The Timken Roller Bearing Co.

National Labor Relations Board - Board Decisions

Dec 15, 1970

187 N.L.R.B. 273 (N.L.R.B. 1970)

TIMKEN ROLLER BEARING CO.
The Timken Roller Bearing Company and Internation-
al Union of Electrical, Radio and Machine Work-
ers, AFL-CIO-CLC, and its Local 705. Case
8--CA-5657
December 15, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
On August 13, 1970, Trial Examiner George L.
Powell issued his Decision in the above-entitled
proceeding, finding that Respondent had not engaged
in certain unfair labor practices and recommending
that the complaint be dismissed in its entirety, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel and the Charging
Party filed exceptions to the Trial Examiner's Deci-
sion and briefs in support of their exceptions.
Respondent filed briefs in response to exceptions of
the Charging Party and General Counsel.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
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 Trial Examiner, and hereby orders
that the complaint herein be, and it hereby is,
dismissed.
273
the Respondent, the Regional Director for Region 8 of the
National Labor Relations Board, herein called the Board,
issued a complaint on behalf of the General Counsel of the
Board on April 20, 1970, alleging violations of Section
8(a)(1) and (3) of the National Labor Relations Act, as
amended (29 U.S.C., Sec. 151 et seq.), herein called the Act.
In its duly filed answer Respondent, while admitting certain
allegations of the complaint, denied the commission of any
unfair labor practice.
Pursuant to notice a trial was held before me in Canton,
Ohio, where the parties were present, represented by
counsel, and afforded full opportunity to be heard, examine
and cross-examine witnesses, present oral argument, and
file briefs. Briefs were filed by Respondent and Charging
Party on June 19, 1970, and by counsel for the General
Counsel on June 22, 1970.
The complaint alleged that Respondent had violated
Section 8(a)(1) and (3) of the Act by discriminatorily
refusing to hire James J. Seldennght, on or about October
28, 1969, because he had engaged in a strike at General
Electric Company for the purpose of collective bargaining
thereby interfering with, restraining, and coercing its
employees and discouraging membership in the Union.
On the entire record 1 of evidence, my observation of the
witnesses as they testified,2 and on due consideration of the
briefs, I find, for the reasons hereinafter set forth, that the
General Counsel has failed to establish by a preponderance
of the evidence that Respondent violated the Act in the
particulars alleged, and I will recommend that the
complaint be dismissed in its entirety.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE EMPLOYER AND THE LABOR ORGANIZATION
I find as true the admitted allegations of paragraph 2 of
the complaint respecting the nature and volume of business
carried on by Respondent, an Ohio corporation engaged in
the manufacture, sale, and distribution of roller bearings at
its principal office and place of business in Canton, Ohio,
and conclude therefrom that Respondent is an employer
engaged in commerce within the meaning of Section 2(6) of
the Act.
I also find as true the admitted allegations in paragraph 4
of the complaint that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
11. UNFAIR LABOR PRACTICES
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE L. POWELL, Trial Examiner Upon charges filed
on November 7, 1969, by International Union of Electrical,
Radio and Machine Workers, AFL-CIO-CLC, and its
Local 705, herein called the Union or Charging Party,
against the Timken Roller Bearing Company, herein called
I P 3, 113 of the record is corrected to read, "I am in no way subject to
the General Counsel of the Board" Respondent's counsel has called the
attention of the Trial Examiner to several errors in the record The major
errors will be individually corrected and nothing need be done about the
James J. Seldenright, employee, was on strike at General
Electric Company in Canton, Ohio. When the strike began
he "stood picket duty 4 hours a week and looked for
employment." He applied for a job at Respondent on
October 27, 1969,3 by filling out the application for
employment. He noted thereon that he was an employee of
General Electric and was on strike. His testimony, on direct
examination, was that after filling out the application he
was interviewed by a lady as follows:
remainder
2 Cf Bishop and Malco, Inc, 159 NLRB 1159, 1161
3 He had placed the date as October 28, 1969, on direct examination.
187 NLRB No. 34
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q• Would you relate what you said and what she said
during the interview?
underground any longer, so I quit." On February 9, 1970,
he "went back to work at G.E."
Paul Rinaldi, International representative of the Union,
testified that Seldenright told him on November 4 that
11. .. he had applied for employment at Timken and was
denied employment because he was on strike." The next
day he called Parks, person-to-person, and told Parks what
Seldenright had related to him [Rinaldi1. Parks told him
.. they were not going to hire someone who was on
strike. It was unfair to the company they were striking and I
informed him that it was our position and opinion that this
was a violation of the law. And he told me that he was a
layman at law. As far as he was concerned, it was not a
violation of the law. I then told him I would file a complaint
and that was the end of the conversation."
A. Well, I went in and she went over the application
with me, and said that she noticed that I was on
strike from General Electric. I said I was and
asked if being on strike or not having a
termination slip from General Electric would
enter into the fact of whether or not I got a job
with Timken or not, and she said that she felt it
would.
She asked him what he meant by a termination slip and
he explained ". . . that it was a slip from General Electric
stating that I had quit and that I was available for
permanent employment at Timken." She then sent him on
the next step of applying for a job by sending him to take
the written tests.
Although upon a leading question by General Counsel he
testified , on direct examination , that he intended to work
permanently at Timken, he testified, on cross-examination,
that he never "severed his connection with G.E." He never
tried to obtain a termination slip nor did he ever tell
Respondent that he was severing his employment relation-
ship with General Electric.
After taking his examination, he was told to go home and
he would be called. He testified on direct that he stopped by
Parks ' office on the way out. Believing the man in the office
to be Parks, an admitted supervisor, he stepped into the
office,
... gave him my name, told him I was from General
Electric and that I was on strike. And I asked if the
strike and not having the termination slip with me had
anything to do with me not getting the job with the
other people that took the test. He said no, that
termination slip meant nothing to him. He didn't want
anything to do with me until the strike was over. He said
once the strike was over, if I wanted, to come back up
that day or so, if they hadn't called me by then. Why I
could come up and he would see what he could do
about putting me to work.
On cross-examination, he testified that the man told him,
"He didn't want to talk about employing me as long as I
was on strike." 4
Seldenright admitted, on cross-examination, that the
Board agent who interviewed him told him,
Timken didn't like to hire people who were out on strike
because they were looking for permanent employees
and since I was on strike, they didn't really feel that I
would quit . . . General Electric to go to work for
Timken.
The agent told him that Timken did not want to hire
temporary employees. Seldenright did not offer, at that
time, to get a termination slip.
But while still on strike Seldenright was successful in
getting a job on November 7 with Larson Sewer Pipe
Company at $2.36 an hour where he worked until January
23, 1970. He quit for a job paying $4.16 an hour at the
Midvale Coal Company but after 2 1/2 days he ". . . had
had enough of going down in the mine . . . couldn't work
The Respondent's Case
Mrs. Wingert, who, according to Seldenright, gave him
the test, could not remember Seldenright. She testified that
she does not discuss wages with applicants (Seldenright said
she did) and that it would be "impossible" to predict that he
could reach any given state in employment within a
specified period under the contract (Seldenright said she
did predict that within "6 to 9 months I should have worked
up into the average job . . . [of ] . . . about [$3.50] an
hour.") and that she did not recall any conversation with
anybody concerning a separation slip.
She testified that she has no authority to decide that an
applicant is unqualified and to tell him there is no job for
him. She wrote and circled "on strike" on the application
"to call attention to the fact that I felt the man was not
looking for permanent employment." She wrote this on the
application when Seldenright told her he was on strike after
he had filled out the application.
Miss Louanne Gibbs testified that she marked the scores
on Seldenright's tests (which he took after seeing Mrs.
Wingert); that those who failed the tests were supposed to
see Kauffman or Kendall; that there was nothing routine
about seeing Parks; that she didn't recall giving Seldenright
any instructions at all; and that she never had any
conversation with anybody but only told them to go
someplace if they failed the test. Seldenright had not failed.
His scores were better than average.
Floyd Kauffman testified that his duties were to conduct
a final interview with prospective employees and decide
which jobs they should take depending on what was
available. According to his testimony, the office Seldenright
identified as Parks' was his office. In this respect, I find
Seldenright was incorrect. Although not dispositive of
credibility, it does cast some doubt on Seldennght's
reliability and credibility inasmuch as it is overreaching to
claim a supervisor told him something which in fact was
told by an employee.
Kauffman credibly testified that the Respondent's policy
was to hire "permanent-type" employees and that Respon-
dent is "interested in regular employees who plan to stay
with us." The words "on strike" would indicate to him that
the applicant might not be a permanent employee although
4 At the trial, Seldennght identified this man to be Floyd Kauffman , an case also shows that Seldennght went to Kauffman 's office and not to
"employment interviewer ," and not Supervisor Parks The testimony in the Parks' This error by Seldennght is unexplainable
TIMKEN ROLLER BEARING CO.
he would not come to that conclusion without interviewing
the person. He kept Seldenright's application until the next
day expecting him to report but he did not. If Seldenright
had said, "I am terminating my connection with G. E." he
would have hired him.
Robert Parks, assistant personnel director, credibly
testified that after he had been asked [by Rinaldi] if he
would hire a person on strike he told [Rinaldi ] "... that it
would be an unfair condition as far as the Timken Roller
Bearing Company is concerned because of the extreme cost
of hiring an employee and the permanent nature not being
decided. [The applicant] would not be . . . permanent
.... (Rinaldi had denied ever talking about temporary or
permanent employment.) He went on to testify credibly
that Respondent did not consider hiring a person who
would remain for a short period of time. But a striker who
signified that he was terminating or was going to terminate
his employment with the struck employer, if otherwise
qualified, would be hired.
George E. Arris, executive assistant, corporate services,
credibly testified that the policy of Respondent is to hire
permanent employees only and that he told the Board agent
that if the applicant for employment could produce
evidence that he had severed his employment with the
struck employer and was looking for permanent employ-
ment he would be hired if otherwise qualified.
David Wirsching, corporate personnel director, credibly
testified that Respondent seeks permanent employees and
. . if an employee evidences to us that he has some
foreseeable limitation on his employment, we would more
than likely question his intentions to stay with us." He said
he reviewed the subject of turnover in employment in
September with the several personnel managers of the
plants of Respondent. At that time, they discussed the
probability that a striker, student, housewife, and school
teacher would turn out to be a temporary employee rather
than a permanent one and that those who interview
prospective employees should try to screen out temporary
employees.
Respondent introduced Exhibit 3, by Wirsching, which
set the costs of hiring labor grade 2 employees at $350.00
and labor grade 5 employees at $418.00. How these costs
were arrived at was thoroughly explained.
Wirsching also credibly testified that the Board agent was
asked if Seldenright would consider permanent employ-
ment and when he did not reply, John G. Ketterer, counsel
for Respondent, told him that " ... if Seldenright would
come to us now and say, `I want a permanent job,' we are
sure that he would be hired." Ketterer also asked the Board
agent, "Would Seldennght accept a job with us if we
offered it to him?" and the Board agent "indicated in all
probability he would not."
Finally Respondent introduced its present collective-
bargaining agreement with the Steel Workers.
Discussion and Conclusions
This is a case of an employee presently on strike applying
for employment at another employer and is not to be
5 Seldennght's admission that the Board agent told him Respondent
only wanted to hire permanent employees and his refusal to ask thereafter
275
confused with the case of an employee who at sometime
had struck and the employer refused to hire him because of
this in order not to have an employee who would exercise
his rights under Section 7 of the Act.
The evidence of the Respondent is that it had an
economic policy not to hire temporary employees. It
wanted permanent employees. It considered a person on
strike applying for employment as one applying for
temporary employment. There is no union animus in this
case, and this belief is not unlawful.
Mrs. Wingert, who interviewed Seldenright, marked
"on strike" on the application to signify that she believed he
wanted only temporary employment. Seldenright never
disabused anyone of this belief. I can only find that he
wanted to enjoy the rights of a striking employee to return
to his employer when the strike ended and at the same time
work during the strike at Respondent. Although, on a
leading question by the General Counsel, he testified he
intended to work permanently at Respondent he never
conveyed that impression to Respondent. He never told
Respondent that he wanted permanent work. His apphca-
tion showed that he still worked for General Electric. He
testified, on cross-examination, that he never severed his
employment with General Electric. He never told Respon-
dent that he had severed or was severing his employment or
that he wanted to change jobs. Rather, he put the case in a
hypothetical manner and questioned would he be hired if
he submitted proof of a termination slip. His very actions of
working for two other employers before returning to
General Electric when the strike ended tends to show his
intention was to work on a temporary basis.
There is nothing wrong with a striker working for others
during a strike, but, so long as he considers himself still a
striker and not a former employee of the struck employer, he
is only seeking temporary employment. True, he could
change his mind later on and stay with the second employer
after the strike ended but this does not change the fact that
he was only applying for temporary work. If the hiring
employer was only hiring permanent employees it may
refuse to hire one on strike without violating the Act.
Seldenright told Respondent that he was striking General
Electric which warned Respondent that he had at least a
mental reservation to return to General Electric. Respon-
dent did no more than heed the warning.
I find that the General Counsel has not sustained his
burden of proof that Seldenright applied for a permanent
job and was not hired because he was on strike.5
Accordingly, I will recommend that the complaint be
dismissed in its entirety.
CONCLUSIONS OF LAW
1. The Timken Roller Bearing Company is an employer
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, and its Local 705, is a
labor organization within the meaning of Section 2 (5) of the
Act.
for permanent employment is further evidence that he was never intending
to work for Respondent except during the stoke
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The refusal to hire James J. Seldenright was not to
discourage membership in the Union , but was based on
economic j udgment free of union considerations.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
it is recommended that the complaint be dismissed in its
entirety.