, did select for layoff
and then laid off employees Virgile Evans, Elmer Nolen, Frank Spears,
Roger Russell, James Long, Willie Douglas, James Nordyke, Henry John-
son, Jewell Shaw, E. R. Meade, J. G. Johnson, Robert E. Groves, R. G.
Gearhart, D. L. Snavely, Kenneth France, John T. Carpenter, Marie
Richardson, Carol Adkins, Hester Dyer, Mary Ann Gubernath, Helen
Snavely, Harrietta Burchett, Everett Kephart, 'T'homas Cullman, Woody
Miller, Roland Miller, David Brown and Ella Miller, and other employees
whose identities have not yet been ascertained.
11. By the acts set forth above in Paragraphs 5, 6, 7, 8 and 9, Re-
spondent did discriminate, and is discriminating, in regard to hire or tenure
or terms or conditions of employment of its employees named above in
Paragraphs 6 and 8, thereby discouraging membership in the Union and
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other labor organizations , and Respondent did thereby engage in, and is
engaging in, unfair labor practices within the meaning of Section 8(a)(3)
of the Act.
On the same date, September 16, 1960, the Regional Director also issued his
"Amended Complaint In Case No. 8-CA-2208 and Notice of Consolidated Hear-
ing." 1 Thereafter, in due course the Respondent filed its answer to the "Amended
Complaint in Case No. 8-CA-2208," in which it admitted certain allegations but
denied the commission of any of the unfair labor practices. At the hearing herein
the General Counsel orally amended the complaint in Case No. 8-CA-2195, by
deleting the names of certain employees to conform to a stipulation entered into
by the parties at the hearing herein of which more anon.
Pursuant to notice, a hearing was held on September 26, 1960, in Bucyrus, Ohio,
before the duly designated Trial Examiner. All parties were present and repre-
sented by counsel and were afforded full opportunity to adduce evidence, to ex-
amine and cross-examine witnesses, to present oral argument , and to file briefs.
During the course of the hearing all parties joined in a request to the Trial Examiner
to adjourn the hearing to October 10, 1960, so that they could get together and
submit to him a stipulation as regards certain factual matters . The Trial Examiner
granted their request. Thereafter on or about October 5, 1960, the Trial Examiner
received a stipulation from the parties together with a request that the Trial Ex-
aminer issue an order closing the hearing. On October 24, 1960, the Trial Examiner
issued his "Order Closing Hearing," in which he granted the parties 20 days to file
briefs. Thereafter on or about November 10, 1960, counsel for the Respondent
filed a brief with the Trial Examiner, which he has carefully considered.
Upon the entire record and from his observation of the witnesses , the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE COMPANY 'S BUSINESS
The consolidated complaints allege and Respondent 's answers admit that Re-
spondent is and at all times material herein a corporation , duly organized and exist-
ing by virtue of the laws of the State of Ohio, with its principal offices and place
of business in Bucyrus , Ohio, and with as plant in Carey, Ohio, where it is engaged
in the manufacture, sale, and distribution of rubber products. Respondent, in the
course and conduct of its business operations , annually causes and has continuously
caused its products in excess of $1,000,000 , to be sold, delivered , and transported
in interstate commerce to and through the States of the United States other than
the State of Ohio.
In the circumstances the Trial Examiner finds that the Respondent is engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, and
its Local 414 are labor organizations within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issues herein
In the considered opinion of the Trial Examiner the issues herein were succinctly
stated by the General Counsel's representative at the hearing herein. His comment
in this regard was as follows:
Mr. Ross: The issues in this case, actually in both cases, are two.
The first issue . . . is whether an employer may offer super-seniority to
participants in a strike in order to induce them to abandon their concerted
activity, and, whether such during the pendency of a strike is a violation of
8(a)(1) of the Act.
* * *
The second issue is, whether the adoption of a super-seniority policy
during the pendency of a strike, with its later implementation and modifica-
tion, is a violation of Section 8(a) (1) and 8(a) (3) of the Act, in that, it leads
to the discrimination of members who are participating in concerted 'activities
and also to discourage union membership,
'In Cases Nos. 8-CA-2195 and S-CA-2208.
SWAN RUBBER COMPANY 383
B. The, facts
At the onset of the hearing herein the General Counsel offered in evidence a
"Stipulation of Facts" signed by the representatives of all the parties.2 After query-
ing the representatives of the parties in this regard the Trial Examiner admitted
the documents in evidence and approved the stipulation. Except for the brief testi-
mony of four witnesses the foregoing constitutes the entire record in the instant
case insofar as the factual situation is concerned. In the circumstances the Trial
Examiner is convinced that the stipulation in its entirety should be embodied herein.
Consequently it follows below:
STIPULATION OF FACTS
The following Stipulation of Facts is entered into by and between Joseph L.
Halberstein, Counsel foi the Respondent, Swan Rubber Company, James V.
Barbuto, Counsel for th -. Charging Parties, United Rubber, Cork, Linoleum
and Plastic Workers of Amorica, AFL-CIO (herein called the Union) and
United Rubber, Cork, Linoleum and Plastic Workers of America, Local 414,
AFL-CIO (herein caller : Local 414), and Harold A. Ross, Counsel for the
General Counsel of the National Labor Relations Board.
Respondent corporatio i is engaged in the manufacture and sale of rubber and
plastic products. It has a manufacturing plant located in Bucyrus , Ohio, and
one in Carey, Ohio. Th. employees employed in the Carey, Ohio, plant have
been represented by Local 414 since about 1950. The employees of the Re-
spondent employed in Bucyrus , Ohio, had been represented by Local 267 of the
Union since about 195j, Separate collective bargaining contracts covering
employees at each location were entered into on May 1, 1958, which by their
terms, expired on or about May 1, 1960.
After due notice by Local 267 and Local 414, the Respondent and said Locals
entered into negotiations in March, 1960, with a view toward negotiating a new
contract with respect to wages, hours, and other terms and conditions of em-
ployment. These negoti itions were conducted separately as between the two
locations, in line with the previously established policy. These respective ne-
gotiations resulted in the resolving of many of the major differences but in both
instances there existed three primary issues upon which no agreement could be
reached. These three issues were the demand of the respective Locals for the
inclusion in a contract between the parties of a union shop clause, a checkoff of
dues clause, and provision for arbitration of grievances. None of these pro-
visions had been included in previous contracts between the Company and
either of the Locals.
Due to the inability of the parties to reach agreement on these three issues,
said Locals called the employees at both locations out on a strike on Sunday,
May 8, 1960.
On Monday, May 9, 1960, a substantial number of employees at the Bucyrus,
Ohio, plant of the Respondent crossed the picket lines set up by Local 267 at the
Bucyrus plant and reported for work as usual. After reporting for work, these
employees were orally notified by a representative of the Respondent that they
could have any job which was open in the plant which they desired and which
they were competent to perform, on a permanent basis. These employees were
further notified by the Respondent that they would be protected against bumping
or future layoff, irrespective of their prior relative seniority standings, as against
those employees who did not report for work prior to the termination of the
strike. They were further notified that these provisions would be applicable to
them only so long as they remained on the jobs which they chose at the time.
These employees were instructed by the Respondent to disseminate this offer to
other employees of the Respondent then out on strike as an inducement for them
to abandon the strike and report for work.
The offer thus stated to those strikers who first abandoned the strike and re-
turned to work, was circulated by word of mouth to the other striking employees
of the Respondent who were employed at the Bucyrus, Ohio, plant. Pursuant to
this offer, and acting upon the inducement thereof, a substantial number of
employees abandoned the strike and crossed the picket line and reported for
work during the next four days. On about May 15, 1960, Local 267 called
off the strike at the Bucyrus, Ohio, plant and instructed the employees still out
on strike to report for work on Monday, May 16. During the course of the
2 See General Counsel's Exhibit No. 2.
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strike at the Bucyrus , Ohio , plant of the Respondent , no new employees were
hired. The only employees who worked during the course of the strike were
employees who had been- employed prior to the strike and did not participate
therein, and those who went on strike but had abandoned the strike 'to return
to work pursuant to the offer of the Respondent above stated.
As the employees 'abandoned the strike and returned to work prior to the
termination of the strike , appropriate notations were made on the Respondent's
seniority lists, for those individuals, signifying that they had returned to work
before the termination of the strike, and that they, therefore, pursuant to the
above stated offer of the Respondent, could not be "bumped" from their jobs by,
nor laid off prior to, employees who did not return to work until after the ter-
mination of the strike, irrespective of the seniority standing of the employees on
said seniority lists. The regular seniority list would apply to any other purpose
as to which seniority was or is the criteria , except as to layoff and bumping as
described herein. - ' • -
The Respondent's Bucyrus plant is divided into five divisions. For the pur-
poses of bumping and layoff, a separate seniority list was maintained and
utilized -by the Respondent' for- each of, the'five divisions -prior to the strike. At
the top of each` of these lists was the name of -the individual who had the longest
term of service in that particular division, and in descending order of length of
service in that' particular division were listed all the other employees of that
division, until, at the'end,.was the name of the employee with'the least amount
of, service in, that division. - The - normal' procedure, prior to the strike, for
selecting employees- for layoff was toJ start at the bottom-of -the list, with the
employee with the least,'amount of • service in that-'particular- division, and
proceed'up the list until 'the number to be laid off had been laid"off. 'Excep-
tions to this procedure occurred only when those employees who would nor-
mally be retained were not qualified to perform available work. The seniority
lists were and are still kept in the same manner since strikers began abandoning
the strike to return to work, except that next to certain names on the list the
Respondent placed a mark signifying that that individual had returned to work
before the termination of the strike and therefore enjoyed the "super-seniority,"
so-called, which was contained in the Respondent's offer mentioned above. The
method of selecting employees for 'layoff was and is the same since strikers
began abandoning the strike to return to work, except that those employees who
have this significant mark next to their names, who would normally be laid
off, were and are not laid off, but were and are passed over, and employees who
have greater divisional seniority but who do not have this mark next to
their names were and are laid off instead.
Sometime after the termination of the strike by the said Local 267 and the
return of the strikers to work, it was necessary for the Respondent to lay of}
certain employees in various divisions of the plant. In selecting the employees
for this layoff, the Respondent applied the standard of super-seniority which
was offered to those employees who abandoned the strike and returned to work
prior to the termination of the strike. Thus, certain employees were laid off
by Respondent who would not have been laid ofj under the Respondent's pre-
strike seniority policy, had it not been for die application by Respondent of the
super-seniority policy mentioned above, since these employees had more di-
visional seniority than those who were retained in employment by Respondent.
[Emphasis supplied.]
The employees thus adversely affected by the application of the super-seniority
rule, and the dates of their layoffs are as follows: Elmer Nolen, laid off June 14,
1960, recalled August 8, 1960; Frank Spears, laid off June 14, recalled Au-
gust 8; Roger Russel, laid off June 14, recalled August 9; James Long, laid off
June 14, recalled August 5; Willie Douglas, laid off June 14, recalled August 8;
James Nordyke, laid off June 14, recalled August 8; Henry Johnson, laid off
June 14, recalled August 3; Jewell Shaw, laid off June 14, recalled August 2;
J. G. Johnson, laid off May 18, recalled June 16; Robert E. Graves, laid off
May 20, recalled July 25; R. G. Gearhart, laid off May 18, recalled June 22;
D. L. Snavely, laid off May 18, recalled July 20; Kenneth France, laid off
May 18, recalled July 20; John T. Carpenter, laid off May 18, recalled June 13,
Marie Richardson, laid off May 20, recalled June 13; Jerry Napier, laid off
June 10, recalled July 20; Hester Dyer, laid off May 17, recalled June 20; Mary
Ann Gubernath, laid off May 19, recalled June 20; Virgil Blankenship, laid off
May 17, recalled June 1. The entire period of layoff in the case of each indi-
vidual mentioned above is attributable to the application by Respondent of said
super-seniority policy above mentioned. In addition to the above-named em-
SWAN RUBBER COMPANY 385
ployees, there may be other employees at the Bucyrus, Ohio, plant who are or
have been laid off, whose layoffs were affected by the super-semority policy re-
ferred to above. Counsel for the General Counsel, notwithstanding this
Stipulation, reserves the right to introduce evidence and testimony concerning
the latter employees at time of hearing. [Emphasis supplied.]
The super-seniority policy adopted during the strike, described above, is still
maintained by Respondent in full force and effect with respect to the employees
at the Bucyrus plant of the Respondent. Subsequent to the end of the strike a
Decertification Petition was filed by certain employees of the Respondent with
the Eighth Region of the National Labor Relations Board, in Case No. 8-RD-
211, and in the ensuing election, Local 267 was decertified. [Emphasis supplied.]
No attempt was made by Respondent to operate the Carey, Ohio, plant until
on or about June 2, 1960, when a letter was sent by Respondent to all of the em-
ployees of the Respondent employed at the Carey, Ohio, plant, who were then on
strike, offermg them the same proposition that had been offered to the employees
at the Bucyrus plant, upon the same condition they they return to work prior
to the termination of the strike This letter was signed by Mort Nussbaum,
Chairman of the Board of Directors of the Resondent, and is attached hereto
as,Appendix A and is made a part hereof. Again, on about July 8, 1960, a
second letter, also signed by the Chairman of the Board of the Respondent, was
sent to all of the employees of the Respondent employed at the Carey plant,
reiterating the same offer of super-semori ty upon the same terms and conditions
set out in the previous letter. This letter is attached hereto as Appendix B and
is made apart thereof. These letters made substantially the same offer, on
the same conditions, as was made orally to the employees at the Bucyrus
plant. Pursuant to the offer contained in these letters and acting upon the
inducement thereof, approximately 70-75 employees crossed the picket lines
and returned to work. Just before the strike began at the Carey plant, there
were approximately 415 employees employed at this plant, all of whom went out
on strike on May 8, 1960. The super-seniority policy was applied only to,
those persons who returned during the strike who were employees and was not
applied to about 107 new employees hired during the strike at the Carey plant.
Subsequent negotiations resulted in Local 414 conceding on the three major
issues presented previously in this Stipulation, and acceptance of the Company's
wage proposal, so that the major issue then blocking settlement of the strike
was that of super-seniority granted strikers who had returned during the progress
of the strike. The Company, in an effort to effect settlement, offered, if Local
414 agreed to settle on that basis, to go to those who had returned during the
strike and seek their release of the Company from its promise concerning the
permanency of the jobs to which they had been assigned upon their return to
work. An oral understanding was reached under which Local 414, upon rati-
fication by its membership, would accept the super-seniority for those who had
returned during the strike, until June 1, 1961, if such employees agreed to re-
turn to the respective jobs held by them at the time the strike began. The
Company, in an effort to effect a settlement on this basis presented such pro-
posal to those who had returned during the strike, in a meeting held on July 16,
1960. By secret ballot, however, said employees rejected the settlement ar-
rangement. The Company refused, in view of these circumstances, to go back
on its commitments to these employees and the tentative settlement arrange-
ments collapsed. Subsequently, the Company again wrote to all those still out
on strike, urging them to return on the same basis as had been previously out-
lined. This letter, signed by W. C Loughley, Vice President and Manager,
Carey Division, is attached hereto as Appendix C and is made a part hereof
Subsequent to the above-related events. Local 414 and Respondent met and
discussed arrangements to settle the strike.
On or about July 23, 1960, as a result of negotiations between the Respondent
and Local 414, the strike was called off and the employees then still on strike
were instructed to report for work on July 25, 1960 Recently, there has been
occasion to lay off employees at the Carey, Ohio, plant and such layoffs have
been made pursuant to the super-seniority policy outlined above. The identity
of the employees affected has not yet been ascertained. Counsel for the
General Counsel, notwithstanding this Stipulation, reserves the right to intro-
duce evidence and testimony concerning them at time of hearing.
The super-seniority policy adopted during the strike, described above, is still
maintained by Respondent in full force and effect at the Carey plant, as it is at
the Bucyrus plant, as described above. On or about August 15, 1960, a Decerti-
fication Petition was filed by certain employees at Respondent's Carey plant
624067-62-vol 133-26
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the Eighth Region of the National Labor Relations Board in Case No.
8-RD-217. That case is pending.
Those strikers returning to work after the termination of the strikes at both
the Bucyrus, Ohio, and Carey, Ohio, plants have retained full seniority rights as
among themselves for all purposes.
The parties to this Stipulation expressly reserve the right to produce further
admissible testimony and such other further admissible evidence at the hearing
herein as they deem necessary and proper to adequately set forth the facts of
these cases in the interest of a full and complete record.
(S) Joseph L. Halberstein,
JOSEPH L. HALBERSTEIN,
Counsel for Respondent,
Swan Rubber Company.
(S) James Barbuto,
JAMES V. BARBUTO,
Counsel for Charging Parties.
United Rubber, Cork, Linoleum and Plastic
Workers of America, AFL-CIO, and
United Rubber, Cork, Linoleum and Plastic
Workers of America, Local 414, AFL-
CIO.
(S) Harold A. Ross,
HAROLD A. Ross,
Counsel for the General Counsel,
National Labor Relations Board.
Dated September 26, 1960.
APPENDIX A
SWAN RUBBER COMPANY
Rubber and Plastic products for home and industry
BUCYRUS, OHIO. USA
JUNE 2, 1960.
DEAR FELLOW EMPLOYEES: To date you have now been deprived of approxi-
mately $350 because of the strike being sponsored and carried on by Local 414.
We presume that you know that the Company had offered a number of contract
improvements as well as a wage increase of 5¢, immediately, 50 in eight months
and 5¢ in sixteen months. We agreed to distribute this to the several classifi-
cations to be arrived at in conference with the Union Committee. A great deal
of comment was made about the sad plight of hourly rated employees, and we
agree that these people are the ones who need wage adjustments.
In spite of the pity which the Union Committee extended to these lower paid
people, they did not hesitate to put them out of work completely for an in-
definite period of time . . . now almost four weeks. As we see it, no reason-
able wage increase we could grant would ever recover the losses either for
hourly-rated or piece-rated workers due to this uncalled-for work stoppage.
Since the strike started, we changed our wage offer to 100 per hour immedi-
ately and 5¢ per hour on June 1, 1961 to apply only to hourly rated employees.
We understand this offer was also rejected by the Union.
Why are you being deprived of your right to earn a living? This is how we
understand it. First, the Union wants us to force you to join up and pay dues
in order to earn a living for your family . . . this we will not do. Secondly,
they want us to deduct your dues as long as you work for the Company . . .
this we will not do. If you want to join the Union and pay dues, that is your
privilege, but we will not make you a captive of any protection society in order
to earn a living with our Company. There is one other matter they call
"Arbitration" which they say they must have That means that anytime they
don't like the way we dispose of an argument, they could call in an outsider to
tell us what to do. How many times have you ever had a dispute that wasn't
adequately settled by our officials? This is the surrender of a management
right, and we will not grant the demand. Notice that not one of the foregoing
items affects your pay check . . . it only sets up the Union organization to
prey on you as long as you work.
How long are you willing to let this go on? Do you want to get back to
work9 Are you willing to be called ugly names by the "brothers" and "sisters"
to enjoy the freedom to work which should be guaranteed to you? We are
SWAN RUBBER COMPANY 387
willing to operate the plant if enough people are ready and willing to exercise
their right to work.
The law guarantees the right of any worker who accepts a job while an
economic strike is still on, to keep that job after the strike is called off. Strikers
returning (after the strike is called off) will be offered whatever vacancies are
unfilled by people who have returned ahead of them. If their old job is open,
they would be offered it first; if not, they can select an open job in order of
seniority. People who return before the strike is called off will be protected
from bumping or lay-off as long as they stay on the same job; however, if they
bid a better job from then on, their plant seniority will govern.
If you want to work, we urge you to get in touch immediately with Mr.
Loughley, Mr. Vaughn or Mr. Terry so that proper assignments and scheduling
can be made. It will take several days to place the plant in condition to re-
sume operations. If this doesn't happen soon, it won't make any difference,
becuse we will have no business and you will have no jobs. WHICH IS MORE
IMPORTANT .. . THE UNION-OR YOU?
Cordially yours,
SWAN RUBBER COMPANY
(S) MORT G. NUSSBAUM, Chairman,
Board of Directors.
APPENDIX B
SWAN RUBBER COMPANY
Bucyrus, Ohio
JULY 8, 1960.
To: ALL EMPLOYEES
Due to numerous and misleading rumors circulating in the Carey area, the
position of Swan Rubber Company is herewith being restated:
1. SENIORITY: Divisional and plant seniority is being respected as written
in the expired contract with the exception that employees presently working will
be protected from bumping or lay off on their present jobs insofar as economic
conditions will permit. If you return to work today and your job has not been
filled, you will be eligible for your former position. If your job has been filled
during your absence you can select an open job in line with your seniority and
ability to perform such work.
2. WAGE OFFER: The local Union rejected the last offer made by the Com-
pany which was 1G per hour effective May 1, 1960 and 5¢ per hour effective
June 1, 1961, to apply only to non-incentive employees. This wage offer still
stands.
3. NON-ECONOMIC ISSUES: The Company will not concede to the Union
demand for a union shop and check-off which would require that every em-
ployee belong to the Union and pay tribute to it for the purpose of holding a
job with Swan Rubber Company; nor will the Company agree to the Union
demand for arbitration which would involve an outside party coming in and
telling the Company how to run its business. We sincerely believe that any
differences between our employees and Company representatives can continue,
as in the past, to be handled best between the parties themselves without out-
side interference.
4. INJUNCTION PROTECTION: An injunction issued by the Common
Pleas Court of Wyandot County bars the Union, its representatives, members
and associates from interfering in any manner with the Company operation and
with those employees who desire to work. It directs the law enforcement
agencies to see that said order is carried out. Any threats, intimidation, coercion
or interference should be immediately reported to the police officials who are
charged with the duty of taking proper action against those responsible.
5. VACATION POLICY: Any employee who would have been entitled to a
vacation check as of June 1, 1960, if there had been no labor dispute, will be paid
his vacation pay on the payday following his completion of four consecutive
weeks of work provided he returns no later than December 31, 1960
The above is the Company's policy and is issued for your information
Respectfully,
SWAN RUBBER COMPANY,
(S) M. G. NUSSBAUM,
Chairman, Board of Directors.
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX C
SWAN RUBBER COMPANY
Bucyrus-Carey-Ohio
TO EMPLOYEES STILL ON STRIKE:
July 19, 1960.
On Thursday , July 14, 1960 , as a result of negotiations held at the Court-
house, Upper Sandusky , Ohio , in which Federal Mediator Frank Denner, Judge
Russel Kear and members of the Carey Citizens' Committee participated , a basis
for strike settlement was reached as follows:
(1) The Union dropped its demand for a Union Shop , Check Off,
Arbitration and agreement was reached on Economic Matters.
(2) The Union at a meeting called for 2:00 PM, Saturday , July 16,
1960 , was to go to its membership to get agreement to a contractual
guarantee that employees who had returned to work during the strike
would be protected against lay off or bumping until June 1, 1961.
We were advised that this approval was obtained.
(3) The Company, on advice from the Union that the strike could
be settled on the above terms was to meet with those employees who,
had returned during the strike and present the matter to them to see
if they would agree to return to the respective jobs held by them at the
time the strike started.
(4) This meeting was held and the members of the Carey Citizens'
Committee were present. After full discussion a vote by secret ballot
was taken . A substantial majority refused the proposal to go back to
the jobs they held when the strike started. As a result the hoped-for
termination of the strike did not come about.
Because the Company is faced with immediate need for increasing its produc-
tion to meet customer demands, the Company has no alternative but to continue
to hire replacement for strikers.
THE LONGER YOU WAIT THE MORE LIKELY THAT AVAILABLE
WORK WHICH MIGHT BE YOURS IS BEING PERFORMED BY RE-
PLACEMENTS, OR HAS CEASED TO BE AVAILABLE BECAUSE THE
COMPANY HAS LOST ITS CUSTOMERS THROUGH FAILURE TO SUP-
PLY THEIR NEEDS. We urge you to return now and thereby protect your
future security.
Sincerely yours,
LOUGHLEY(S) W C ,..
Vice President and Manager, Carey Division.
In supplementation of the foregoing stipulation the Respondent called the follow-
ing witnesses who testified at hearing herein, Fred C. Ward, vice president and gen-
eral manager, and Joseph L. Halberstein, its secretary and general counsel.
In passing the Trial Examiner feels that the Respondent's position as regards its
conduct is set forth in the above stipulation should be set forth herein at this time.
Briefly stated its position is summed up in the following excerpt from its counsel's
opening statement:
So, we believe, that when you have heard the evidence on the part of the Com-
pany, the stipulations as previously entered into, it will be clear, that the Com-
pany did not, in this case, discriminate against anyone; or attempt to discourage
them from membership in, or organization in the Union, or bargaining
representative.
That the Company's action, which was taken here was for one purpose only,
and that was to proitect the continuation of its business, which we submit, is
permissible under the law. [Emphasis supplied.]
In support of its position the Respondent called as its first witness, Fred C. Ward,
vice president and general manager.
In the considered opinion of the Trial Examiner one of the most important matters
that he testified about was the relationship between the Company and the Union
over the years. That they were amicable and in conformity with the ideals set forth
in the preamble of the Act is best told in the following excerpt from his testimony in
this regard, which stands uncontradicted and undenied in the record herein and is
fully credited by the Trial Examiner:
Q. Now, Mr. Ward, can you tell us something about the past relationship
between the Company and the Union Local Number 414 in Carey?
SWAN RUBBER COMPANY 389
A. The Union in Carey was organized and certified, I believe, about ten
years ago. We have had a number of negotiations. Naturally, there has always
been differences where someone had to compromise to reach an agreement. But
in all of that time we have only had one stoppage which lasted about three days.
As ,I understand it, the issue at that time, was a difference on a wage offer that
we hadn't agreed on at the time, and which by compromise was settled with no
further difficulties. I have been called in the final stage of the bargaining in
Carey, perhaps eight or ten times, at most, during that ten year period, which to
me indicates that certainly our management and the union committee have not
had any great difficulty in working together.
Q. Mr. Ward, can you tell us about the relations between the Company and
Local 414 representing the employees at Bucyrus?
A. Local 414 does not-
Q. I'm sorry. Local 267?
A. Well, Local 267 was organized sometime early in the '40's, and was cer-
tified bargaining agent in our plant for about five or six years. In 1948, going
back a little bit, in 1946, there was a strike in Bucyrus which lasted approxi-
mately ten weeks. The big differences at that time were economic matters. In
1948, the Union was decertified. They came back about six or seven years
later and were recertified as the bargaining agent. Since that this-since that
time we have had, I believe, two contracts, if my memory serves me properly,
and while we have had the usual differences, we have never had any problem
working out those differences. I believe I could introduce witnesses, if it be
the will of the Hearing Officer; which will affirm the fact, that whenever a
problem came up I have always stopped what I was doing to try to go with this
President of the Union, or Head of the Executive Committee, or whoever the
contact might have been, to try to get at the bottom of the problem as quickly
as possible without letting the matter grow into something terribly big.
We have made, what I believe to be, an honest effort to work with the organ-
ization because we knew that it was a way of life in our present day existence.
As further indicated above in the stipulation of the parties, several of the Respond-
ent's employees at its Bucyrus, Ohio, plant ignored the Union's strike call and reported
for work on Monday, May 9, 1960 3 According to Ward, he and other responsible
executives of the Respondent "walked" the picket line that was set up at its Bucyrus,
Ohio, plants particularly the Mansfield Street plant, and begged the employees to
come back to work. His testimony in this regard is in the opinion of the Trial
Examiner of the utmost importance in his ultimate disposal of the issues herein.
Primarily because it shows the motivation of the Respondent in putting into effect
its super-seniority policy to persuade its employees to abandon the strike and go
back to work. For this reason the following excerpt from Ward's uncontradicted
and undenied testimony, which is fully credited by the Trial Examiner, is set forth
below.
Q. Isn't it a fact, that as the people came into work that they were notified
that a new seniority policy-I'm talking about Bucyrus now-would be put in
effect concerning them?
A. No. They were notified while they were still out.
Q. At Bucyrus?
A. I was-yes. I, and any number of our supervisory personnel were down
on the picket line. We walked the picket line right along with the strikers and
we had occasion to converse with many people. We tried to find out just
exactly what was wrong. We couldn't find anybody that seemed to know why
he was out there
They were all told, as many people as we could get to listen, that, if they
would go back they would be allowed to chose their job, and be protected
against bumping or layoff in the future.
But for all other purposes their seniority ruled.
Q. Now, of course, as to the first group that came in this was not done
because they were not on the picket line, is that correct?
A. They could not have been told prior to that time.
TRIAL EXAMINER: In other words, you were walking the picket line too'
The WITNESS: Yes, sir.
In addition to the foregoing activity the employees who returned to work were
requested to spread by "word of mouth" to employees who were either on strike or
absent from work, the Company's policy as regards "super-seniority."
The record shows that several of the employees actually reported around , 11 p.m.,
Sunday, May 8, 1960, presumably to work on the morning ' shift starting at 12 m.
390 DECISIONS OF NATIONAL ' LABOR RELATIONS BOARD
That the Respondent was particularly concerned about the effect of the strike on
the operations in its Bucyrus, Ohio, plant, is likewise found in the testimony of Ward.
As the Trial Examiner interprets the record, the "Bucyrus" operations are at several
locations in the city of Bucyrus, Ohio. The main plant, as he sees it is called the
"Mansfield Street" plant. In addition there are at least three other locations, and
probably another, however, as indicated above, the record is none too clear on this
phase of the case. 'Consequently the Trial Examiner will refer to the plants in
Bucyrus, Ohio, as the "Bucyrus" - plant. According to Vice President Ward, the
Bucyrus plant was primarily engaged in the manufacture of rubber hose. Its products
ranged from garden hose to specialities such as hose for automatic washing machines,
and most important of all hose for automobile manufacturers. One of its principal
customers was the Oldsmobile division of General Motors. In order to supply this
particular account the Respondent installed special machinery which was operated
by specially trained workers. It was this account that caused the Respondent grave
concern at the time the strike was called, and, as the Trial Examiner sees it, led to
its executives going out on the, picket line and beseech its employees to abandon the
strike and return to work. What concerned the Respondent's officials primarily was
the fact that the strike was called right at the time it was expected to supply the
demands of Oldsmobile and those of the washing machine manufacturers. The big
"headache," so to speak, was the Oldsmobile account, because it had required the
installation of specially designed machinery and the training of personnel to operate
it. Another factor was the fact that it had taken several years for it to secure the
account , and it was afraid that if it failed to satisfy Oldsmobile's requirements, that
it would take the account elsewhere. Such a possibility naturally caused the officials
of the Respondent grave concern, and as the Trial Examiner sees it led to the granting
of super-seniority to those of its employees who abandoned the strike and returned
to work. The record also shows that the Respondent did not advertise for or attempt
to hire "outsiders" to take the place of the striking employees during the tenure of
the strike at its Bucyrus, Ohio, plants. Since all parties agree that the strikes we
are concerned with herein were "economic" in origin, the Respondent could have
with impunity not only hired outsiders to take the place of its employees who were
on strike but could have given them either a bonus or higher hourly wages. As
indicated, this it did not choose to do?
The situation at the Carey plant was different from that at the Bucyrus plant for the
following reasons. To begin with the Carey plant was primarily engaged in the manu-
facture of small tires for vehicles, like children's toys, lawnmowers, and other similar
articles. Moreover they were items which could be placed in stock and at the time
of the strike there were enough on hand to meet the usual demands at this season of
the year. The background and the events leading up to the strike at the Carey,
Ohio, plant have been set forth above in considerable detail in the "Stipulation" of
the parties and for that reason the Trial Examiner sees no reason to reiterate them
at this stage of the report Suffice it to say that the "super-seniority" policy offered
to the striking employees at the Bucyrus plant, was also made to the employees at
the Carey plant, in consideration for their abandonment of the strike and return to
work.
Conclusions
The primary question with which we are concerned is whether the Respondent vi-
olated Section 8(a) (1) and (3) of the Act by inducing its employees to abandon an
economic strike at its Bucyrus and Carey, Ohio, plants by promising and in fact
granting them superseniority status upon their returning to work?
Before proceeding further the Trial Examiner feels that certain important factors
should be considered . First , the record clearly shows the strike was for economic
reasons, and secondly, there is no dispute that the Respondent had the right to
permanently replace the strikers in such circumstances, in view of the finding of
the Supreme Court of the United States, in N.L R.B v. Mackay Radio & Telegraph
Company, 304 U.S. 333, 345-346, wherein it said-
an employer, guilty of no act denounced by the statute, has • [not] lost
the right to protect and continue his business by supplying places left vacant by
strikers. And he not bound to discharge those hired to fill the places of
strikers, upon election of the latter to resume their employment, in order to
create places for them. The assurance by [the employer] to those who accepted
4 See Tames Publishing Company, 72 NLRB 676; see the Board's brief in the Lewin-
Mathes Company, Division of Cerro De Pasco Corporation, Respondent, at page 6 (foot-
note 3, last sentence ) ; Case No. 14-CA-1917 ; 126 NLRB 936 ; U.S.C.A. ( 7th Circuit
No. 13081-December 19, 1960).
SWAN RUBBER COMPANY 391
employment during the strike that if they so desired their places might be per=
manent was not an unfair labor practice nor was it such to reinstate only so
many of the strikers as there were "vacant places to be filled."
As indicated above in the excerpt from the complaint, the controversy herein
stems from the, Respondent's granting of superseniority to its employees who either
returned to work during the strike or remained on the job regardless of the "Strike
call" by the Union. Cases involving similar situations have been before the Board and
the courts before, and,they have passed upon the legality of a policy which accords
a form of superseniority to nonstrikers or strike replacements as against strikers.5
The General Counsel in his oral argument before the Trial Examiner recognized
the seriousness of the question at issue herein, but insisted that the Respondent's
conduct was, as alleged in the complaints, violative of Section 8(a)(1) and (3) of
the Act, regardless of the, ruling of the United States Court of Appeals for the Ninth
Circuit, 189 F. 2d 82, 86, in denying enforcement of the Board's Order, in the
Potlatch Forests, Inc., case, 87 NLRB 1193, of which more anon.'
The Respondent on the other hand contended at the hearing and in its brief that
under the facts found above, and set forth for the most part, in the stipulation of the
parties, that the circuit court's decision in the Potlatch case was correct and is
applicable to the disposition of the issues herein, and consequently the complaints
as amended should be dismissed in their entirety.
Let us now look at the Potlatch decision. In that case the Board had before it
the legality of an employer granting superseniority to economic strikers and found
that such conduct was violative of Section 8(a)(1) and (3) of the Act. In the
opinion of the Trial Examiner, the following excerpt from the Intermediate Report
should be inserted below. The Trial Examiner's reasoning in this regard will be
apparent below:
The controlling rule was recently restated by the Board in General Electric
Company, 80 NLRB 510 [23 LRRM 1094], as follows: ". . except to the
extent that a striker may be replaced during an economic srtike, his employ-
ment relationship cannot otherwise be severed or impaired because of his strike
activity."
There can be no doubt, and it is now well settled, that a seniority policy
which classifies employees according to whether they had worked during a
strike, or had not, to the detriment of the relative seniority standings of these
who had not, discriminatorily and illegally impairs the employment relationship
of those who had exercised their right under the Act to engage in concerted
activities. See General Electric Company, supra; Precision Castings Company,
48 NLRB 870 [12 LRR Man. 147]; and Paper, Calmenson and Company, 26
NLRB 553 [6 LRR Man. 603]. And this is so regardless of whether or not
there is in existence at the time a collective bargaining agreement covering the
subject of seniority. . The Act's protective provisions, safeguarding em-
ployees against discrimination for having chosen to exercise their statutorily
guaranteed rights, apply independently of contract. They are no less applicable
where the discriminatory penalty for having exercised such rights takes the
form of a departure for having exercised such rights takes the form of a
departure from the order in which an employee could otherwise expect to be
laid off upon an economic curtailment, than where it takes the form of an
outright discharge of an employee whose tenure of employment is not pro-
tected by a contract.
The Respondent refused to comply with the Board's Order and the case was
taken to the United States Court of Appeals for the Ninth Circuit for enforcement.
In due course the circuit court denied enforcement of the Board's Order, N.L.R.B. V.
Potlatch Forests, Inc., 189 -F. 2d 82, 86 (C.A. 9). As the Trial Examiner sees it
one of the controlling factors in the circuit court's refusal to enforce the order,
was the Respondent's motive in granting superseniority to returning strikers. The
court based its finding on the premise that there was no substantial evidence before
it to justify a finding that the Respondent was motivated by a desire to punish or
penalize those who participated in the strike; and secondly, as'the Trial Examiner
sees it, a most compelling factor in the court's ;decision was the fact that the Com-
pany had advocated `strike seniority'. before the strike was settled. It must be
In passing the Trial Examiner desires to point out that, as he interprets the above-
Inserted stipulation of the parties, "outsiders" hired by the Respondent during the strike,
at its Carey, Ohio, plant, wer e not granted superseniority as an inducement to cross the
picket line and go to work in its plant. It was only given to its regular employees.
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remembered that in the instant case the Respondent advocated and promised super-
seniority to the employees in its Bucyrus plant on the very first day of the strike and
at its Carey, Ohio, plant, several days before the strike was settled. In considering
the Respondent's position we should keep in mind its amicable relations with the
Union over the years as set forth in the stipulation of the parties.6
Now back to the Potlatch case, the court concluded, upon the facts before it that
"the `discrimination' between replacements and strikers is not an unfair labor prac-
tice despite a tendency to discourage union activities, because the benefit conferred
upon the replacements is a benefit reasonably appropriate for the employer to con-
fer in attempting to protect and continue his business by supplying places left vacant
by strikers."
Following the decision of the circuit court in the Potlatch case the Board filed a
petition for certiorari with the Supreme Court of the United States which was denied.
Other cases that have been before the Board involving the superseniority issue
are the Mathieson Chemical Corporation and/or Olin Mathieson Chemical Corpo-
ration, 114 NLRB 486, enfd. 232 F. 2d 158; and the California Date Growers Asso-
ciation, 118 NLRB 246, enfd. 259 F. 2d 587. In both of these cases the Board
had before it questions involving superseniority, but the facts therein differed
materially from those found in the Potlatch case. Upon the fatcs before it in each
case the Board found violations of Section 8(a)(1) and (3) of the Act. Its posi-
tion in each case was sustained by the Circuit Courts of Appeals for the Fourth
and Ninth Circuits, respectively. In each of the cases, both the Board and courts
stressed the importance of "motivation," in other words what was behind the em-
ployer's granting of superseniority to its striking employees as an inducement for
their abandoning an economic strike and returning to work? In both of the above
cases the courts found "an unlawful motivation" behind the employer's offering of
superseniority to its striking employees. In the California Date Growers Association
case,7 the court pointed out that the facts therein were different from those found
in the Potlatch case in that in the latter case ". . . the employer made its position
as to superseniority and protection of employment tenure for non-strikers clear and
open before the termination of the strike," while in the Date Growers case, the
. employees were not informed of the change in seniority" until long after the
settlement of the strike." The court then held there was substantial evidence to
support the Board's finding that the Respondent's adoption of the superseniority
policy was motivated by a desire to punish the strikers.
The importance of "motivation" in granting superseniority to economic strikers
was again before the courts in Ballas Egg Products, Inc. v. N.L.R.B. 283 F. 2d 871
(C.A. 6). In that case the court affirmed a Decision and Order of the Board in
which it had found that the Respondent was motivated by antiunion considerations
in granting seniority bonuses to nonstrikers. The court said in its order:
This cause has been heard and considered on the briefs and oral arguments of
the attorneys and on the record, including the intermediate report of the trial
examiner and the decision and order of the National Labor Relations Board:
From which it appears that the conclusion of the board, affirming that of the
trial examiner, was supported by substantial evidence and well grounded in
law in holding that the petitioner's motivation in adopting, maintaining and
utilizing its superseniority policy was impelled by antiunion considerations rather
than by any economic interest of its own; and in holding that the case is con-
trolled by the decisions of the courts and the labor board in N.L.R.B. v Cali-
fornia Date Growers Association, 259 F. 2d 587, 42 LRRM 2805 (C.A. 9), af-
firming 118 N.L.R.B. 246, 40 LRRM 1163; and Olin Mathieson Chemical Cor-
poration v. N.L.R.B., 232 F. 2d 158, 37 LRRM 2845 (C.A. 4), affirming 114
N.L R.B. 486, 36 LRRM 1586.
Accordingly, the decision of the National Labor Relations Board is affirmed;
and its order is directed to be enforced.
Upon all of the foregoing, the Trial Examiner is convinced and finds that the
Respondent herein was motivated by a sincere desired to keep its plants in operation
during the strike called by the Union on or about May 9, 1960. This was particularly
obvious at its Bucyrus, Ohio, plant, where officials of the Respondent not only in-
formed the employees who reported for work regardless of the "strike call" by the
Union of its superseniority policy for those who reported for work, but requested
that they themselves spread the word amongst the striking employees. In addition
See supra for stipulation.
7 See supra for citation
CENTRAL FREIGHT LINES, INC. 393
several of the Respondent's officials walked the picket line themselves and begged the:
striking employees to return to work. The record clearly shows that the Respondent's:
conduct at both its Bucyrus and Carey, Ohio, plants was open and aboveboard, sox
to speak. There is no substantial evidence that the Respondent was motivated by a
desired to "punish" its striking employees by granting superseniority to those em--
ployees who reported for work.
In the circumstances discussed and described above, the Trial Examiner is con-
vinced and finds the sole motivation behind the Respondent's conduct at its Bucyrus.
and Carey, Ohio, plants was for legitimate economic reasons, and hence permissible
and not violative of the Act. Consequently he will recommend below that the com-
plaints in Cases Nos. 8-CA-2195 and 8-CA-2208 be dismissed in their entirety..
Upon the basis of the foregoing findings of fact, and upon the entire record,
the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The operations of the Respondent occur in commerce 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. The Respondent has not engaged in unfair labor practices as alleged in the com-
plaints within the meaning of Section 8 (a) (1) and (3) of the Act.
[Recommendations omitted from publication.]
Central Freight Lines, Inc. and Chauffeurs, Teamsters and
Helpers Local Union No. 393, International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and Helpers of America,
Independent and General Drivers, Warehousemen and Helpers
Local Union No . 968, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America , Inde--
pendent and Dallas General Drivers, Warehousemen and
Helpers, Local Union No . 745, International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and Helpers of America,.
Independent . Cases Nos. 23-CA-847, 23-CA-872, and 16-CA-
1326. September 26, 1961
DECISION AND ORDER
On July 12, 1960, Trial Examiner James F. Foley issued his Inter-
mediate Report in the above-entitled proceedings, 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 Intermediate Re-
port attached hereto. Thereafter, the Respondent filed a motion for
remand or hearing de novo,l exceptions to the Intermediate Report,
and a supporting brief.
1 Subsequent to the hearing, Respondent in the alternative, moved to dismiss the com-
plaint or to remand the case for a hearing de novo . Respondent asserts, as grounds for
Its motion, that (1) the Trial Examiner assumed the role of advocate throughout the
proceedings as demonstrated by the record as a whole and the Intermediate Report ;
133 NLRB No. 32.