Technitrol, Inc.

National Labor Relations Board - Board Decisions

Jan 5, 1973

201 N.L.R.B. 74 (N.L.R.B. 1973)

74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Technitrol, Inc. and International Union of Electrical,
Radio and Machine Workers , AFL-CIO-CLC.
Case 11-CA-4655
January 5, 1973
DECISION AND ORDER
BY MEMBERS FANNING , JENKINS, AND
PENELLO
On April 26, 1972, Administrative Law Judge'
Nancy M. Sherman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and has
decided to affirm the rulings, findings, and conclu-
sions2 of the Administrative Law Judge, as modified
herein, and to adopt her recommended Order.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Technitrol, Inc.,
Durham, North Carolina, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
i The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972
8 We agree with the Administrative Law Judge that Respondent's
payment to nonstrikers of a day's pay for a day not worked violated Section
8(a)(3) and ( 1) because Respondent's sole motivation therefor was to reward
the nonstrikers for not joining the strike , and that this case , therefore, is
subject to the same considerations as those on which we rested our 8(ax1)
violation findings in Aero-Motive Manufacturing Company, 195 NLRB No.133.
3 In adopting the Administrative Law Judge 's recommended remedy, we
construe the backpay requirement therein as applying to only those strikers
who would have been eligible for reemployment on July 16, 1971
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Trial Examiner: This proceeding,
heard at Durham, North Carolina, on February 22, 1972,
pursuant to a charge filed on August 10, 1971, and a
complaint issued on January 21, 1972, presents the
question of whether Respondent violated Section 8(axl)
I The General Counsel's unopposed motion to correct the transcript in
certain respects is hereby granted
and (3) of the National Labor Relations Act (herein called
the Act) by paying nonparticipants in a strike , but not
participants , for a day (immediately following the end of a
strike) during which Respondent had elected not to operate
its plant.
Upon the entire record ,' including my observation of the
witnesses , and after due consideration of the briefs filed by
the General Counsel, the Charging Party , and Respondent,
I make the following:
FINDINGS OF FACT
1. THE RESPONDENT'S BUSINESS AND THE LABOR
ORGANIZATION INVOLVED
Respondent is a Pennsylvania corporation which manu-
factures computer components at its Durham, North
Carolina, plant, the only plant involved in this proceeding.
It purchases and sells material directly across State lines
valued at more than $50,000 annually. Upon these facts I
find that, as Respondent admits, it is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act, and
that assertion of jurisdiction over such operations will
effectuate the policies of the Act. International Union of
Electrical , Radio and Machine Workers, AFL-CIO-CLC,
the Charging Party , is a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
The Union has represented Respondent 's production
and maintenance employees since its certification in
January 1968. Upon the expiration of an ensuing collec-
tive-bargaining agreement, about 120 unit employees
began an economic strike on June 23, 1971,2 the first strike
at this plant in at least 5 years , in order to support the
Union's demands as to the terms of a new contract . Except
for the first 2 days, the plant operated throughout the
strike , with a complement of about 18 unit employees. A
tentative agreement reached between the Respondent's
and the Union 's representatives late Thursday afternoon,
July 15, was ratified by the membership that evening.
After the tentative agreement was reached , the Union
told Respondent that if the contract was ratified that
evening, the strikers would be able to return the next
morning. However, the Union reluctantly acceded to
Respondent's request that the strikers not return to work
until Monday , August 2, at the conclusion of a scheduled
2-week vacation shutdown , and the strikers did not return
until that day. The complaint makes no allegation that
Respondent engaged in unlawful discrimination with
respect to the reinstatement of strikers.
About 4:15 p.m. on July 15, Plant Manager Petzak
instructed nonstriking employees who had worked in the
plant that day not to report to work on the following day.
2 All dates hereafter are 1971 unless otherwise stated.
201 NLRB No. 17
TECHNITROL, INC.
After the plant had resumed operations following the
vacation shutdown, the employees who had worked in the
plant on July 15 were paid for July 16. The employees who
had been on strike on July 15 were not paid for July 16.
The General Counsel and the Charging Party contend that
this disparity of treatment as to pay for July 16 was
unlawfully motivated, in violation of Section 8(a)(1) and
(3) of the Act, and in any event violated these statutory
proscriptions regardless of motivation.
B. The Material Conversations Bearing on
Respondent's Motivation
1. Introduction
In attempted support of the contention that the disparity
in payments was unlawfully motivated, the General
Counsel and the Union rely largely on certain conversa-
tions between Respondent's and the Union's representa-
tives on July 14, 15, and 16. The union representatives who
attended these conversations were International Repre-
sentative Daniels, who was present during all of them, and
various union officers who were present during some of
them-namely, Union President Dampier, Recording
Secretary Bordeaux , Chief Steward Burnette , Attorney
Eubanks, and IUE Staff Representative Williams. Of these,
Daniels, Dampier, and Bordeaux testified on behalf of the
General Counsel. Respondent's representatives who partici-
pated in these conversations were Industrial Relations
Manager Funkhouser, Personnel Manager Rozier, and
Plant Manager Petzak. None of these management
representatives was present at all of the critical conversa-
tions. Only one witness, Petzak, testified for Respondent.
Funkhouser tried the case on Respondent's behalf, but did
not testify. Rozier did not testify, nor was his absence
explained.
The testimony regarding the sequence of events, and
regarding the contents of some of these conversations, is
substantially undenied and provides assistance in resolving
the testimonial conflicts which do exist. Accordingly, I
shall first summarize the undenied testimony, and shall
then discuss the material testimony which is in conflict.
2. Undisputed evidence regarding the material events
The testimony as to material events on July 14 (both
before and during negotiations) is in sharp conflict, and
will be discussed later. Early in the morning of July 15,
Personnel Manager Rozier happened to meet International
Representative Daniels on the picket line and said that he
understood that the Union wanted to meet again that
afternoon and arrangements for such a meeting had been
made. Daniels replied that the Union would meet "on one
condition, that there would be no demand made for
3 My findings as to the incidents in the foregoing paragraph are based on
Daniels' undenied and credited testimony.
4 My findings as to this incident are based on Daniels ' undemed and
credited testimony.
S This finding is based on Caldwell's credited testimony . I do not believe
that her inability to remember the supervisor 's name required such an
unreasonably burdensome search by Respondent as to warrant me in failing
to give the usual weight to the fact that Caldwell's testimony stands
undenied
8 Lankford's title and duties are not disclosed by the record. At the
75
preferential treatment or super-seniority for the non-
striking employees." Rozier then returned to the plant.
Some 15 minutes later, Industrial Relations Manager
Funkhouser came to the gate and said, "I got your
message . We will meet with you around 11:00." Daniels
replied, "On one condition; we don't intend to meet if you
demand preferential treatment for the non-strikers."
Funkhouser replied that this would not be discussed.3
The parties met in two sessions on July 15, one beginning
about 2 or 3 p.m. and the other about 5 p.m. The testimony
as to the first session is in sharp conflict and will be
discussed later. During the second session , the Respon-
dent's sole representatives were Rozier and Funkhouser,
both of whom had also attended the session earlier that
day; Plant Manager Petzak, Respondent's remaining
representative at the earlier sessions , was not present.
Daniels remarked that Respondent had a new chief
negotiator, to which Funkhouser replied yes, that he
thought the persons present could resolve the dispute.
Daniels asked, "Is your demand still that you want
preferential treatment and super-seniority for the non-
strikers?" Funkhouser replied that there would be "no
preferential treatment for the non-strikers, that there would
be no super-seniority for the non-strikers, and that there
would be no monetary payments for the non-strikers for
work not performed; but that they would be treated just
like all other employees." 4
Prompted by a rumor among the employees, which
began around lunch time on July 15, about 2 p.m. on that
day nonstriking employee Elizabeth Caldwell asked one of
the supervisors whether they would have to work on July
16. The supervisor replied that they did not .5 An hour or so
later, Petzak and John Lankford6 called about eight
employees together and told them that after the settlement
of the strike, they would be on layoff status owing to the
new contract's seniority provisions. Petzak told them that
he was "pretty certain" the strike settlement and the return
would be "tonight or tomorrow." Petzak also privately
discussed with Lankford whether to tell the employees who
were working in the plant not to come back on July 16.
They agreed that this should be done if the strikers
returned to work that day. About 4:15 p.m., shortly after
the normal quitting time, Petzak told the employees who
had worked in the plant not to report to work the next day;
"that the striking employees may return, and consequently
we didn't want to take a chance on any sort of
confrontation, any disciplinary action, any physical dam-
age to the employees or the property." 7
About 6 p.m. that evening, the parties tentatively agreed
to a new contract. At this point, Rozier said that he would
like to discuss "the orderly return of the strikers." 8 Daniels
and Dampier replied that if the contract was ratified that
night, the strikers would be able to return the next
hearing , he made an appearance on Respondent's behalf , but did not testify.
7 This finding is based on Petzak's undenied and credited testimony.
a The hours which the witnesses attached to various events on July 15
may suggest that the reporting date discussion took place during the first
bargaining session on that day. However, the brevity and abrupt
termination of the first session under all versions of the events (see infra),
the sequence of events to which Daniels testified , Petzak 's credible
testimony that after 4 p.m. that day Funkhouser and Romer advised him by
telephone that a settlement had not yet been reached (see American Rubber
Products Corp v. N.LR B, 214 F.2d 47, 52 (C A. 7)), and the probabilities
(Continued)
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
morning, July 16. Rozier or Funkhouser stated that the
July 16 reporting date was not acceptable because only one
day remained before the vacation shutdown; business was
slack, 8 of the 18 employees working on July 15 having
already been laid off; and a return to work on July 16
would present various practical problems .9 The parties
agreed that the strikers would not return until Monday,
August 2.
All issues having thus been settled, Funkhouser invited
the Union negotiating committee to join him and Rozier in
the motel dining room for a drink. Over the drinks,
Funkhouser remarked "that his heart really wasn't in what
he was attempting to get done, preferential treatment for
the non-strikers, and he was rather proud of the fact that
the committee 'had stuck to their guns' and wouldn't yield
to it." 10
The following morning, July 16, company and union
representatives met to sign the contract. The testimony as
to the conversation on that occasion is in part disputed,
and will be discussed later.
After the plant reopened, union representatives met with
company representatives in an effort to resolve the dispute
over the payment to nonstrikers and the nonpayment to
the strikers. Personnel Manager Rozier asked the Union to
"pretend like it was an overpayment to the non-strikers; or
an oversight on their part." When Daniels replied that the
Union could not take this attitude, Rozier said that "he
was following orders from Philadelphia, that payment
would be made in Philadelphia, and that they would be
getting paid." ii
Respondent thereafter paid the employees who had been
working in the plant on July 15 8 hours' pay, at their usual
rate, for July 16, when Respondent had shut down the
plant. The employees who were on strike on July 15 were
not paid for July 16. The employees who were paid for July
16 did not find out that they would be paid until they
actually received such payment. During at least the 5
preceding years, Respondent had never before paid
employees for a full day not worked, other than vacations
and holidays.
3. The disputed evidence regarding the material
events
a. The July 14 lunch conversation between Daniels,
Petzak, and Rozier
On July 14, while the Union's and Respondent's
negotiators were lunching in the same restaurant at
of the situation persuade me that the "orderly return" issue was discussed
during the second bargaining session on July 15, and after rather than
before the contract was agreed to.
9 A synthesis of the credited testimony discloses that the parties took the
following position The Union wanted the identity of the employees who
were to work on July 16 to be determined on the basis of seniority.
Respondent did not want production to be interrupted by senior stokers'
"bumping" junior nonstrikers who had escaped layoff only because of the
strike , did not want to be obligated for "call-in" pay to anyone on July 16;
and wanted to avoid tension by postponing personal confrontation between
strikers and nonstrikers
Daniels testified that Respondent also tendered , as a reason for objecting
to the July 16 return date, that Respondent was closing the plant on that
day Dampier did not hear such a statement For the reasons set forth infra
at fn 18, and in accordance with Respondent's contention at the hearing, I
separate tables, Plant Manager Petzak asked Union
Representative Daniels to join him and Personnel Manager
Rozier at their own table. The testimony as to the ensuing
conversation is sharply disputed. According to Daniels,
Petzak remarked that "a new problem . . . had cropped
up," that Respondent "wanted super-seniority preferential
treatment for the non-strikers; that [Respondent] felt that
[it] owed them something for being so loyal to cross the
picket line and wanted to do something for them; that he
just couldn't throw them out the door.' " Still according to
Daniels, Petzak asked him not to say anything to the
negotiating committee about it, to which Daniels replied,
"I won't and if you are smart, you won't either."
Petzak testified that he told Daniels that "due to
production problems . . . we must maintain some of the
people in the plant;" and that Daniels suggested that
Petzak not bring it up, but that if he did, Daniels would not
discuss it. Still according to Petzak, Daniels stated that
"they all went out together and that they all should come
in together," and that "none of those scabs" should stay in
the plant. Rozier did not testify.
b. The July 14 and the first July 15 bargaining
sessions
As previously noted, the testimony is in sharp conflict as
to the bargaining session on July 14 and the first
bargaining session on July 15. These meetings were
attended by Daniels, Dampier, Bordeaux , and Burnette,
for the Union; 12 and by Funkhouser, Rozier, and Petzak,
for the Respondent.
Petzak, who was Respondent's only witness, testified that
during the July 14 bargaining session, he told the union
representatives that "in order to maintain some semblance
of production, we must call back out of seniority." 13 Still
according to Petzak, Daniels said in a "loud" tone that he
"didn't want to hear anything, he had heard enough as far
as he was concerned," and he and Dampier "stormed out"
of the room "rather abruptly." Although present at the first
July 15 session, Petzak was not specifically asked about the
events during the session . However, he denied that he ever
mentioned the terms "super-seniority," "preferential treat-
ment," or "bonuses."
The General Counsel called Daniels, Dampier, and
Bordeaux as witnesses . All of them testified that during the
July 14 session a representative of Respondent said that
Respondent felt it "owed" the nonstrikers something, and
it wanted "super-seniority" for nonstrikers.14 In agreement
do not credit Daniels in this respect.
19 This finding is based on Daniels' undenied and credited testimony.
11 My findings as to this incident are based on Daniels ' testimony, which
is undenied and which I credit. However, Daniels plainly erred in testifying
that this incident occurred on August 16. It is clear from the content of the
conversation that it occurred before the payments had been made. The
nonstrikers received these payments about August 6, and the charge
attacking them was dated August 9 and filed August 10.
12 The Union was also represented by Eubanks at the July 14 session and
by Williams at the first July 15 session.
13 Petzak testified that he had meant he wanted to follow this policy for
about a month, but was foreclosed from tendering the explanation by the
union representatives' action in thereupon walking out of the meeting.
14 Daniels attributed these statements to Funkhouser , and Dampier and
Bordeaux attributed them to Petzak.
TECHNITROL, INC. 77
with Petzak, Daniels and Dampier testified that they
thereupon left the room abruptly and angrily.
Daniels was the only witness who gave specific testimony
about the first session on July 15. According to Daniels,
the following events occurred: Funkhouser and Petzak
began that meeting by stating that they still wanted
preferential treatment for the nonstrikers. Daniels replied,
"I thought we had an understanding that this would not be
discussed, and we don't want to hear nothing about it. We
are not here for that purpose." After "several words were
exchanged," the Union representatives left the room.
c. The conversation during the execution of the
bargaining agreement
Only Daniels and Petzak testified about the conversation
which accompanied the formal execution of the bargaining
agreement on July 16.15 Daniels testified that on this
occasion he remarked to Petzak that "no one is at your
plant this morning," to which Petzak replied, ". . . that's
right, we decided to give the non-strikers a day off with
pay." Still according to Daniels, he replied, "... the
strikers is also entitled to a day's pay; they are willing and
able to return to work, and they are also available."
Daniels further testified that Petzak answered, ". . . like I
told you, we owe them something and this is what we are
giving them, and if you don't like it, you can file charges
with the Labor Board," to which Daniels replied that such
charges would be filed.
Petzak denied that on this occasion he discussed with
Daniels the fact that the plant was not operating, and that
he told Daniels that if he did not like it "he could take his
problem to the NLRB." Petzak was not asked about the
other remarks which Daniels attributed to him in this
conversation.
4. Resolution of the disputed evidence
In part 3, above, I have set forth testimony by the
General Counsel's witnesses which was denied by Respon-
dent's sole witness, Petzak. The General Counsel's contra-
dicted testimony is, briefly, to the following effect: At
lunch on July 14, Petzak told Daniels that Respondent
"wanted super-seniority preferential treatment for the non-
strikers"; that Respondent "owed them something" for
their loyalty in crossing the picket line. During the
bargaining session that afternoon a representative of
Respondent likewise said that it "owed" the nonstrikers
something and wanted "super-seniority" for nonstrikers;
and on the following morning Funkhouser and Petzak
stated that they still wanted preferential treatment for the
nonstrikers.
This contradicted testimony that Respondent's repre-
sentatives in fact made such statements gains strong
support from the uncontradicted testimony about the
conversations which punctuated the discussions at issue.
Thus, it is undenied that at the end of the negotiations,
Company representative Funkhouser conceded that Res-
pondent had unsuccessfully attempted to obtain "preferen-
tial treatment for the non-strikers." Similarly, it is
undenied that during the second July 15 session, Daniels
asked whether Respondent "still" wanted "preferential
treatment and super-seniority for the non-strikers," to
which Funkhouser replied that there would be "no
preferential treatment" or "super-seniority for the non-
strikers"-a reply which Funkhouser would hardly have
made if (as Petzak testified) Respondent had not in fact
previously advanced such demands. Likewise, it is unde-
nied that between the July 14 and July 15 sessions,
Funkhouser and Rozier acceded to Daniels' request for a
further negotiating session on condition that Respondent
would not demand "preferential treatment or super-senior-
ity" for non-strikers-a remark which these company
representatives would not likely have left unchallenged (as
they did) if (as Petzak testified) Respondent had not
previously advanced such a demand.
Additionally, although Petzak attributed to Daniels,
during their July 14 lunch-table conversation, the state-
ment that "none of those scabs" should stay in the plant,
on cross-examination he conceded, inconsistently, that
Daniels wanted the employees to come back according to
seniority, under which many nonstrikers would be re-
tained. Petzak's and Daniels' mutually corroborative
testimony about Daniels' display of anger at Respondent's
July 14 proposal lends some further support to the union
representatives' version thereof, and casts some doubt on
Petzak's version. Their testimony shows that upon hearing
Respondent's proposal, Daniels said he "had heard
enough" and "stormed out" of the room , hitting a table
hard enough to give him a swollen hand, and shoving a
chair and a rickety card table out of his way with such
force that the chair fell over and the table legs folded up.
The union representatives' version of the company propos-
al which precipitated this display seems more likely to
account for its conceded vehemence than does Petzak's
version.16
Accordingly, I credit Daniels' version of his July 14
restaurant conversation with Petzak and Rozier and of the
first July 15 bargaining session. I also credit the union
representatives' version (rather than Petzak's version) of
the July 14 session . While this credited testimony varied as
to certain details, these variations were not of such a nature
as to suggest that these witnesses' testimony was inaccurate
in substance, particularly in view of the noise and displays
of temper which accompanied the conversation. On the
basis of a synthesis of the more probable portions of their
testimony, I find that on July 14 the following exchange
occurred: Petzak stated that Respondent felt it "owed" the
nonstrikers something.17 Daniels thereupon asked if he
15 Dampier , Burnette , Bordeaux, and Williams were also present.
16 Upon hearing Petzak 's proposal, Union President Dampier (a rank-
and-file employee, who is a rather heavy woman ) likewise displayed anger,
slamming her briefcase shut and pushing her card table chair back from the
table in such a manner that the chair legs caught on the rug However,
Daniels had previously advised her that at the meeting Petzak would be
bringing up superseniority for the nonstrikers Because Dampier had no
personal knowledge of the lunch table exchange with Petzak on which
Daniels based this message , in determining what Respondent really said
during the July 14 negotiations I am unwilling to rely on her immediate
emotional reaction to company remarks which she might have then
interpreted in light of what Daniels had just told her.
17 While the identity of the company representative who made this
remark makes no real difference , I believe Dampier's and Bordeaux'
(Continued)
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meant preferential treatment, whereupon Petzak said he
was speaking more in terms of superseniority. Daniels
asked whether Respondent wanted "to lay off employees
who are more senior and keep employees of less seniority
only because they crossed the picket line?" Funkhouser
replied, "That is correct. It was a corporation decision and
not his decision to make . . . he knew that it was wrong to
make such a demand on the Negotiating Committee but he
was instructed to do so and he was doing his job."
Funkhouser added that if the Union did not accept this
decision, "it would be a long, hot strike."
The tenor of the foregoing conversations also provides
some corroboration for Daniels' version of his July 16
conversation with Petzak, which version I credit in its
entirety. Indeed, Petzak did not deny making the critical
remarks which Daniels attributed to him-namely, that
Respondent was giving the nonstrikers a day off with pay
because "like I told you, we owe them something and this
is what we are giving them." is
C. Conclusions Regarding Respondent's Motive for
the Disparate Payment
Section 8(a)(1) of the Act prohibits Respondent from
interfering with, restraining, or coercing employees in the
exercise of their right to engage in activities like the
June-July 1971 bargaining strike, which constituted con-
certed activity protected by Section 7 of the Act. Aero-
Motive Manufacturing Co., 195 NLRB No. 133; N.LR.B. v.
Washington Aluminum Co., 370 U.S. 9; N.LR.B. v. Erie
Resistor Corp., 373 U.S. 221, 233. Such prohibitions extend
to granting employee benefits for the purpose of inducing
employees to refrain from such activity in the future.
N.LR.B. v. Exchange Parts Co., 375 U.S. 405, 409-410;
Aero-Motive, supra. Moreover, because the strike herein
was called and conducted by the Union in support of the
Union's bargaining position, participation therein consti-
tuted union "membership" under Section 8(a)(3), which
forbids employers to discriminate with respect to "any
term or condition of employment" for a purpose of
encouraging or discouraging such membership. N.LR.B. v.
Great Dane Trailers, Inc., 388 U.S. 26, 32; Radio Officers'
Union v. N.LR.B., 347 U.S. 17, 43-44.
The credited evidence herein persuasively shows that
Respondent paid the nonstrikers for July 16 with a purpose
of rewarding employees for working during the strike-em-
ployee conduct which, as shown, constituted abstention
testimony that it was Petzak who made this statement rather than Daniels'
testimony attributing it to Funkhouser The testimony of both Daniels and
Petzak suggests that Funkhouser was anxious to shift the onus of taking
such a position.
Is Daniels' contradicted and credited testimony that Petzak said , "if you
don't like it, you can file charges with the Labor Board" gains some support
from the credited testimony that Funkhouser recognized Respondent's
supersemonty proposal to be wrong Daniels ' contradicted and credited
testimony that he began this conversation by referring to the absence of
employees at the plant that morning provides a credible prelude to the
ensuing exchange as established by Daniels ' uncontradicted testimony.
Partly because of this latter remark , I do not accept Daniels' testimony
(contrary to Dampier 's) that on July 15, Respondent objected to a July 16
return date for the strikers partly on the ground that Respondent was
closing the plant . If Daniels had known on July 15 about the closure I doubt
that he would have pointedly referred thereto on July 16 Moreover, if
Respondent has in fact objected to a July 15 return date for this reason, I
from protected concerted activities and from union
membership-and of thereby discouraging such strike
activity in the future. Thus, it is uncontradicted that on
July 16, Petzak specifically advised Daniels that Respon-
dent was going to pay nonstrikers for that day because "we
owe them something and this is what we are giving them."
Petzak's statement plainly constitutes "specific evidence of
a subjective intent" to discourage strike participation (Erie
Resistor, supra, 373 U.S. at 227).19 That Petzak was
accurately describing the motives for Respondent's deci-
sion to pay the nonstrikers for July 16 is substantiated by
Respondent's prior unsuccessful efforts to obtain more
lasting benefits for nonstrikers in order to reward them for
working during the strike. Thus, during the July 14
luncheon conversation, Plant Manager Petzak stated, in
Personal Manager Rozier's presence, that Respondent
"wanted super-seniority preferential treatment for the non-
strikers" ; that Respondent "felt that it owed them
something for being so loyal to cross the picket line and
wanted to do something for them." During negotiations
later that same day, Petzak again stated that Respondent
felt it "owed" the nonstrikers something, and Funkhouser
admitted that Respondent wanted to retain junior over
senior employees "only because [the former] crossed the
picket line"-a demand which Funkhouser concededly
"knew" was "wrong." 20 Moreover, particularly in view of
Respondent's open (albeit unsuccessful) attempts to afford
nonstrikers the more valuable benefit of superseniori-
ty-which "stands as an ever-present reminder of the
dangers connected with striking and with union activities
in general" (Erie Resistor, supra, 373 U.S. at 231),
Respondent's action in paying nonstrikers but not strikers
for July 16 "clearly demonstrated for the future the special
rewards which lie in store for employees who choose to
refrain from protected strike activity" (A ero-Motive, supra) 21
and "was capable of [having] a discouraging effect on
... future concerted activity" (Great Dane Trailers, supra,
388 U.S. at 32).22
The inference of unlawful purpose called for by
Respondent's statements to the Union is, if anything,
buttressed by Respondent's tendered defense. Plant Man-
ager Petzak, who was Respondent's only witness, testified
that Respondent decided io pay the nonstrikers for July 16
because "it was the just thing to do." However, Respon-
dent's brief virtually concedes that Respondent's basis for
concluding that justice called for such payments was the
recipients' nonparticipation in the strike. Thus, Respon-
doubt that it would have advanced others too, as it did (supra, fn 9)
19 See also, Olin Mathieson Chemical Corp. v N L.R.B. 352 U S. 1020,
affirming per curiam 232 F.2d 158, 161 (C.A. 4), N.LR.B. v Globe Products
Corp, 322 F.2d 694, 696 (C.A 4).
20 N L R B v. Erie Resistor Corp., 373 U.S. 221
21 See also N LR. B v. Exchange Parts Co., 375 U.S. 405, 409-410
The danger inherent in well-timed increases in benefits is the
suggestion of a fist inside the velvet glove . Employees are not likely to
miss the inference that the source of benefits now conferred is also the
source from which future benefits must now and which may dry up if it
is not obliged . The danger may be diminished if, as in this case, the
benefits are conferred permanently and unconditionally . But the
absence of conditions or threats pertaining to the particular benefits
conferred would be of controlling significance only if it could be
presumed that no question of existing benefits would apse in the
future; and, of course , no such presumption is tenable.
22 Accord: Olin Mathieson, supra
TECHNITROL, INC.
dent's brief states , "merely the fact that the `nonstrikers'
had been consistently working during the strike and were
regularly scheduled to work on July 16, 1971 by the
Respondent , was the sole basis for payment for time not
worked for July 16, 1971 to the ` nonstrikers.' "
Moreover , the remaining consideration of "justice" cited
by Respondent were mostly as applicable to the strikers,
who were not paid, as to nonstrikers who were. Thus,
Respondent 's reliance on the shortness of notice to the
nonstrikers that work would be unavailable on July 16
disregards the fact that among the nonstrikers who were
paid for July 16 were 8 nonstrikers whom Respondent had
advised at 3 p.m. on July 15 that they would be on layoff
status after the settlement of the strike (which was reached
about 3 hours later, and after all the nonstrikers had been
told not to report to work on July 16).23 Accordingly, these
8 nonstrikers had longer notice of the unavailability of
work on July 16 than did the strikers, who until after 6 p.m.
on July 15 had not the slightest reason to suspect that those
for whom work was available could not return to work as
soon as a contract was agreed to.24 Indeed , it is at least
arguable that all the nonstrikers had longer notice than the
strikers that work would be unavailable on July 16, since
rumors to that effect began reaching the nonstrikers at
noon on July 15 and were confirmed by a supervisor at 2
p.m. Furthermore, while the unavailability of work on July
16 was partly due to Respondent's desire to avoid possible
tensions between strikers and nonstrikers arising from
reports of alleged strike-related incidents of misconduct,25
Petzak conceded that he was not more apprehensive of
poststrike provocative or aggressive conduct from strikers
than from nonstrikers . 26 Finally , the strikers had no more
"control" (language used in Respondent's brief) than did
the nonstrikers over Respondent's decision to shut down
the plant. Respondent makes no claim (nor is there record
evidence which would support such a claim) that it
consulted with the Union about whether to shut down the
plant; indeed, the credited evidence fails to show that the
Union even knew about the shutdown in advance.
Moreover, Respondent 's motives remain suspect even
assuming that Respondent really equated the Union's
reluctant agreement to the August 2 reinstatement date
with agreement to the July 16 shutdown, and in addition
had forgotten that the Union was the statutory representa-
tive of nonstrikers as well as strikers . In the absence of a
strike in which some employees participated and some did
not, I think it unlikely that Respondent would have
regarded employees who had unsuccessfully protested a
shutdown as less deserving of protection against its adverse
23 1 reject the claim in Respondent 's brief that it believed the equities of
these eight were improved by the Union' s agreement that strikers would not
return on July 16. This agreement was not reached until after the
nonstrikers had been told not to report for work on July 16, and did not
cause Respondent to effect a temporary change in the instructions to these
eight.
24 Most of the strikers for whom work was available under the
contractual seniority clause would have been entitled to reinstatement even
under Respondent 's "supersentority" proposal , which would have effected
the immediate layoff of only about eight such strikers
25 There is testimony that there had been "mass picketing" at the
beginning of the strike , but none of the stokers was arrested on the picket
line. Certain nonstrikers were charged with trying to run down pickets with
79
results than employees who had never been consulted
about it at all.
In any event , assuming that the reasons which Respon-
dent advances for its disparate payments were innocent
reasons and partly motivated Respondent 's actions , unlaw-
ful motives likewise played a substantial role therein.
Accordingly, such disparate payments nonetheless violated
the Act ; "it is enough that a discriminatory motive was a
factor in the employer 's decision" ( Winchester Spinning
Corp. v. N.LR.B., 402 F.2d 299, 304 (C.A. 4)).27
Nor can I accept Respondent's apparent contention that
the Union effectively waived the strikers' statutory right to
nondiscriminatory treatment with respect to pay for July
16. Assuming that the Union could effectively waive such a
right,28 the record fails to contain the "clear and unmistak-
able" evidence required to establish such a waiver.29 The
record merely shows that on July 15 the Union agreed that
the strikers would not return to work on July 16. Far from
showing that the Union then knew that Respondent
planned to pay nonstrikers for time not worked on July 16,
the testimony shows without contradiction that during the
second negotiating session on July 15, when the parties
agreed to a contract and to reinstatement arrangements for
the strikers , Funkhouser assured the Union "that there
would be no monetary payments for the non-strikers for
work not performed; but that they would be treated just
like all other employees." Moreover, the credited evidence
fails to show that on July 15 the Union even knew that the
plant was to be shut down on July 16; and it is undenied
that during negotiations Respondent never offered the
Union members a day off with pay on July 16.
In view of my finding that the payments herein were
specifically motivated by an unlawful purpose, I find it
unnecessary to reach the alternative contention that such
disparate treatment was unlawful regardless of motivation.
Cf. Aero-Motive, supra; Hyster Co., 195 NLRB No. 7.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. International Union of Electrical, Radio and Ma-
chine Workers, AFL-CIO-CLC, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By paying employees who did not participate in the
June-July 1971 strike for a poststrike day (July 16, 1971) on
which Respondent elected not to operate its plant, while
not paying for that day the employees who did participate
in that strike, Respondent has interfered with, restrained,
and coerced employees in the exercise of the rights
guaranteed in Section 7 of the Act, in violation of Section
their automobiles, but these charges were "thrown out" by the magistrate's
court There is no other evidence that any employees (all but one of them
women) in fact engaged in misconduct during the strike.
26 This is not to say , of course, that a contrary view would necessarily
have justified action which disadvantaged strikers not shown to have
engaged in misconduct International Ladies' Garment Workers' Union v
N L.R.B., 237 F 2d 545, 549-552 (C.A.D.C.).
27 Accord: Permian Corp, 189 NLRB No. 131 enfd . 457 F.2d 512 (C.A
5); Hugh H. Wilson Corp v N L.R B, 414 F.2d 1345, 1353, fn. 17 (C.A 3),
cert . denied , 397 U .S. 935.
28 Cf. United Aircraft Corp , 192 NLRB No. 62
29 General Electric Co, 173 NLRB 164, enfd . 414 F.2d 918, 923-924 (C A
4).
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(a)(1); and has discriminated in regard to a term or
condition of employment to discourage membership in a
labor organization, in violation of Section 8(a)(3).
THE REMEDY
Having found that Respondent has engaged in certain
acts violative of Section 8(a)(1) and (3) of the Act, I shall
issue a Recommended Order directing the Respondent to
cease and desist therefrom. In addition, my recommended
Order will direct Respondent to refrain from in any other
manner infringing on its, employees' statutory rights. The
unfair labor practice which Respondent committed was the
end-product of Respcndent's strenuous efforts (supported
by an avowed willingness to accept a "long, hot strike"
over the issue) to obtain superseniority for nonstrikers in
order to reward them for their "loyalty." The policy which
underlay Respondent's unlawful course of conduct ema-
nated from Respondent's Philadelphia main office, which
persisted therein even though at least one of its own
representatives on the scene well knew that the superse-
niority demand was unlawful. Respondent conceived of the
disparate payments here as a lesser substitute for a policy
whose "destructive impact upon the strike and union
activity cannot be doubted" (Erie Resistor, supra, 373 U.S.
at 231, decided more than 8 years before Respondent
decided on its unlawful conduct here). Moreover, when
Respondent's initial "destructive" proposal foundered on
union res;stance, Respondent fell back on coercive and
discriminatory conduct which had a direct impact on the
pocket of every unit employee. In short, a "broad" order is
called for here because "danger of [other violations] in the
future is to be anticipated from the course of [Respon-
dent's] conduct in the past." N. L. R. B. v. Express Publishing
Co., 312 U.S. 426, 437; see also, N.L.R.B. v. Southern
Transport, Inc., 343 F.2d 558, 560-561 (C.A. 8).
I shall also require Respondent to pay each of the
employees who failed to receive pay for July 16, 1971,
because of their strike activity, I day's pay on the same
basis as the payments to the employees who were paid for
that day, with interest at 6 percent per annum computed in
the manner prescribed in Isis Plumbing & Heating Co., 138
NLRB 716, from the date on which the nonstrikers were
paid for that day. Aero-Motive, supra. Such payments shall
be made to each employee listed in Appendix A, infra; to J.
Bowen, Clock No. 1334, if she is a different individual
from J. W. Bowen, Clock No. 1344; 30 and to R. Williams
(Clock No. 1187) and M. Herring (Clock No. 792) if it
30 Joint Exhs 2 and 3 list a "J. W Bowen ," Clock No. "1344," as an
individual who worked during the strike and was paid for July 16 Joint
Exh I lists a "J Bowen ," Clock No . "1334," as an active employee just
before the strike
31 At the beginning of the strike , R Williams was on maternity leave,
and M . Herring was on personal leave of absence , scheduled to return on
June 25, 1971, 2 days after the stoke began.
32 In the event no exceptions are filed to this recommended Order as
provided by Section 102.46 of the Rules and Regulations of the National
Labor Relations Board , the findings , conclusions , and recommended Order
herein shall, as provided in Section 10(c) of the Act and in Section 102.48 of
the Rules and Regulations , be adopted by the Board and become its
appears in compliance proceedings that their failure to
work on July 15 was due to strike participation.31 I shall
also recommend that Respondent post an appropriate
notice.
Upon the foregoing findings of fact and conclusions of
law and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER32
The Respondent, Technitrol, Inc., Durham, North
Carolina, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Granting days off with pay to employees because
they refrained from lawful strike activity.
(b) Discouraging membership in International Union of
Electrical, Radio and Machine Workers, AFL-CIO-CLC,
or any other labor organization, by in any other manner
discriminating in regard to hire or tenure of employment or
any term or condition of employment.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Make the employees referred to in the section of this
Decision entitled "The Remedy" whole for loss of pay in
the manner set forth in such section.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, as well as all other records
necessary to analyze and compute the amount of backpay
due under the terms of this recommended Order.
(c) Post at its plant in Durham, North Carolina, copies of
the attached notice marked "Appendix B." 33 Copies of
said notice, on forms provided by the Regional Director
for Region 11, after being duly signed by the Respondent's
representative, shall be posted by the Respondent immedi-
ately upon receipt thereof and be maintained by it for 60
consecutive days thereafter in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 11, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.34
findings , conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes
33 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading . "Posted by
Order of the National Labor Relations Board " shall be changed to read,
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
34 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read
"Notify the Regional Director for Region 11, in writing , within 20 days
from the date of this Order, what steps the Respondent has taken to comply
herewith "
TECHNITROL, INC.
APPENDIX A
81
Clock Name Clock Name
972 L. Crawford 834 S. Murrey
1230 G. Thomasson 830 I. Mincy
1002 A. M. Carroll 274 F. Kinsey
1645 H. Mathis 873 T. James
1663 G. Wright 764 E. Dees
781 B. Gregory 1078 S. Greenhill
833 D. Murray 734 D. Bass
735 D. Blake 756 P. Cox
277 G. Burnett 775 0. Fox
878 H. Watkins 747 H. Cheek
1399 M. Sherron 1234 H. Dampier
761 E. Darnell 1286 J. Robinson
1808 L. Chandler 1328 H. Whilfield
269 J. Carwille 1382 N. Arrington
887 M. Winters 905 L. Mitchell
852 W. Ross 953 P. Williams
1220 M. High 958 B. Green
1366 W. Wuler 998 L. Gentry
1367 J. Williams 1044 B. Nunn
658 M. Ashby 1045 D. Lee
978 L. Garner 1331 H. Averitt
352 S. Clegg 40 N. Brinkley
828 B. Morcinows 124 L. Wilson
874 D. Vaughn 153 R. Bardeaux
777 A. Garth 405 P. Jones
178 C. Frye 522 L. Nunn
728 J. Ashford 950 M. Jones
737 A. Bostic 956 C. Ross
828 E. McDonald 1167 1. Parrish
95 V. Holt 1255 M. Thomas
770 J. Edwards 1542 R. Jones
175 M. Scoggins 1595 G. McGee
796 C. Hill 729 0. Atkinson
870 L. Tillman 857 K. Smith
1279 G. Green 790 J. Herndon
199 C. Barber 739 L. Browning
888 S. Pope 845 E. Pollard
808 K. Johnson 784 E. Harrington
1437 M. Johnson 855 L. Sherian
237 I. Kithcart 1253 D. Mendenhall
457 J. Wiggins 1289 N. Russell
263 M. Mills 1297 P. McMillow
3 96 M. Dunnigan 1350 F. Jones
1138 E. Pettiford 1383 B. Brown
1541 H. Belton 1472 P. Paschall
1641 M. Eubanks 1188 E. Sandling
1833 D. Cameron 1189 B. Turrentine
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
Clock Name Click Name
22 P. McDougald 1316 E. Mathis
183 E. Jones 1452 C. Pearson
236 P. Gilliam 347 L. Clark
1215 J. Cox 1640 G. King
846 R. Rago 78 P. Carroll
850 V. Rochelle 413 G. Maynard
1633 B. Morton 426 J. Hamilton
971 E. Clevenger 640 R. Smith
790 S. Greenhill 740 R. Mizell
1229 C. Cherry 611 B. Mosser
1266 L. Collier 738 V. Brooks
1471 V. Hargis 861 R. Sorrell
233 G. Rowland 112 R. De Long
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties had the opportunity to
present their evidence , it has been decided that we violated
the law and we have been ordered to post this notice. We
intend to carry out the order of the Board and abide by the
following:
WE WILL NOT grant days off with pay to employees
because they refrained from lawful strike activity.
WE WILL NOT discourage membership in Interna-
tional Union of Electrical , Radio and Machine Work-
ers, AFL-CIO-CLC, or any other labor organization,
by in any other manner discriminating in regard to hire
or tenure of employment or any term or condition of
employment.
WE WILL NOT in any other manner interfere with,
restrain , or coerce employees in the exercise of rights
guaranteed in Section 7 of the National Labor
Relations Act.
WE WILL pay one day's pay for July 16, 1971, with 6
percent interest , to those employees who failed to
receive such pay because they engaged in the strike
which ended on July 15, 1971.
All our employees are free to engage in lawful strike
activity, and to join or assist any union they want.
TECHNITROL, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material . Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board 's Office, 1624 Wachovia Building,
301 North Main Street, Winston-Salem , North Carolina
27101, Telephone 919-723-2300.